EPA v. STATE WATER RESOURCES CONTROL BOARD
Legal provision: Federal Water Pollution Control (Clean Water), plus amendments
Argument of Friedman
Chief Justice Warren E. Burger: We will hear argument next in 1435, the Environmental Protection Agency against California and others.
Mr. Friedman, you may proceed whenever you are ready.
Mr. Friedman: Mr. Chief Justice, and may it please the Court.
This case which is here on a writ of certiorari to the Court of Appeals for the Ninth Circuit presents the same issue as the last case with respect to the need of federal instrumentalities to obtain state permits, except it arises under the 1972 Amendments to the Federal Water Pollution Control Act.
The operative language is the same except for the addition of six words that I will come to later.
Section 313 of the Water Act like Section 118 of the Air Act requires that federal instrumentalities comply with the state requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements.
Because of some differences between the statutes however, I would like briefly to outline to the Court, the regulatory scheme under the Water Act.
Prior to 1972, the Federal program for the control of water pollution was based mainly upon the development by the States of what are called water quality standards.
That is a general standard as to the level of pollutants that would be permissible within water and the Federal enforcement role was rather limited.
The 1972 Amendments marked a dramatic shift in the emphasis and the method by which water pollution was to be controlled.
Instead of stressing primarily the quality of the water generally, the Act decided to deal with what is called point source pollution, the specific individual, the specific firm that is polluting and the focus was on what I call technology-based limitations.
That is trying to devise the best technology possible in order to reduce the pollutants that each particular point source makes.
And this particular technique, the control of the point source pollutants was to be accomplished through a permit system.
So that this case is unlike the other case and that, in the other case there was no reference at all to anything about permits.
In this case there is an explicit scheme for permits.
Now, what the statute does is it requires that the Environmental Protection Agency to develop nationwide standards, standards for effluent limitations for point source pollutants in various industries, it is on industry by industry basis and for example, they might have a standard that for cement plant, the cement plant cannot discharge more than a certain amount of phosphate for each hundred tons of cement produced.
It is that kind of thing to determine the maximum permissible pollutants from each particular source.
And it is made illegal under Section 301 of the act for any person to discharge pollutants into any navigable waters except in compliance with the effluent limitations that the Federal Agency has developed for the particular sources except in compliance with the general water quality standards that the Federal Government and the States have developed and except in compliance with the permit provisions of Section 402 which has created something called the National Pollutant Discharge Elimination System.
And under that system, EPA has undertaken decisions required to issue permits to an individual discharges as long as those discharges meet the standards it has provided for effluent dischargers.
And to date, it is issued more than 30,000 of these permits.
That is, the Federal agency has issued more than 30,000 of these permits.
The Act further provides however that a State may itself submit a plan under which it will issue permits and if the State’s permit plan needs a large variety of specified conditions in the statute as well as meeting the general standards then the administrator of the EPA is directed to approve it and once he approves it that under the statute automatically terminates his authority to continue to issue permits.
And, thus far the administrator of the EPA has approved 27 different state plans for state issuance of permits.
The EPA has issued rather detailed regulations governing the state to permit plans.
And one of those regulations which is at issue in this case is that plans that he approves for State permit programs do not cover agencies and instrumentalities of the Federal Government.
This case arose out of these facts.
The States of California and Washington submitted to the EPA their plans for a programed permit.
EPA approved those plans but indicated in each instance that the plan did not cover permits for federal facilities and that the administrator would therefore continue to issue permits for federal facilities.
In accordance with the provisions of the statute the States then took this ruling to the Court of Appeals for the Ninth Circuit, which held that under this statute the administrator has no authority to deny the States the right to issue permits for Federal facilities.
The arguments that I have just made under the Clean Air Act are, we think equally applicable to this statute.
Section 313, obviously was modeled upon Section 118.
The legislative history of this section like that of Section 118, again reflects repeated emphasis that what the Federal authorities ought to comply with are the State emissions standards, the substantive things, the effluent limitations, same requirements.
There is nothing in this history like that under the Clean Air Act that indicates Congress was intending to require federal facilities to obtain State permits.
Now, there is one distinction between the language of Section 313 and the language of 118, which both the Court of Appeals and the States of California and Washington argue calls for different result.
This is a provision which where after the statute says that they shall comply with State and Federal requirements to the same extent as any other person.
It then adds the phrase including the payment of reasonable service charges.
Justice Potter Stewart: Did you say that they think this -- that language calls in leads to a different result in this case or rather just makes it a stronger case --
Mr. Friedman: Makes it a strong -- there is a suggestion, there is a suggestion.
Justice Potter Stewart: A stronger case than Kentucky’s case.--
Mr. Friedman: Then Kentucky’s case.
And also the suggestion that if the Court were to agree with us in the Kentucky case, it could go the other way in this case.
The argument is made --
Justice Potter Stewart: I thought vice versa, very well, yes, if the Court could agree with you, we should agree with you --.
Mr. Friedman: If they hold it there is no authority to acquire permits under the Clean Air Act.
Now, the argument is that the words, including the payment of reasonable service charges refers to charges that the State might impose for issuing permits and that since a permit might be viewed in the nature of attacks, Congress inserted this provision, in order to make it clear that the Federal facilities could pay for the State permits.
We think to the contrary that what this refers to is to make it clear that the Federal facilities will have to comply with any State requirements relating of treatment of waste materials.
In this statute there are number of provisions which provide for vast Federal funding and research into the development of adequate local waste treatment facilities.
And the charges for those facilities are naturally extensive and we think what Congress intended in this provision was that if a State should conclude as part of its plan, that waste material would have to be processed through a local treatment facility, that the federal instrumentalities would have to comply with that and they would have to pay reasonable charges therefore, not any charge is the State, surfeit to impose but reasonable charges.
I am told that the fees for permits are relatively modest.
An average permit fee may sometimes be $25.00 to $50.00 and State of Washington which is the respondent here makes no charge for a permit fees and it seems most unlikely that Congress was concerned about that.
Much more probable in the light of this whole statute it seems to us is that Congress wanted to make it clear that in complying with the Federal standards, in complying, I am sorry, in complying with the State standards Federal facilities would, if the State required compliance and going through the local waste treatment plants would have to do that.
Now, here again, and under this statute as under the Clean Air Act, there are number of provisions within the statute itself, which we think are inconsistent with the view that Congress intended to require the Federal facilities to get the State permits, which once again as I just mentioned and that is why I want to repeat it, require him to get the State permit means, the State can tell him how to operate.
For example, there are several provisions which authorize the States to adopt certain procedures and certain standards except with respect to point sources of pollution owned or operated by the United States.
One example is Section 308 which provides and requires that permits to be approvable must have detailed provisions governing, monitoring, inspection and entry on to plants, obviously designed to ensure that there is compliance with the substantive standards contained in the permits.
The statute however explicitly provides that the State standards are not applicable to Government facilities.
Now, once again it seems rather unlikely to us that if Congress intended to give the States the authority to require Federal facilities, to obtain permits and then turned around and said to the States, you have got to have in your plans adequate provisions for monitoring and inspection to make sure that your permit holders are complying with these standards, and at the same time would have said, but you cannot do this with respect to Federal facilities.
It is all part of the same thing.
If the inspection and monitoring is that important for compliance and if the Federal facilities were intended to have to get State permits it seems clear to us, Congress would have said and the Federal facilities also are subject to these inspection requirements but Congress did not.
There is a similar thing with respect to so-called new sources of pollution and the statute is explicit that the United States must meet the new sources.
Once again, the Environmental Protection Agency may authorize the States to apply and enforce their own standards of performance for new sources, if they equal the Federal standards except for new sources owned or operated by the United States.
Here too, we think it most unlikely that if Congress had intended to require and authorize the States to issue permits for Federal facilities it would have denied the States the authority to enforce those permits against Federal facilities where the very standards sought to be enforced of those contained in the permits.
We have set forth in our briefs a number of other examples and instances in which the whole statutory scheme, the use of the language, the way it structured the various provisions seem to us inconsistent with the notion that when it used these general words to comply with the requirements respecting pollution of States, Federal and local sources that Congress intended thereby to give the States in effect what amounts to a veto power over the operation of Federal facilities, usually on Federal land within the State unless, the State decides that it wishes to authorize the Federal facilities so to operate.
Once again, as in the Clean Air Act we think something much more explicit and specific is required than what we have in either this language or in this legislative history which -- I reiterate again, indicates that what Congress was concerned about was the effluent limitations and not the procedures that the State might device in order to achieve compliance with those requirements by the private firms and people within the State.
Chief Justice Warren E. Burger: Very well, Mr. Friedman.
Argument of Roderick Walston
Mr. Roderick Walston: Mr. Chief Justice and may it please the Court.
The Solicitor General argues in this case that this case is very similar to the Kentucky case.
However, in one fundamental respect our case is very different from the Kentucky case and that is that our case has a specific permit provision in Section 402 of the Water Act that is applicable to all dischargers.
Thus there is expressed authority in the Water Act for States and the administrator himself issue permits to discharges and that -- as that authorities found in Section 402 of the Water Act and thus the only issue on the Court is whether the States have authority to apply this permits to federal dischargers.
So there is a fundamental difference between this case and the Kentucky case in that respect.
And the administrator argues that Section 313 which imposes an obligation on Federal dischargers to comply with all the requirements under the Act does not include permits under Section 402.
Now, that result would lead to a very illogical result especially as applied to the administrator’s case.
For the administrator concedes that federal dischargers have to comply with permits which he, the administrator himself issues in States where he operates his own NPDES permit program.
Well, what is the source that obligation, where does the administrator himself get authority to issue permits to federal dischargers.
That authority has to be found in Section 313 of the Water Act because that is the only provision in the Water Act that defines the obligation of federal dischargers under the Act.
And that section specifically provides that federal dischargers must comply with both State requirements and Federal requirements.
And therefore the word requirements in 313 must include Section 402 permits or otherwise the administrator himself would lack authority to issue permits to Federal dischargers.
And under that result of course federal dischargers would be entirely exempt from the 402 permit provisions of the Act and the administrator himself in this case has conceded that that is not the result to be implied that Congress indeed intended for federal dischargers to comply with the 402 permit program.
And thus the administrator’s position results in a very difficult dilemma which the administrator has yet failed to address in this case.
Either the word requirement includes Section 402 permits or it does not.
And if it does, it must include permits issued by the States and if it does not, the administrator himself lacks authority to issue permits to federal dischargers.
Now, the Court asked a number of questions in the Kentucky case that I think are partially applicable at least to the issues in this Court, in this case.
First, Justice Burger, Marshall and Blackmun asked the question of why does the State have authority or need authority to issue permits to federal dischargers?
Well, the answer in our case is that the permit process itself is the very process by which an effluent limitation is developed with respect to a federal discharger.
The permit process is the process which enables the State to get the necessary information it needs to define the effluent limitation to be imposed on the discharger himself.
There is a number of questions that have to be asked of these dischargers and we have to get answers from them, for instance, what are the --
Justice William H. Rehnquist: But if, they are willing to give you the answers apparently.
Mr. Roderick Walston: Pardon me.
Justice William H. Rehnquist: They are willing to give you the answers apparently. They are willing to supply the information.
Mr. Roderick Walston: Well, they are not willing to supply the information that the State necessarily requests.
For instance, California has an administrative procedural process which requires all dischargers to come to the State to undergo cross-examination to offer documentary data and so forth.
That I suppose would be classified as a procedural requirement under the administrator’s view.
Justice William H. Rehnquist: And you say the federal facilities in California have been unwilling to comply with or substantially comply with that requirement?
Mr. Roderick Walston: As practical matter they have not.
As a practical matter the federal dischargers in California have historically complied with State administrative procedural requirements.
They have gone to the States or to the State of California and they have got permits from the State of California.
And thus the administrative practice in California is somewhat inconsistent with the position, the theoretical position being advanced by the Solicitor General in this case.
Justice William H. Rehnquist: Well, as a practical matter that is California up to now have been able to get the kind of information you say that it is essential for it to get in order to evolve these effluent limitation?
Mr. Roderick Walston: Yes.
And the reason for that is that the federal dischargers in California have in fact complied with the procedural requirements of California.
Obviously if they were not required to so comply as the Solicitor General says they need not comply then California could not get the information that it has historically obtained through the administrative permit process.
There is a second answer to the argument or the question which was posed by the various justices and that is this, the administrator himself cannot issue permits to federal dischargers once he approves a State program by virtue of Section 402 (c) of the Water Act.
That provision requires the administrator to suspend his permit issuing authority in the entire State after he approves the State program.
Thus, if the administrator himself cannot issue these permits then nobody can according to Solicitor General’s position in this case.
Chief Justice Warren E. Burger: Do you agree that the well established doctrine is that from the Federal Government surrenders its immunity to be accomplished only by very clear expressed statements?
Mr. Roderick Walston: I think that is a probably a correct statement of law Your Honor.
But I do not think the question is really applicable here.
Section 313 of the Water Act constitutes a clear waiver of Federal immunity from State regulation.
It specifically provides that federal dischargers have to comply with State and local requirements.
And as a matter of fact the Solicitor General concedes that this language obligates federal dischargers to comply with State of limitations.
So there has been a waiver of sovereign immunity or Federal immunity in this case, all we are talking about is the extent or the scope of the waiver.
As I say, it seems to me implicit in the concept that the State has the authority to issue effluent limitations to assume they are from -- the State has the authority to issue the permit which contains those limitations.
Justice Thurgood Marshall: But the Government does not have to follow it?
Mr. Roderick Walston: Pardon me.
Justice Thurgood Marshall: There is nothing that says that Federal Government has to follow it?
Mr. Roderick Walston: Section 313 --
Justice Thurgood Marshall: I understand the Solicitor General’s point is that if you want to subject the Federal Government to permit, you have to say it.
Mr. Roderick Walston: Well we think that Congress said that in Section 313 (Voice Overlap) Pardon me.
Justice Thurgood Marshall: (Inaudible) practically?
Mr. Roderick Walston: Yes.
And we think that Congress spelled that out in Section 313. Congress said --
Justice Thurgood Marshall: And it included permits.
Mr. Roderick Walston: Well, if it must have included permits because this is the only -- Section 313 is the only authority that the administrator himself has to issue permits the federal dischargers.
Justice Thurgood Marshall: I could feel, I do not know whether you have to give up a certain point.
Because I understand the Government’s point, they are willing to go along with everything but this permit did.
Mr. Roderick Walston: Yes.
And we feel that that would make it very difficult for the State to actually develop it.
Justice Thurgood Marshall: Well, would be it impossible for the State to do it?
Mr. Roderick Walston: do not think so.
I do not
Justice Thurgood Marshall: (Inaudible)-- difficult.
Mr. Roderick Walston: I do not think that it would be possible for a State to develop an effective, meaningful limitation, effluent limitation unless it -- somehow had the authority to engage the --
Justice Thurgood Marshall: That would be more difficult for you to track that now.
Mr. Roderick Walston: Well, I suppose it would not be impossible, I suppose that is true but it is certainly very difficult.
I think that is true.
Of course, the State could shoot in the dark --
Justice Thurgood Marshall: It just wants the Federal Government to say we are bound by you to the state --
Mr. Roderick Walston: Yes, I suppose that is true.
In other words the State could --
Justice Thurgood Marshall: And the next step is by permit?
Mr. Roderick Walston: Yes.
Maybe it is very difficult --
Unknown Speaker: (Voice Overlap) the less.
Mr. Roderick Walston: Pardon me.
Justice Thurgood Marshall: And you will not settle for less?
Mr. Roderick Walston: We do not think -- we will not settle for less because we do not think Congress settled for less.
We do not see a distinction between the permit process and the effluent limitation that is contained in the permit.
I suppose in answer to your question, Justice Marshall that the State could certainly shoot in the dark, it could throw out some effluent limitations based on very poor data that Federal discharger himself might voluntarily submit.
But we would not have any insurance that that is a very meaningful effluent limitation.
We cannot do that, we cannot form an effective meaningful limitation unless we have got the federal discharger in there to find out for example, how long it is going to take him to solve his water pollution problems.
In others, what kind of schedule of compliance for example, has to be built into the -- the Federal permit --
Justice William H. Rehnquist: What you are suggesting Mr. Walston is that the State substantive regulation do not simply exist as a body of common law that can be plucked out and applied to a particular individual by the EPA but rather that they are developed in the permit application procedure almost on a case by case basis.
Mr. Roderick Walston: That is precisely correct and that is the whole concept Justice Rehnquist to the permit system in the Federal Water Pollution Control Act.
The permit system enables the States or the administrators, the case maybe to develop effluent limitations that are applicable on a case by case basis, permit by permit basis to each individual discharger.
The State cannot develop a broad effluent limitation that is broadly applicable to everybody.
It has to develop a limitation by looking at the exigencies of the specific particular discharge.
And, the Solicitor General’s position would not allow the States to do that.
Next, Justice Powell asked the question of whether the States could prevent Federal dischargers actually from operating.
Could the States for instance shut down Fort Knox?
Well, there are two answers there.
First of all, Section 313 of the Water Act specifically authorizes the president to exempt a Federal effluent source if he deems that exemption to be in a paramount interest of the United States.
And thus, the president could simply say, you cannot shut down Fort Knox, State of Kentucky, simply because I exempt Fort Knox.
Chief Justice Warren E. Burger: (Inaudible) the power to shut down or not shut down?
Mr. Roderick Walston: I suppose hypothetically that if the State refused to issue a permit the discharger then could not operate.
I suppose that is true.
As a practical matter the States do not that.
They issue the permit and then impose the effluent limitations in the permit itself.
So, the effluent limitations are the conditions, which the discharger must meet and this leads into the second response to that question and I think Justice Rehnquist appreciated this response.
We get the same result even under the administrator’s view of this case.
For he concedes that federal discharger have to comply with State effluent limitations.
Well, it is the effluent limitation that defines the specific nature of the obligation on the federal discharger, the permit itself is little more than a certification that the dischargers are complying with those limitations.
But if the effluent limitations that tells the discharger what steps he must take to correct water pollution, to stop polluting the water and when he must take these steps.
And so hypothetically, I suppose a State could develop such a stringent effluent limitation Justice Powell that the practical effect would be to shut down the Federal facility.
Justice Thurgood Marshall: Mr. Walston, suppose --
Mr. Roderick Walston: The administrator concedes that --.
Justice Thurgood Marshall: The State says that you must not discharge more than one point million whatever it is, certain kind of liquid into a stream, right?
Mr. Roderick Walston: The State says that?
Justice Thurgood Marshall: Yes.
Mr. Roderick Walston: Yes.
Justice Thurgood Marshall: The Federal Government has got to abide with it, right?
Well now, I suppose the State says, you cannot discharge more than one point blank the same figure, can also get a permit?
Mr. Roderick Walston: Yes.
Justice Thurgood Marshall: What is the benefit of the permit?
Mr. Roderick Walston: The permit enables the States to make that determination about the 1.1 figure that the federal discharger has to live with.
If the State cannot issue the permit and engage in the administrative process that leads to the issuance of the permit, it may not know whether the 1.1 figure is correct or whether 1.2 figure would be correct or whether the figure should be five or three or two or whatever.
Justice Thurgood Marshall: Well, once the Federal Government said, you go ahead and tell me how much I can do, right?.
Is that okay without a permit?
Mr. Roderick Walston: I did not quite appreciate the question.
Justice Thurgood Marshall: The Federal Government says we have got plant x, you tell us how much we can discharge and we will buy it back but we will not give you – we will not apply for a permit.
Mr. Roderick Walston: Well, certainly the Federal Government in that case, the federal discharger has to comply and live with that particular limitation.
Justice Thurgood Marshall: I said they said that.
Mr. Roderick Walston: Yes.
They agree with that.
Justice Thurgood Marshall: Would they still have to get a permit?
Mr. Roderick Walston: Yes under Section 313 --
Justice Thurgood Marshall: Why?
Mr. Roderick Walston: Well, Section 313 of the Water Act requires that.
Section 313 requires federal dischargers to comply with State requirements respecting control and abatement of pollution.
Justice Thurgood Marshall: And if we do not agree with you on what 313 means and that is it?
Mr. Roderick Walston: It is not only that is it.
It means that the federal dischargers themselves are completely exempt from Section 402 permit provisions.
And the administrators, this is the --
Justice Thurgood Marshall: But before we get to all of that, you lose.
Mr. Roderick Walston: Well, we lose the administrator, the administrator loses his own authority to issue permits.
Justice Thurgood Marshall: Do you agree that you lose?
Mr. Roderick Walston: Yes, I certainly agree with that.
Justice Potter Stewart: And your point is that, under any consistent reading of the statutory language and the administrator too would lose any authority to issue permits.
Mr. Roderick Walston: Precisely.
Justice Potter Stewart: I understand your basic 402 argument, which I understand.
I think you are beginning to explain a specific and more limited argument with respect to 402 (c) a few minutes ago when we interrupted you with question I am not sure I understand.
Mr. Roderick Walston: The 402 (c) requires the administrator to suspend the issuance of permits in to a State once he suspend his issuance of permits in that particular State once he approves the State program.
And thus, under that result the administrator once he approves the State program does not have authority to issue permits to anybody.
Federal dischargers or anybody, so what I am saying is that once the administrator approves a State permit program he does not have any authority to issue permits to federal dischargers under the language of the Act.
Well, that leads the result into the --
Justice Potter Stewart: That language, can you tell us where the language is?
Mr. Roderick Walston: Yes, it is in the Section 402 (c) of the --
Justice Potter Stewart: Where in the papers filed, in the briefs served.
Mr. Roderick Walston: Page -- California’s brief, page 11.
Justice Potter Stewart: Thank you.
Mr. Roderick Walston: And along these lines, I would like to confirm that result, Justice Stewart by quoting the Senate and House Report which describe the effect of Section 402 ©.
Now listen carefully, this is the House Report now page 854 of the one legislative history volumes, “upon approval of the State program, the administrator would suspend the issuance of permits for dischargers in to the waters of that State” that is the House report.
The Senate report
Justice Potter Stewart: Has specific reference to 402 (c)?
Mr. Roderick Walston: And the senate report and we did quote the Senate report in our Brief page 10 at footnote 10, states as follows, “therefore the bill provides that after a States submits a program which meets the criteria established by the administrator pursuant to regulations, the administrator shall suspend his activity in such State under the Federal permit program.
Thus, once the administrator approves the State program he loses the authority to issue permits that any discharger Federal or otherwise and that he has no authority to issue permits to Federal dischargers once he approves the State program”.
Unknown Speaker: Mr. Walston can I ask the question about the Federal permit program?
As I read 402 (a), the whole Federal permit program is permissive rather than mandatory.
Do you understand that the Federal Government is required to issue permits rather than for example setting general limitations which must be provided across the board?
Mr. Roderick Walston: We believe that section 402 is mandatory as quite the federal dischargers by virtue of section of 313.
Unknown Speaker: That everything must be done on a permit by permit basis?
Mr. Roderick Walston: Yes, that is correct.
Thank you Your Honor.
Chief Justice Warren E. Burger: Mr. Attorney General.
Argument of Slade Gorton
Mr. Slade Gorton: Mr. Chief Justice and may it please the Court.
Mr. Justice Stevens, the basic answer to your last question is that there are of course a number of Sections of this Act which are of great importance.
The one which answers your last questions is section 301 which is the prohibitory section of the Act.
That says thou shall not without a permit.
This means --
Unknown Speaker: I do not think it quite says that Mr. Gorton, I do not so read it maybe that is the way it is generally understood.
Where do we find that?
Mr. Slade Gorton: All right, section 301 (a) except—
Unknown Speaker: We will find that in the papers --
Mr. Slade Gorton: I am not sure but 301 is quoted in full in any of the Briefs that maybe in ours.
Unknown Speaker: It says, except that it is in compliance with this section in Section 402 among other section.
Mr. Slade Gorton: Right, the discharge in a pollutant.
Unknown Speaker: The discharge is unlawful.
But what is it that says one is not in compliance with 402 if there has been no permit program instituted?
The permit program provided by, specified in 402 is permissive as what I am suggesting?
Unknown Speaker: And as the federal permit program.
Mr. Slade Gorton: The Federal Permit Program is a -- thus it is true that the Federal Program says that the second line of section 402 says that the administrator may issue a permit --
Unknown Speaker: I could not read that I just suggest this is possibility to allow a specific permit of greater discharge than the limitation would normally authorized.
Mr. Slade Gorton: Yes, there is no question about that.
This is why we have—
Unknown Speaker: So well, just to get my thought out so that you can address would it not be consistent with the scheme of the Act for the Federal Government have a general effluent limitation.
And then some permits which are more liberal.
Mr. Slade Gorton: Yes, as a matter of fact that is the scheme of the program.
We have certain goals set out in the Statute for 1977, others for 1985.
Those goals are not met by the conditions of the permits which are issued today.
Unknown Speaker: Then would it not follow that the abandonment or suspension of a Federal Permit Program within a given State would not remove all Federal control over discharges within that State.
Mr. Slade Gorton: No, I do not.
Unknown Speaker: The limitations would still apply
Mr. Slade Gorton: No, because the State under section 510 has the right to impose more stringent limitations than does the Federal Government itself.
That State authority is specifically not only preserved but perhaps as you may say created by Section 510.
Unknown Speaker: Do you understand just to get my last question so I understand this.
Do you understand that the Federal Government would have the authority to disapprove of a State permit program on the ground that it was too severe?
Mr. Slade Gorton: No, the Federal Government would not have the authority to disapprove because of 510.
We must meet nine qualifications under section 402 (b) to be authorized to have a permit program.
When we have met those nine qualifications, we are entitled to manage our own permit program but that permit program and our effluent limitations maybe more respective than those which the EPA Administrator had operated under section 402 (a).
This is consistent, I would like to go back if I can and walk through several sections of the Statute and just a bit of history.
Up in the 1970 of course as the Solicitor and we agree.
Only the States could issue permits in water pollution control matters.
In 1970, the president discovered the 1899 Refuse Act and the core of engineers begin to issue permits to water polluters.
This of course created a duplicatory and relatively wasteful system besides having the core of Engineers involved in it.
Which it was one of the principal designs of the 1972 act to cure, it wanted to get rid of that duplicatory system.
So the Permit System in 402 first says, under 402 (a) EPA issues permits.
Second, it says in section 402 (b) and this was expected and it is explicitly listed in the sponsor’s remarks about the Act.
That as soon as the States met Federal qualifications.
The EPA must approve the State plan.
Not may at one point it did say may.
But as the Act that was passed, it said must approve the States plans and under 402 (c) must promptly suspend the issuance of its own permits.
Now, 402, we all agree it contains no exemptions for Federal agencies.
But during the course of the passage of that Act through Congress at one point it did contain an exemption for Federal agencies from one relatively limited element of section 402.
But that was not only taken out by the conference committee but the conference committee report shows that it was taken out conscious of the fact that the Federal Government should not have that specific exemption.
Section 301 refers to persons, the prohibition of section 301 refers to persons and as the basic prohibitory section of the Act.
But Federal agencies are not included within the definition of persons in Section 502, subsection 5.
So if it were not for section 313, EPA could not issue permits to federal entities.
And of course, neither could States.
Section 313 as my colleague from California has already said is the reason EPA can issue permits as well the States.
And it lands them directly together.
It says Federal agencies are to comply with Federal and State requirements respecting control of the abatement of pollution to the same extent that any person is subject to such requirements.
So the Federal agencies seek 402 (a) permits or 402 (b) permits by a reason of exactly the same authority.
And if the word “requirements” in the statute Mr. Chief Justice, is not broad enough to include procedural matters, i.e. State permits under 402 (b) it is not broad enough to include Federal procedural requirement or permits under 402 (a).
The authority of the EPA and the States are identical.
Now not only is this a wrong and absurd result because it would free Federal agencies from any obligations to secure any permits at all and because the dictionary definition of the word requirements has to be totally distorted for you to come to that kind of answer.
It is also wrong-
Justice John Paul Stevens: Mr. Gorton, may I go back to my prior point just where you are now.
It would not however free the Federal agency from the requirement of complying with the applicable effluent limitation is that not right?
Mr. Slade Gorton: That is right.
Justice John Paul Stevens: Yes.
Mr. Slade Gorton: That is right.
This part of the distinction would still theoretically exist but neither we nor EPA makes the claim of course, that EPA does no want make claim that Federal entities are free from the permit, its own permit requirements.
But there is another matter which helps in this connection as well.
And this may answer directly your question.
If you go to section 505 F6, 505 F6 or 505 is the so called citizen suit provision of the statute which means that if EPA does not do its job and the State does not do its job.
A citizen can come in and bring a lawsuit in order to enforce the Act.
Under that, an effluent limitation, i.e. the substance that the Solicitor is talking about is defined in 505 F6 as a section 402 permit.
That is to say there is no distinction between substance and procedure.
And then in parenthesis which is also includes a section 313 requirement.
Right back to the very word which the Solicitor claims does not include permits.
Effluent limitations permits requirements, all fall within the same category
Justice John Paul Stevens: Have you reproduced anything than we have here?
Mr. Slade Gorton: Page 19 of—
Unknown Speaker: (Voice Overlap)
Mr. Slade Gorton: It will be on page 19
Justice John Paul Stevens: Of what, of your Brief?
Mr. Slade Gorton: No, this is the California Brief.
Justice John Paul Stevens: Of the California Brief.
Mr. Slade Gorton: I think it is probably in the appendix to my Brief as well.
Justice John Paul Stevens: Alright.
Mr. Slade Gorton: Well, of the Gray.
Unknown Speaker: Is this color, whatever the color is, funny color.
Mr. Slade Gorton: Right and let me read it.
Section 505 describes “an effluent standard or limitation” as including “a permit or condition there of issued under section 402 of this act which is in effect under this act (including a requirement applicable by reason of section 313 of this Act)”.
And the only answer the Solicitor has to that proposition is that the first five subsections of that subsection are not requirements and that therefore this does not mean anything.
But first five subsections are not included in the parenthetical expression.
It is a known secret or even so much as to argue that point.
Chief Justice Warren E. Burger: Mr. Attorney General can you tell us how many States have founded trustful function without a permit system?
Mr. Slade Gorton: No States, Your Honor.
This is not like the air case.
This is not like the air case—
Chief Justice Warren E. Burger: Unlike the Air case.
Mr. Slade Gorton: No.
This is not that kind; there are 27 States as the Solicitor General says which have qualified to operate their own permit system.
But in the other 23, the administrator continues to operate a permit system.
This is the current number.
Now, the United States claims that because Federal agencies are expressly exempted from State procedures enforcing new source standards by the terms of 306 (c) of the Act and because Federal agencies are expressly exempted from State procedures for inspection monitoring and entry with respect to point sources within the State by the terms of 308 (c) an exemption from the State permit programs authorized by section 402 (b) has got to be implied.
Now there are two reasons why this is not so.
The first is, because each of those exemptions not to mention another in 401 (a) which is irrelevant to this argument and the original house version which was right in section 402 itself and which removed by the conference committee.
Each of these shows graphically that the congress know perfectly well how to exempt Federal agencies from specific water control act programs when it wished to do so.
Not only did it not do so, in either section 402 or 313 it even expunged the partial exemption which originally appeared in section 402 in the House version, and the legislative history, which we shall find noted on page 30 of the California Brief, expressly shows that the conference committee knew exactly what it was doing in taking out that particular exemption.
Chief Justice Warren E. Burger: When you use the term program, what do you appraise in that?
Mr. Slade Gorton: Well, in the case of 306 (c) and 308 (c) these were fragmented and limited programs.
306 (c) applied or section 306 applies only to new source standards, that is a new factory or your new installation.
And section 308 creates a way in which there will be inspection and monitoring a procedural matter.
I think essentially as opposed to substantive requirements.
And this of course is exactly the point.
What the Congress decided was that the State wanted to do a half baked job.
And only control new sources or perhaps only to have an independent inspection system not related to any substantive requirements whatsoever.
Congress was not to let the States do that to Federal agencies and that is why they were exempted.
They wanted to encourage the States to take over the whole program.
This is the point of the entire Act.
So a State can have a program for new sources only.
It can have an inspection program only but without having a full.
402 (b) permit system, but it cannot enforce that against the Federal Government because EPA and that same State will still be operating a permit program under 402 (a) and that Congress did not want this kind of duplicatory system.
But once the State took its responsibilities under 402 (b) then Federal agencies fall within it because under the expressed terms of section 402 (b), we must have elements of a new source program under 306 and an inspection and monitoring system covered by section 308.
And at that point of course the Federal agencies must secure State permits as well as abide by State substantive standards.
And so this Act is completely consistent throughout.
Just as the State cannot require Federal agencies to abide by fragmented States program and to create a dual or duplicatory system while EPA is still issuing permits under section 402 (a), So EPA cannot create a dual or parallel permit program like harping Federal agencies out of the State permit program under 402 (b).
With all of the confusion which is automatically going to attend upon a Federal permit program to enforce State standards.
This is what section 402 (c) says, it said what section 313 says and is what they mean.
And the very case which the Solicitor General is making takes him right out of Court himself along with us.
Chief Justice Warren E. Burger: Thank you Mr. Attorney General.
Rebuttal of Friedman
Mr. Friedman: Mr. Chief Justice and may it please the Court.
First let me just briefly allude to the argument that Mr. Gorton has made with reference to section 505 (f) 6 and what that says that in effect a citizen suit maybe brought against a Federal instrumentality which is alleged to be violating an effluent standard or limitation and then it says that an effluent standing or limitation includes a permit or condition thereof issued under 402 of the Act which is in effect under the Act including a requirement applicable by reason of section 313 of the Act.
We think that the requirement applicable by reason of section 313 of the act refers to is a substantive standard imposed in a Federal permit.
Not in the State permit in a Federal permit that has been issued to a Federal facility.
I would like to also --
Unknown Speaker: Mr. Friedman that depends on that if you answer the case when you say that, that depends on how you read 313 does it not?
And it is never really decided.
Mr. Friedman: Yes Mr. Justice.
But it does come back to that but my point they say that the fact that there is reference to a requirement of 313 in 505 f 6
Justice John Paul Stevens: And is it not requested, what is the word requirement mean in 313?
Mr. Friedman: Yes, it seems to me if you conclude one way or the other it is easy what they say is the fact as a reference to requirement on the 313 necessarily indicates that 313 requirements includes the State permit system.
Justice John Paul Stevens: Oh I see, you are saying, you argue requirement means substantive limitation in 313
Mr. Friedman: In --
Justice John Paul Stevens: It means the same thing in 506?
Mr. Friedman: Well, we say as it means as substantive requirement either in a -- it means a substantive requirement in a Federal permit Mr. Justice.
That is our point that if they are right if it is -- it could mean more of two things.
It could not mean the substantive requirement in a permit because we say the States have no authority to require permits for Federal facilities.
But we do say it means the same substantive requirement which may be included in a Federal permit that has been issued to a Federal Facility.
If I may just refer briefly to one point you made earlier as to whether the permit program under section 402 is a mandatory program.
The environmental protection agency takes the position that it is.
That they have to have a permit program that is the whole scheme of the statute to control point source pollution by a program of permits.
First to be issued by the environmental protection agency and then if a satisfactory State permit program is included by the State.
Now, the suggestion is made of that because the statute requires and terminates the authority of the administrator to issue Federal permits once he approves a State permit program.
If he approves a State permit program that means one of two things, either that is entire authority to issue permits to Federal facilities as terminated or as it has been suggested in the brief that somehow when he gets rid of his authority to issue permits, that means somehow the States get.
Well, it seems to us that if we are correct in our position that there is no authority under this statute for the States to compel Federal instrumentalities to obtain permits, that when the administrator approves a State plan which provides for the State issuance of permits necessarily, he cannot approve the plan insofar as it purports to give the States authority to issue permits for Federal facilities.
Because there is nothing in the statute that permits that and we think inherit in the whole concept is when he approves a plan, all that he can approve and all that he loses authority to issue is with respect to those portions of the State plan that are valid and if the State plan is invalid as he held in his regulation and as he held in these two cases.
If it is invalid because under the statute the State cannot require a Federal instrumentality to obtain a permit, then necessarily his approval of the State plan does not touch upon that issue.
Justice John Paul Stevens: That is your response to the 402 (c) argument?
Mr. Friedman: Yes.
Justice John Paul Stevens: How about more basic 402 argument that State and Federal permits under the statute standard fall together.
Mr. Friedman: We do not think they have to Mr. Justice.
Justice John Paul Stevens: Well, I would like hear why.
Mr. Friedman: Because-
Justice John Paul Stevens: Because the great big part of their argument is so far as I have heard you have not redirected the authority.
Mr. Friedman: Our answer to that is that the authority to issue permits does not stand from 313, it stems from 402.
All that 313 does is State that the Federal facilities must comply with the substantive requirements of State and Federal law.
However those requirements were imposed.
Whether they are imposed under a State program, whether the State has some sort of a regulatory scheme that does not matter as long as the State imposes substantive requirements, 313 requires that the Federal instrumentality is comply.
But there is nothing in 313 that speaks of permits.
The whole argument is whether the word requirements in 313 covers permits.
But 313 does not authorize any issuance of permits.
The permits are issued by the Federal system under -- by the administrator under 402 if the administrator delegates to the States, the authority to issue such permits then they have that authority under 402.
But you look to 402 only to see who can issue permits?
But the authority to issue permits and the requirement that there be compliance with the substantive standards either in the permits or else where is what 317 does.
Unknown Speaker: Perhaps you said Mr. Friedman; would the administrator approve a State plan that did not have a permit system?
Mr. Friedman: He would not have -- no, because under 402 the only State plan is a State plan for a permit.
Now he could have approved.
Unknown Speaker: So that if the State does not have a permit system their plan will be disapproved?
Mr. Friedman: Well, that is right.
The only State because -- and then the Federal permit plan would continue in operation, that is what we have and 23 States have not submitted and do not have any State, any federally delegated, Federally approved permit but that does not mean that the State could not impose other requirements.
But a State might have a permit plan which is very different from the Federal standards which it would apply within the State but nevertheless there would still be the Federal permit plan.
The only way that the State can oust the EPA plan which is in operation is if it submits a plan which EPA approves.
Unknown Speaker: So that if a State submits a plan that has only substantive standards and had no permit system, what happens?
Mr. Friedman: The EPA would have to disapprove that plan.
Unknown Speaker: In its entirety?
Mr. Friedman: In its entirety.
Unknown Speaker: So in that respect, this statute is different from the Federal statute, different from the air legislation --
Mr. Friedman: It is different—
Unknown Speaker: It does not require that State plans have permits.
Mr. Friedman: That is correct.
The statute is different because one of the key elements of this is a permit plan.
Unknown Speaker: Right.
Mr. Friedman: But it seems to us its – there has been a suggestion here that somehow because you have a permit plan generally, that necessarily indicates that Congress intended to impose that same kind of permits issued by the States upon the Federal authorities and the State authority.
It seems to us it is a very different thing I like to conclude on this note.
Between saying that the Federal instrumentalities have to comply with the substantive requirements that the State has imposed which is what Congress has done section 370 and to take the next and to us a very large step of saying and it is the States, it is the States and not the Federal Government that can require the Federal instrumentalities to do that.
We do not think Congress has gone that far in the statute.
Unknown Speaker: Mr. Friedman can I just ask one question, is there anyway for a State to articulate a substantive requirement except through a permit?
Mr. Friedman: Well I think they negotiate, they do it they can announce it for a particular, they can come in and talk and they could say for a particular point, you cannot throw into the water more than ten gallons chlorine a day.
They can come in, they talk to these people, they can work the thing out and then the Federal people would be required to comply with that.
We do not accept this notion that the only way you can have meaningful effluent standards is through a State permit program.