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NATURAL RESOURCES DEFENSE COUNCIL v. TRAIN

June 5, 1975

NATURAL RESOURCES DEFENSE COUNCIL, INC., ENVIRONMENTAL DEFENSE FUND, INC., Plaintiffs,
v.
RUSSELL E. TRAIN, THE ENVIRONMENTAL PROTECTION AGENCY Defendants and NATIONAL FOREST PRODUCTS ASSOCIATION, Intervenor-Defendant



The opinion of the court was delivered by: SMITH, JR.

 Smith, Jr., U.S. District Judge.

 This case involves questions of statutory interpretation and the consequent validity of certain regulations issued by the Environmental Protection Agency (EPA). Plaintiffs are the Natural Resources Defense Council, Inc. and the Environmental Defense Fund, Inc., two respected environmental litigants. Defendants are the Administrator of EPA and the National Forest Products Association (NFPA), an intervenor representing local organizations and firms engaged in the forest products industry. Jurisdiction is based on 33 U.S.C. § 1365(a), 28 U.S.C. § 1331(a), and 5 U.S.C. §§ 701-06. The matter is before the Court on defendant's Motion to Dismiss or, in the Alternative, to Stay, and plaintiffs' Motion for Summary Judgment.

 I

 Under the Federal Water Pollution Control Act Amendments of 1972 (FWPCAA or Act), an explicit national goal is the restoration and maintenance of waters so that by 1983 they will be fit for human recreation and wildlife propagation. 33 U.S.C. § 1251(a)(2) (Supp. III, 1973). To assist in achieving this goal, one subchapter of the Act provides for the construction of sewage treatment works and for the development and implementation of areawide waste treatment management plans. Id. § 1281(a); see also id. § 1251(a)(5). The States retain primary responsibility under the Act for abating and preventing water pollution, with the Federal role being limited to coordination and funding. Id. § 1251(b).

 Section 208, 33 U.S.C. § 1288, is the key provision in the Act governing areawide waste treatment management planning. Under subsection (a)(1) of that section, *fn1" EPA is to issue guidelines "for the identification of those areas which, as a result of urban-industrial concentrations or other factors, have substantial water quality control problems." Id. § 1288(a)(1); see 40 C.F.R. § 126.10 (1974). The Governor of a State must then identify each area which has substantial water quality control problems, and designate a representative organization including local elected officials to develop a plan for the area. 33 U.S.C. § 1288(a)(2). Special provision is made for interstate problem areas and planning organizations. Id. § 1288(a)(3). If the Governor does not designate a particular area -- unless he expressly "de-designates," that is, excludes the area -- local authorities may designate additional problem areas and planning organizations. Id. § 1288(a)(4). To this point there are thus three possible types of areas and organizations -- Governor-designated, interstate, and local-designated.

 The final provision for planning under Section 208(a) is the subject of this lawsuit. What is not covered in subsections (a)(2)-(4) supra is treated by subsection (a)(6), which provides: "The State shall act as a planning agency for all portions of such State which are not designated under paragraphs (2), (3), or (4) of this subsection." Id. § 1288(a) (6). The dispute among the parties revolves around the question of what subsection (a)(6) requires of a State in its planning efforts on behalf of the non-previously-designated portions of the State.

 Plaintiffs take the position that the State under subsection (a)(6) must do exactly what the planning organizations designated under subsections (a) (2)-(4) are required to do; that is, develop a plan under subsection (b)(2), 33 U.S.C. § 1288(b)(2), to control point and non-point sources of pollution. Plaintiffs claim that this State-prepared plan must be ready by mid-July, 1976 so that phase II (implementation of the plan) may proceed on schedule and attain the 1983 goal of swimmable, fishable waters. Plaintiffs accordingly oppose as both inadequate and illegal the regulations that EPA has issued to implement subsection (a) (6), see 40 C.F.R. §§ 126.2(d), 126.20, and seek declaratory and injunctive relief against these regulations. *fn2"

 EPA has come to agree with plaintiffs that subsection (a)(6) requires the State, acting in the same capacity as designated organizations, to apply all of the subsection (b) (2) criteria in non-designated portions of the State. However, there are several qualifications to EPA's agreement with plaintiffs. First, EPA claims that only its subsection (a)(1) guidelines supra are mandated by Section 208, and that its discretionary subsection (a)(6) regulations are valid insofar as they specify merely partial waste treatment management obligations imposed upon a State. See 40 C.F.R. § 126.20(a), supra note 2. Second, EPA declares that it has already advised the States by letter of their comprehensive subsection (a)(6) planning responsibilities, and notes in support of its request for a stay of the present proceedings that clarifying regulations are in the process of being developed. Lastly, EPA asserts that planning under subsection (a)(6) need not meet the same strict time limitations applicable to planning for substantial water quality problems under subsections (a)(2) - (4).

 Defendant NFPA has a diametrically opposed view of subsection (a)(6) from that of NRDC and EPA. NFPA claims that there is no duty at all imposed upon a State by the statute to engage in extensive areawide waste treatment management planning. Since subsection (a)(6) allegedly addresses " non-problem" portions of a State, and since the key terms of Section 208 -- "area" or "areawide," "designate," and "organization" -- are lacking in subsection (a)(6), NFPA argues that a State need only engage in general, discretionary planning, like that described in Section 303(e) of the Act. 33 U.S.C. § 1313(e). NFPA also points out that under plaintiffs' interpretation of subsection (a)(6), some apparent inconsistencies within the statute would result, *fn3" and wasteful, duplicative planning would be required where water pollution problems might not even exist. Finally, NFPA relies upon the Act's legislative history, contending that the Senate version of subsection (a)(6), which clearly compelled Statewide planning for non-designated portions, was significantly modified by the Conference Committee. *fn4"

 II

 Subsection (a)(6) on its face does not definitively reveal which of the competing interpretations should prevail, that is, exactly what type of planning for non-designated portions a State should engage in. Under such circumstances the particular statute should be read in the context of the entire Act so that its purpose together with the intent of the whole Act may be effectuated. United States v. Menasche, 348 U.S. 528, 538-39, 99 L. Ed. 615, 75 S. Ct. 513 (1955).

 As noted, Section 208 is a critical provision in a broad, far-reaching Act. See generally United States v. Ashland Oil & Transportation Co., 504 F.2d 1317, 1320-25 (6th Cir. 1974). It contains unique authority to control water pollution from point sources (e.g., factory or pipe discharge; see 33 U.S.C. § 1362(14)) and from nonpoint sources (e.g., mining or agricultural runoff). Its implementation features distinguish it from Section 303(e) of the Act, which emphasizes ongoing State planning and limits State efforts to stationary sources of pollution. See 40 C.F.R. pts 130-131. The Section is also intended to coordinate and integrate other planning, construction, and discharge permit provisions of the Act. 33 U.S.C. §§ 1288(d), (e); 1313(e)(3)(B). Section 208 charts a course not only for the cleaning up of polluted waters but also for the prevention of future pollution by identifying problem sources, regulating construction of certain industrial facilities, and developing processes to control runoff sources of pollution. While Section 208 focuses on "urban-industrial" areas with substantial water quality control difficulties, it also directs attention to other geographical locations with water pollution problems, such as forests, mining areas, farms, and salt water inlets. As a "bottom line" for the Section 208 waste treatment management activities, the Act prescribes a 1983 goal of clean waterways. The period between October 18, 1972 and July, 1976 is mainly a planning and development stage. The remaining seven years are for implementing plans and eliminating the more difficult and persistent sources of water pollution. See EPA, Water Quality Strategy Paper 10-11 (1974).

 Subsection (a)(6) is the residual clause in the areawide waste treatment management planning provision. As such it deals with the non-designated or "leftover" portions of the State not addressed by the Governor or by local officials in subsections (a)(2)-(4). The plain implication is that subsection (a)(6) empowers the State to achieve what the other planning organizations under the previous subsections are directed to achieve. Like the other planning organizations, the State under subsection (a)(6) is to engage in subsection (b)(2) (A) - (K) planning for the area within its authority; that is, for "all portions of such State which are not [otherwise] designated" by the Governor or by local officials. It would be illogical for Congress to set forth a detailed scheme for State, interstate, and local water pollution planning -- and then to lump ...


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