decided: January 26, 1979.
CITIZENS FOR A BETTER ENVIRONMENT, PETITIONER,
ENVIRONMENTAL PROTECTION AGENCY, DOUGLAS COSTLE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, AND GEORGE ALEXANDER, INDIVIDUALLY AND AS REGIONAL ADMINISTRATOR, REGION V, OF THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS
On Petition for Review of a Decision of the Administrator of the Environmental Protection Agency.
Before Swygert and Sprecher, Circuit Judges, and Grant, Senior District Judge.*fn1
Petitioner, Citizens for a Better Environment ("Citizens"),*fn2 challenges the Environmental Protection Agency's ("EPA") approval of a State of Illinois water pollution program developed as part of the National Pollutant Discharge Elimination System ("NPDES"). We conclude that because the EPA failed to establish guidelines by which the adequacy of the Illinois provisions for public participation in the enforcement of the state program could be assessed, the EPA approval of the program failed to comply with the terms of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 Et seq., and must be overturned.
The history and goals of the Federal Water Pollution Control Act and its amendments have been chronicled in numerous judicial opinions. See, e. g., American Frozen Food Inst. v. Train, 176 U.S.App.D.C. 105, 111-122, 539 F.2d 107, 113-24 (1976); California v. EPA, 511 F.2d 963 (9th Cir. 1975). Congress' ultimate objective was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," § 101(a), 33 U.S.C. § 1251(a) (1977), and it established a permit program, the NPDES, to achieve this goal. Under this program, any pollutant discharge into navigable waters without an EPA authorization permit is banned, and the EPA was instructed to make the pollution controls inherent in its permits increasingly stringent over time.
Although the administration and enforcement of the permit program initially was vested entirely in the EPA, Congress intended that much of this authority would devolve to the states. See § 101(b), 33 U.S.C. § 1251(b). The Clean Water Act stipulates that any time after the promulgation of EPA guidelines establishing the minimum elements of state permit programs, a state may submit a description of a proposed program, along with a statement from the state attorney general that state law provides adequate authority to carry out the program, for evaluation by the Administrator of the EPA. If the state program satisfies the statutory requirements of section 402(b), 33 U.S.C. § 1342(b), and the guidelines issued under section 304(i), 33 U.S.C. § 1314(i), the Administrator must approve the program. The state would then assume primary responsibility for the issuance of permits and for the administration and enforcement of the NPDES program within its jurisdiction.
On July 8, 1977 Illinois submitted an application for authority to administer the NPDES program within the state. This proposal was approved by the Administrator of the EPA on October 23, 1977. On January 17, 1978 Citizens filed a petition to review this action pursuant to section 509(b)(1)(D) of the Act. 33 U.S.C. § 1369(b)(1)(D).*fn3 Citizens contends that the Illinois NPDES program should not have been approved because it lacks sufficient provisions for citizen participation in the enforcement of the program.
The EPA contends, on the other hand, that the Administrator has established adequate guidelines for state NPDES programs, See 40 C.F.R. Part 124, that the Illinois program satisfies not only these guidelines but also the statutory requirements of the Act concerning public participation in enforcement, See §§ 304(i), 402(b); 33 U.S.C. §§ 1314(i), 1342(b), and that, therefore, the Administrator's approval of the Illinois program must be upheld.*fn4 The EPA acknowledges that the Administrator has set no guidelines specifically requiring the provision of public participation in state NPDES enforcement, but argues that this is unnecessary and does not preclude approval of the Illinois program. The EPA position is that the provisions in the Act which discuss the EPA guidelines are extremely general and do not specifically require the Administrator to establish guidelines regarding public participation in state NPDES enforcement.*fn5
The EPA is correct that these provisions are extremely general and, standing alone, would not indicate a Congressional mandate with respect to citizen participation in state enforcement proceedings. These provisions, however, must be construed in the context both of the statute read as a whole, See United States v. Alpers, 338 U.S. 680, 70 S. Ct. 352, 94 L. Ed. 457 (1950), and its legislative history. When that is done, it is clear that Congress intended that EPA guidelines would address, and state programs following those guidelines would provide for, citizen participation in state NPDES enforcement.
The argument of the EPA, focusing on the generality of sections 304(i) and 402(b), 33 U.S.C. §§ 1314(i), 1342(b), ignores another provision of the Act. In the "Congressional declaration of goals and policy," at the beginning of the legislation, Congress stated:
(e) Public participation in the development, revision, And enforcement of any regulation, plan, or program Established by the Administrator or Any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes.
s 101(e), 33 U.S.C. § 1251(e) (emphasis added). This section is an express Congressional directive that the Administrator of the EPA devise guidelines for and actively encourage public participation in the enforcement process of state NPDES programs. Citation to the generality of other statutory provisions outlining the Administrator's responsibility to establish guidelines for states and to assess state programs does not dispel this express mandate; instead, these general provisions are informed by the specific duty imposed by section 101(e). 33 U.S.C. § 1251(e).
This conclusion is corroborated by the legislative history underlying the Water Pollution Control Act Amendments of 1972. The report of the House Public Works Committee explained:
(T)he Committee has included provision for public participation in the development, revision and enforcement of any regulation, standard, or effluent limitation established by the Administrator or any State under this Act. Not only is this specifically required in Section 101(a) but the Administration is directed to encourage this participation.
H.R.Rep. No. 911; 92d Cong., 2d Sess., 132 (1972), reprinted in I A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., 819 (1973) ("Legislative History "). Representative Dingell, a sponsor of the Reuss-Dingell amendments which were adopted in substance in the Act, emphasized
I Legislative History at 108. See also S.Rep. No. 414, 92d Cong., 1st Sess., 12 (1971), reprinted in II Legislative History at 1430 U.S.Code Cong. & Admin.News 1972, p. 3668. These uncontradicted statements confirm the plain meaning of section 101(e): the Administrator of the EPA has a duty to establish state program guidelines and evaluate state programs to insure that there is public participation in the enforcement of these programs. See Conf.Rep. No. 1236, 92d Cong.2d Sess., 100 (1972), reprinted in I Legislative History at 283, U.S.Code Cong. & Admin.News 1972, p. 3668.
Given this mandate, the EPA's contention that the decision whether to establish guidelines regarding public participation in state NPDES programs is a matter entirely within the Administrator's unfettered discretion is unfounded.*fn6 We are not faced here with a situation in which an administrator, acting within the scope of his statutory authority and after considering all of the relevant factors, has made a discretionary judgment. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414-17, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). In the instant case, the Administrator of the EPA, by failing to establish guidelines regarding public participation in state NPDES enforcement has ignored a statutory directive.*fn7 And, as the Supreme Court has noted repeatedly, "In order for an agency interpretation to be granted deference, it must be consistent with the congressional purpose. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (94 S. Ct. 334, 38 L. Ed. 2d 287) (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, (89 S. Ct. 1794, 23 L. Ed. 2d 371) (1969)." Morton v. Ruiz, 415 U.S. 199, 237, 94 S. Ct. 1055, 1075, 39 L. Ed. 2d 270 (1974). For these reasons, we hold that the EPA Administrator's approval of the Illinois program, without his prior promulgation of guidelines regarding citizen participation in the state enforcement process, violates the terms of the Clean Water Act and must be overturned. See 5 U.S.C. § 706.
The EPA argues that even if the participation guidelines are found inadequate, the Administrator's approval of the Illinois NPDES program should be upheld because the Illinois program provides for substantial citizen participation in the enforcement process. The Illinois program does permit Illinois citizens to file enforcement actions with the Illinois Pollution Control Board and to intervene, with certain conditional limitations, in state enforcement actions. Ill.Rev.Stat. ch. 1111/2, Title 8, § 1031(b); Illinois Pollution Control Board Procedural Rule 310. And these provisions may provide sufficient citizen participation in the Illinois enforcement process to satisfy the federal statutory mandate.*fn8 We need not resolve this question, however. The statutory structure for the establishment, review, and approval of state NPDES programs requires that guidelines including those concerning public participation in the state enforcement process be established prior to the ratification of a state program.*fn9 § 402(b), 33 U.S.C. § 1342(b). The Administrator's failure to provide these guidelines, in violation of the Act's framework, compels reversal of his approval of the Illinois program irrespective of the terms of the program. 5 U.S.C. § 706. Congress did not intend reviewing courts to make ad hoc determinations about the adequacy of the citizen participation components of state programs without the benefit of regulations duly promulgated by the EPA. The only way to prevent such unguided judicial judgments is to require the EPA to follow the terms of the Clean Water Act by issuing public participation regulations prior to the ratification of a state NPDES program.
Accordingly, we hold that the Administrator's approval of the Illinois NPDES program is invalid and we direct the Administrator to withdraw his previously granted approval of the Illinois program and to take appropriate action in accordance with this opinion.