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Zabel v. Tabb

JOHN R. BROWN, Chief Judge: It is the destiny of the Fifth Circuit to be in the middle of great, oftentimes explosive issues of spectacular public importance. So it is here as we enter in depth the contemporary interest in the preservation of our environment. By an injunction requiring the issuance of a permit to fill in eleven acres of tidelands in the beautiful Boca Ciega Bay in the St. Petersburg-Tampa, Florida area for use as a commercial mobile trailer park, the District Judge held that the Secretary of the Army and his functionary, the Chief of Engineers, had no power to consider anything except interference with navigation. There being no such obstruction to navigation, they were ordered to issue a permit even though the permittees acknowledge that “there was evidence before the Corps of Engineers sufficient to justify an administrative agency finding that [the] fill would do damage to the ecology or marine life on the bottom.” We hold that nothing in the statutory structure compels the Secretary to close his eyes to all that others see or think they see. The establishment was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten, or fifteen years ago before man’s explosive increase made all, including Congress, aware of civilization’s potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent-spring-like disturbance of nature’s economy. We reverse. I Genesis: The Beginning In setting the stage we draw freely on the Government’s brief. This suit was instituted by Landholders, Zabel and Russell, on May 10, 1967, to compel the Secretary of the Army to issue a permit to dredge and fill in the navigable waters of Boca Ciega Bay, in Pinellas County near St. Petersburg, Florida. On August 15, 1967, the United States and its officers, Defendants-Appellants, filed a motion to dismiss the suit for lack of jurisdiction which was denied. The United States and other defendants then answered the complaint alleging lack of jurisdiction and that the Court lacks power to compel a discretionary act by the Secretary of the Army. The United States and other defendants moved for summary judgment. Landholders, Zabel and Russell, also moved for summary judgment. After a hearing, the District Court, on February 17, 1969, granted summary judgment for Landholders and directed the Secretary of the Army to issue the permit. It granted a stay of execution of the judgment until this appeal could be heard and decided. We invert the summary judgments, reversing Appellees and rendering judgment for the United States. Landholders own land riparian to Boca Ciega Bay, and adjacent land underlying the Bay. It is navigable water of the United States on the Gulf side of Pinellas Peninsula, its length being traversed by the Intraeoastal Waterway, which enters Tampa Bay from Roca Ciega Bay and is thus an arm of the Gulf of Mexico. The Zabel and Russell property is located about one mile from the Intraeoastal Waterway. Landholders desire to dredge and fill on their property in the Bay for a trailer park, with a bridge or culvert to their adjoining upland. To this purpose they first applied to the state and local authorities for permission to perform the work and obtained the consent or approval of all such agencies having jurisdiction to prohibit the work, namely Pinellas County Water and Navigation Control Authority (which originally rejected permission, but ultimately issued a permit pursuant to state Court order), Trustees of the Internal Improvement Fund of the State of Florida, Central and South Florida Flood Control District, and Board of Pilot Commissioners for the Port of St. Petersburg. Landholders then applied to the Corps of Engineers for a federal permit to perform the dredging and filling. The Pinellas County Water and Navigation Control Authority (which originally rejected permission, but ultimately issued a permit pursuant to state Court order) continued to oppose the work as did the Board of County Commissioners of Pinel-las County, who also comprise the Pinel-las County Water and Navigation Control Authority, the County Health Board of Pinellas County, the Florida Board of Conservation, and about 700 individuals who filed protests. The United States Fish and Wildlife Service, Department of the Interior, also opposed the dredging and filling because it “would have a distinctly harmful effect on the fish and wildlife resources of Boca Ciega Bay.” A public hearing was held in St. Petersburg in November, 1966, and on December 30,1966, the District Engineer at Jacksonville, Florida, Colonel Tabb, recommended to his superiors that the application be denied. He said that “The proposed work would have no material adverse effect on navigation” but that: “Careful consideration has been given to the general public interest in this case. The virtually unanimous opposition to the proposed work as expressed in the protests which were received and as exhaustively presented at the public hearing have convinced me that approval of the application would not be in the public interest. The continued opposition of the U.S. Fish '& Wildlife Service despite efforts on the part of the applicants to reduce the extent of damage leads me to the conclusion that approval of the work would not be consistent with the intent of Congress as expressed in the Fish & Wildlife Coordination Act, as amended, 12 August 1958. Further, the opposition of the State of Florida and of county authorities as described in paragraph 5 above gives additional support to my conclusion that the work should not be authorized.” The Division Engineer, South Atlantic Division, Atlanta, Georgia, concurred in that recommendation stating: “In view of the wide spread opposition to the proposed work, it is apparent that approval of the application would not be in the public interest.” The Chief of Engineers concurred for the same reasons. Finally, the Secretary of the Army denied the application on February 28, 1967, because issuance of the requested permit: 1. Would result in a distinctly harmful effect on the fish and wildlife resources in Boca Ciega Bay, 2. Would be inconsistent with the purposes of the Fish and Wildlife Coordination Act of 1958, as amended (16 U.S.C. 662), 3. Is opposed by the Florida Board of Conservation on behalf of the State of Florida, and by the County Health Board of Pinellas County and the Board of County Commissioners of Pinellas County, and 4. Would be contrary to the public interest. Landholders then instituted this suit to review the Secretary’s determination and for an order compelling him to issue a permit. They urged that the proposed work would not hinder navigation and that the Secretary had no authority to refuse the permit on other grounds. They acknowledged that “there was evidence before the Corps of Engineers sufficient to justify an administrative agency finding that our fill would do damage to the ecology or marine life on the bottom.” The Government urged lack of jurisdiction and supported the denial of the permit on authority of § 10 of the Bivers and Harbors Act of March 3, 1899, 30 Stat. 1121, 1151, 33 U.S.C.A. § 403, giving the Secretary discretion to issue permits and on the Fish and Wildlife Coordination Act of March 10, 1934, 48 Stat. 401, as amended, 16 U.S.C.A. §§ 661 and 662(a), requiring the Secretary to consult with the Fish and Wildlife Service and state conservation agencies before issuing a permit to dredge and fill. The District Court held that it had jurisdiction, that the Fish and Wildlife Coordination Act was not authority for .denying the permit, and that: “The taking, control or limitation in the use of private property interests by an exercise of the police power of the government or the public interest or general welfare should be authorized by legislation which clearly outlines procedure which comports to all constitutional standards. This is not the case here. As this opinion is being prepared the Congress is in session. Advocates of conservation are both able and effective. The way is open to obtain a remedy for future situations like this one if one is needed and can be legally granted by the Congress.” The Court granted summary judgment for Landholders and directed the Secretary of the Army to issue the permit. This appeal followed. The question presented to us is whether the Secretary of the Army can refuse to authorize a dredge and fill project in navigable waters for factually substantial ecological reasons even though the project would not interfere with navigation, flood control, or the production of power. To answer this question in the affirmative, we must answer two intermediate questions affirmatively. (1) Does Congress for ecological reasons have the power to prohibit a project on private riparian submerged land in navigable waters? (2) If it does, has Congress committed the power to prohibit to the Secretary of the Army? II Constitutional Power The starting point here is the Commerce Clause and its expansive reach. The test for determining whether Congress has the power to protect wildlife in navigable waters and thereby to regulate the use of private property for this reason is whether there is a basis for the Congressional judgment that the activity regulated has a substantial effect on interstate commerce. Wickard v. Filburn, 1942, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122, 135. That this activity meets this test is hardly questioned. In this time of awakening to the reality that we cannot continue to despoil our environment and yet exist, the nation knows, if Courts do not, that the destruction of fish and wildlife in our estuarine waters does have a substantial, and in some areas a devastating, effect on interstate commerce. Landholders do not contend otherwise. Nor is it challenged that dredge and fill projects are activities which may tend to destroy the ecological balance and thereby affect commerce substantially. Because of these potential effects Congress has the power to regulate such projects. Ill Relinquishment of the Power Landholders do not challenge the existence of power. They argue that Congress in the historic compromise over the oil rich tidelands controversy abandoned its power over other natural resources by the relinquishment to the states in the Submerged Lands Act. By it they urge the Government stripped itself of the power to regulate tidelands property except for purposes relating to (i) navigation, (ii) flood control, and (iii) hydroelectric power. This rests on the expressed Congressional reservation of control for these three purposes over the submerged lands, title to and power over which Congress relinquished to the states. The argument assumes that when Congress relinquished title to the land and the right and power to manage and use the land, it relinquished its power under the Commerce Clause except in particulars (i), (ii), and (iii). It also assumes that reservation of these three enumerated aspects of the commerce power implied that Congress gave up its plenary power over the myriad other aspects of commerce. See, e. g., Heart of Atlanta Motel, Inc. v. United States, 1964, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed. 2d 258; Katzenbach v. McClung, 1964, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290. A nice argument can be contrived that the net effect of these provisions was to vest in the adjacent states [1] title in these tidelands and their natural resources and [2] [a] the exclusive power to use, exploit and manage these lands [b] only subject to the reserved power of the Federal Government regarding (i) navigation, (ii) flood control, and (iii) production of power. Certainly, this brief synopsis of (1) and (2) (a) is the literal import of § 1311(a) (1) (2). Likewise, the reservation summarized as (2) (b) is literally specified in § 1311 (d). On this approach, the Federal Government turned over to adjacent states the full management and use of the tidelands reserving only those limited powers over commerce comprehended within the three particulars. But this argument ignores both language found elsewhere and the legislative purpose of the Act. The controversy, often pressed with emotional overtones, was over oil and gas and whether the states were to reap the economic benefits of development royalties and to regulate the exploration and development or whether these benefits and these controls were to be exercised by the Federal Government as an adjunct of then newly declared “paramount rights”. United States v. California, 1947, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382, 383. The Act and this relinquishment reflect the legislative compromise found in the combination of the Submerged Lands Act and the Outer Continental Shelf Act. The adjacent states were to be the “owner” of the resources and reap exclusively the economic benefits of resources in the tidelands and have full control over management and exploitation. The Federal Government, on the other hand, was given exclusive ownership and control vis-a-vis the states in the Outer Continental Shelf. Although it was easy to make this division, the nature of the physical area of the controversy presented immediate operational problems growing out of the water. The Federal Government’s traditional concern with navigation, especially on the high seas, its later but then quite extensive concern in flood control, hydroelectric power production, and the frequent combination of both under grandiose projects of a Corps of Engineers, raised specific problems calling for accommodation of the (i) sweeping Federal divesture and (ii) the continued fulfillment of the Federal government’s role in these activities. Thus, for example, the states’ exclusive right to grant exploration privileges, determine the location and spacing of development wells or drilling platforms posed prospects of maritime hazards. Without imposing its own notions of how development ought to be conducted, restricted, expanded, or controlled, the Federal Government had to have, and reserved expressly this power even to prohibit a drilling rig platform at a particular location. These specific reservations eliminated these frequent and extensive activities as a source of further state versus national controversy. Whatever remaining doubt there might be on this reading was expressly eliminated by language in § 1314(a) which specifically retains in the Federal Government “all of its * * * rights in and powers of regulation and control of said lands and * * * waters for the constitutional purposes of commerce * * * ” 43 U.S.C.A. § 1314(a). This section, which encompasses and pervades the entire Act, makes it clear that Congress intended to and did retain all its constitutional powers over commerce and did not relinquish certain portions of the power by specifically reserving others. All of this is additionally borne out by the legislative history and United States v. Rands, 1967, 389 U.S. 121, 127, 88 S.Ct. 265, 269, 19 L.Ed.2d 329, 335: “Finally, respondents urge that the Government’s position subverts the policy of the Submerged Lands Act, which confirmed and vested in the States title to the lands beneath navigable waters within their boundaries and to natural resources within such lands and waters, together with the right and power to manage, develop, and use such lands and natural resources. However, reliance on that Act is misplaced, for it expressly recognized that the United States retained all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership * * *. Nothing in the Act was to be construed as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power. The Act left congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.” Congress clearly has the power under the Commerce Clause to regulate the use of Landholders’ submerged riparian property for conservation purposes and has not given up this power in the Submerged Lands Act. IV Prohibiting Obstructions to Navigation The action of the Chief of Engineers and the Secretary of the Army under attack rests immediately on the Rivers and Harbors Act, 33 U.S.C.A. § 403, which declares that “the creation of any obstruction * * * to the navigable capacity of any of the waters of the United States is prohibited.” The Act covers both building of structures and the excavating and filling in navigable waters. It is structured as a flat prohibition unless — the unless being the issuance of approval by the Secretary after recommendation of the Chief of Engineers. The Act itself does not put any restrictions on denial of a permit or the reasons why the Secretary may refuse to grant a permit to one seeking to build structures on or dredge and fill his own property. Although the Act has always been read as tempering the outright prohibition by the rule of reason against arbitrary action, the Act does flatly forbid the obstruction. The administrator may grant permission on conditions and conversely deny permission when the situation does not allow for those conditions. But the statute does not prescribe either generally or specifically what those conditions may be. The question for us is whether under the Act the Secretary may include conservation considerations as conditions to be met to make the proposed project acceptable. Until now there has been no absolute answer to this question. In fact, in most cases under the Rivers and Harbors Act the Courts have been faced only with navigation problems.” See, e. g., Sanitary Dist. v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352; Wisconsin v. Illinois, 1929, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426; United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903. One very big exception is United States ex rel. Greathouse v. Dern, 1933, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250. There petitioners sought a writ of mandamus to compel the Secretary of War and the Chief of Engineers to issue a permit to build a wharf in navigable waters. The Secretary, specifically finding that it would not interfere with navigation, denied the permit. The Supreme Court held that mandamus would not issue because the allowance of mandamus “is controlled by equitable principles * * * and it may be refused for reasons comparable to those which would lead a court of equity, in the exercise of a sound discretion, to withhold its protection of an undoubted legal right.” The reason was that the United States had plans to condemn petitioners’ land for use as a means of access to a proposed parkway. Allowing a wharf to be built would increase the expense to the government since it would increase the market value of the land and would require the government to pay for tearing down the wharf. The importance of Grewthouse is that it recognized that the Corps of Engineers does not have to wear navigational blinders when it considers a permit request. That there must be a reason does not mean that the reason has to be navigability. Another case holds that the Corps has a duty to consider factors other than navigational. Citizens Committee for the Hudson Valley v. Volpe, S.D.N.Y., 1969, 302 F.Supp. 1083, aff'd., 2 Cir., 1970 425 F.2d 97 [No. 428-33, April 16, 1970]. There the District Court held that the Corps must consider a fill project in the context of the entire expressway project of which it was a part rather than just considering the fill and its effect on navigation. The reasoning was that the approval of the Secretary of Transportation was necessary before a proposed causeway could be constructed. The causeway, along with the fill, was an integral part of the expressway project. However, if the Corps and Secretary of the Army approved the fill and the State completed it, the Secretary of Transportation, considering the enormous expense of the fill, would have no choice, other than approving the causeway. The Army thus had exceeded its authority in approving the fill on only navigational considerations since approval of the fill was effectually approval of the causeway. But such circuity is not necessary. Governmental agencies in executing a particular statutory responsibility ordinarily are required to take heed of, sometimes effectuate and other times not thwart other valid statutory governmental policies. And here the government-wide policy of environmental conservation is spectacularly revealed in at least two statutes, The Fish and Wildlife Coordination Act and the National Environmental Policy Act of 1969. The Fish and Wildlife Coordination Act clearly requires the dredging and filling agency (under a governmental permit), whether public or private, to consult with the Fish and Wildlife Service, with a view of conservation of wildlife resources. If there be any question as to whether the statute directs the licensing agency (the Corps) to so consult it can quickly be dispelled. Common sense and reason dictate that it would be incongruous for Congress, in light of the fact that it intends conservation to be considered in private dredge and fill operations (as evidenced by the clear wording of the statute), not to direct the only federal agency concerned with licensing such projects both to consult and to take such factors into account. The second proof that the Secretary is directed and authorized by the Fish and Wildlife Coordination Act to consider conservation is found in the legislative history. The Senate Report on the Fish and Wildlife Coordination Act states: “Finally, the nursery and feeding grounds of valuable crustaceans, such as shrimp, as well as the young of valuable marine fishes, may be affected by dredging, filling, and diking operations often carried out to improve navigation and provide new industrial or residential land. ****** Existing law has questionable application to projects of the Corps of Engineers for the dredging of bays and estuaries for navigation and filling purposes. More seriously, existing law has no application whatsoever to the dredging and filling of bays and estuaries by private interests or other non-Federal entities in navigable waters under permit from the. Corps of Engineers. This is a particularly serious deficiency from the standpoint of commercial fishing interests. The dredging of these bays and estuaries along the coastlines to aid navigation and also to provide land fills for real estate and similar developments, both by Federal agencies or other agencies under permit from the Corps of Engineers, has increased tremendously in the last 5 years. Obviously, dredging activity of this sort has a profound disturbing effect on aquatic life, including shrimp and other species of tremendous significance to the commerical fishing industry. The bays, estuaries, and related marsh areas are highly important as spawning and nursery grounds for many commerical species of fish and shellfish.” S.Rep. No. 1981, 85th Cong.2d Sess. (July 28, 1958). 1958 U.S.Code Cong. & Admin.News, pp. 3446, 3448, 3450. This Report clearly shows that Congress intended the Chief of Engineers and Secretary of the Army to consult with the Fish and Wildlife Service before issuing a permit for a private dredge and fill operation. This interpretation was judicially ac-ceptéd in Udall v. FPC: “Section 2(a), 16 USC § 662(a) provides that an agency evaluating a license under which ‘the waters of any stream or other body of water are proposed * * * to be impounded first shall consult with the United States Fish and Wildlife Service, Department of the Interior * * * with a view to the conservation of wildlife resources by preventing loss of and damage to such resources * * Certainly the wildlife conservation aspect of the project must be explored and evaluated.” 1967, 387 U.S. 428, 443-444, 87 S.Ct. 1712, 1720, 18 L.Ed.2d 869, 879. The meaning and application of the Act are also reflected by the actions of the Executive that show the statute authorizes and directs the Secretary to consult with the Fish and Wildlife Service in deciding whether to grant a dredge and fill permit. In a Memorandum of Understanding between the Secretary of the Army and the Secretary of the Interior, it is provided that, upon receipt of an application for a permit to dredge or fill in navigable waters, the District Engineer of the Corps of Engineers concerned is required to send notices to all interested parties, including the appropriate Regional Directors of the Federal Water Pollution Control Administration, the Fish and Wildlife Service, the National Park Service and the appropriate state conservation, resources, and water pollution agencies. The District Engineer is given the initial responsibility of evaluating all relevant factors in reaching a decision as to whether the particular permit involved should be granted or denied. The Memorandum also provides that in case of conflicting views the ultimate decision shall be made by the Secretary of the Army after consultation with the Secretary of the Interior. This Executive action has almost a virtual legislative imprimatur from the November 1967 Report of the House Committee on Merchant Marine and Fisheries, in reporting favorably on a bill to protect estuarine areas which was later enacted into law. As a result of the effective operation of the Interdepartmental Memorandum of Understanding, the Interior Department and the Committee concluded that it was not necessary to provide for dual permits from Interior and Army. The intent of the three branches has been unequivocally expressed: The Secretary must weigh the effect a dredge and fill project will have on conservation before he issues a permit lifting the Congressional ban.. The parallel of momentum as the three branches shape a national policy gets added impetus from the National Environmental Policy Act of 1969, Public Law 91-190, 42 U.S.C.A. §§ 4331-4347. This Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man’s environment. Although this Congressional command was not in existence at the time the permit in question was denied, the correctness of that decision must be determined by the applicable standards of today. The national policy is set forth in plain terms in § 101 and the disclaimer of § 104(3) neither affects it nor the duty of all departments to consider, consult, collaborate and conclude. For we hold that while it is still the action of the Secretary of the Army on the recommendation of the Chief of Engineers, the Army must consult with, consider and receive, and then evaluate the recommendations of all of these other agencies articulately on all these environmental factors. In rejecting a permit on non-navigational grounds, the Secretary of the Army does not abdicate his sole ultimate responsibility and authority. Rather in weighing the application, the Secretary of the Army is acting under a Congressional mandate to collaborate and consider all of these factors. To judge the ebb and flow of the national tide, he can look to the Report of the House Committee on Government Operations. Although this perhaps lacks traditional standing of legislative history, it certainly has relevance somewhat comparable to an Executive Commission Report. On March 17, 1970, it approved and adopted a Report, based on a study made by its Conservation and Natural Resources Subcommittee, entitled Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution. (H.Rep. No. 91-917, 91st Cong. 2d Sess. (1970)) The first section stifles any doubt as to how this part of Congress construes the Corps’ duty under the Rivers and Harbors Act. The section traces the historical interpretation of the Corps’ power under the Rivers and Harbors Act. It commends the Corps for recognizing ecological considerations under the Act to protect against unnecessary fills and cites the instant case. But following the temper of the times, the report by bold face black type cautions against any easy overconfidence and charges the Corps with ever-increasing vigilance. When the House Report and the National Environmental Policy Act of 1969 are considered together with the Fish and Wildlife Coordination Act and its interpretations, there is no doubt that the Secretary can refuse on conservation grounds to grant a permit under the Rivers and Harbors Act. V Due Process Landholders next contend that the denial of a permit without a hearing before the Fish and Wildlife Service is a deprivation of property without due process of law. Administrative law requires that before an agency can regulate a party, it must allow that party to be heard. Here, Landholders were given such a hearing before the Corps of Engineers, the body empowered to grant or deny a permit. They were not entitled to a hearing before the Fish and Wildlife Service because it is not “the one who decides.” Morgan v. United States, 1935, 289 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288, 1295. They were allowed to rebut the findings and conclusions of the Fish and Wildlife Service before the deciding body and thus were not denied due process for lack of a hearing. VI Taking Without Compensation Landholders’ last contention is that their private submerged property was taken for public use without just compensation. They proceed this way: (i) the denial of a permit constitutes a taking since this is the only use to which the property could be put; (ii) the public use is as a breeding ground for wildlife; and (iii) for that use just compensation is due. Our discussion of this contention begins and ends with the idea that there is no taking. The waters and underlying land are subject to the paramount servitude in the Federal government which the Submerged Lands Act expressly reserved as an incident of power incident to the Commerce Clause. (See Part II supra). VII Conclusion Landholders’ contentions fail on all grounds. The case is reversed and since there are no questions remaining to be resolved by the District Court, judgment is rendered for the Government and the associated agent-defendants. Reversed and rendered. . The Authority’s denial of a permit was affirmed by the Florida District Court of Appeal in Zabel v. Pinellas County Water & Navigation Control Authority, Fla.Ct. App., 1963, 154 So.2d 181. The Supreme Court of Florida reversed that decision because Zabel had been required by the Authority to show that there would be no adverse effect on the public interest, rather than the burden of adverse effect being placed on the Authority. It held that on this record there was insufficient showing of adverse effect, so that denial of a permit would be a taking of property without compensation: It said (p. 381) : “In view of the foregoing, the decision appealed from is quashed and the cause remanded for disposition consistent herewith.” Zabel v. Pinellas County Water & Nav. Con. Auth., Fla., 1965, 171 So.2d 376. Against the Authority’s contention that this ruling intended further proceedings on the application, to accord it a chance to establish adverse effect, the District Court of Appeal directed issuance of a permit. Pinellas County Water & Nav. Con. Auth. v. Zabel, Fla.Ct.App., 1965, 179 So.2d 370. . There was evidence both that it would aid navigation and that it would obstruct navigation. There was similar evidence on pollution. . “The Congress shall have power to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes.” U.S.Const. Art. I, § 8, Cl. 3. . Landholders cite Weber v. State Harbor Comm’rs, 1873, 85 U.S. (18 Wall.) 65, 21 L.Ed. 798 and United States v. River Rouge Improvement Co., 1926, 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 as limiting the power of the Federal Government over navigable waters to control for navigational purposes. Not surprisingly, the narrow view these eases take of the Commerce Clause is pre-United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609. . Complete documentation of the concern over environmental problems would surely be voluminous, but it is indirectly evidenced by the amount of very recent legal activity. See National Environmental Policy Act of 1969. Pub.Law 91-190 (Jan. 1, 1970), infra note 24; Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.Rep. 91-917, 91st Cong., 2d Sess, March 18, 1970, infra text at note 26; Executive Order 11507, Feb. 4, 1970, 38 L.W. 2436; United States v. Ray, 5 Cir., 1970, 423 F.2d 16 [Jan. 22, 1970] ; E. B. Elliott Advertising Co. v. Hill, 5 Cir., 1970, 425 F.2d 1141 [April 3, 1970] ; Citizens Committee for the Hudson Valley v. Volpe, S.D.N.Y., 1969, 302 F.Supp. 1083, aff’d, 2 Cir., 1970, 425 F.2d 97 [No. 428-33, April 16, 1970] ; National Advertising Co. v. Monterey, Calif., 1970, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33 [Jan. 30, 1970] ; MacGibbon v. Duxbury Board of Appeals, Mass., 1970, 255 N.E.2d 347 [Jan. 29, 1970] ; California v. SS Bournemouth, C.D.Cal., 1969, 307 F.Supp. 922; Creation of ABA Special Committee on Environmental Quality, 15 Am.Bar News No. 3, March 1970. . 43 U.S.C.A. § 1301 et seq. See Continental Oil Co. v. London Steamship Owners’ Mut. Ins. Ass’n., 5 Cir., 1969, 417 F. 2d 1030, A.M.C., cert. denied, 1970, 397 U.S. 911, 90 S.Ct. 911, 25 L.Ed.2d 92, A.M.C.; Atlantis Development Corp. v. United States, 5 Cir., 1967, 379 F.2d 818. . The relinquishing provision states, 43 U.S.C.A. § 1311(a) and (b) : “(a) It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof; (b) (1) The United States releases and relinquishes unto said States and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources * * The reservation provision referred to states, 43 U.S.C.A. § 1311(d) : “(d) Nothing in this chapter shall affect the use, development, improvement, or control by or under the constitutional authority of the United States of said lands and waters for the purposes of navigation or flood control of the production of power, or be construed as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power * * The term “natural resources” is broadly defined to include both the animate and inanimate: “The term ‘natural resources’ includes, without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life but does not include water power, or the use of water for the production of power;” 43 U.S.C.A. § 1301(e). . 43 U.S.C.A. § 1331 et seq. . “The United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 1311 of this title.” 43 U.S.O.A. § 1314(a). . It is argued that the retention in § 1314 (a) is limited to the three aspects enumerated in § 1311(d) by the words “[the commerce power] shall be paramount to, but shall not be deemed to include [relinquished rights].” But we have already shown that the enumeration of these three, which are explicitly stated because they are particularly relevant to the regulation of land lying under navigable waters, does not imply that Congressional power over other types of commerce was among the rights relinquished. Because Congress did not give up any of its power over all of interstate commerce in § 1311 (see note 7, supra), they are not “[relinquished rights]” and the limitation portion of § 1314(a) is inapplicable. To hold otherwise would render the reservation of constitutional commerce power in § 1314(a) a useless reiteration of the impliedly retained powers in § 1311(d). But to hold that it is an explicit reservation of all commerce powers gives the section meaning. The section may be unneeded and overly cautious in that it reserves a constitutional power that has been relinquished, but it should not be read in such a way as to render it otherwise useless. . “This title does not affect any of the Federal constitutional powers of regulation and control over these areas within State boundaries. Such powers, as those over navigation, commerce, national defense, international affairs, flood control, and power production where the United States owns or acquires the water power.” H.R.Rep.No. 215, 83d Cong., 1st Sess. (March 27, 1953), 1953 U.S.Code Cong. & Admin.News, pp. 1385, 1389. . “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited ; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work lias been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” 33 U.S.C.A. § 403. . This Court recently held that under this same section together with the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1333(f), a permit must be obtained before a project can be begun on the Outer Continental Shelf. United States v. Ray, supra, note 5, which followed the remand and trial on the merits in Atlantis Development Corp. v. United States, 5 Cir., 1967, 379 E.2d 818. . Landholders cite authority holding that the Secretary is empowered to deny a permit only for navigational reasons, United States Attorney General’s opinion of February 13, 1925, 30 U.S.Atty.Gen.Ops. 410 at 412, 415, 416; Miami Beach Jockey Club, Inc. v. Dern, 1936, 66 App.D.C. 254, 86 F.2d 135, 136 (on petition for rehearing). These determinations, by no means inexorable under the wording of the statute, see Greathouse v. Dern, infra, predate the changes wrought by the Fish and Wildlife Coordination Act, infra. And they are out of step with the sweeping declaration of power over commerce in United States v. Appalachian Electric Power Co., 1940, 311 U.S. 377, 423-427, 61 S.Ct. 291, 307, 85 L.Ed. 243, 261-263: “The state and respondent, alike, however, hold the waters and the lands under them subject to the power of Congress to control the waters for the purpose of commerce. The power flows from the grant to regulate, i. e., to ‘prescribe the rule by which commerce is to be governed.’ This includes the protection of navigable waters in capacity as well as use. This power of Congress to regulate commerce is so unfettered that its judgment as to whether a structure is or is not a hindrance is conclusive. Its determination is legislative in character. The Federal Government has domination over the water power inherent in the flowing stream. It is liable to no one for its use or nonuse. The flow of a navigable stream is in no sense private property; ‘that the running water in a great navigable stream is capable of private ownership is inconceivable.’ Exclusion of riparian owners from its benefits without compensation is entirely within the Government’s discretion.” * * * * * * “In our view, it cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control. * * * That authority is as broad as the needs of commerce. * * * The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. The license conditions to which objection is made have an obvious relationship to the exercise of the commerce power. Even if there were no such relationship the plenary power of Congress over navigable waters would empower it to deny the privilege of constructing an obstruction in those waters.” . The Court essentially held that the Corps, where approval of Transportation is also required, cannot be oblivious to the effect of fill projects on the beauty and conservation of natural resources. This inference arises from the fact that the Secretary of Transportation is statutorily required to consider conservation before granting a permit. But if the fill on which the causeway was to be built were completed at the time the permit for the causeway was requested, there would be no conservation factors for Transportation to consider. The Court held that the Corps could not blind itself to this fact and thereby cut off considerations of conservation by granting a fill permit without Transportation’s approval of the causeway. . 16 U.S.C.A. §§ 661-666. . Public Law 91-190, 42 U.S.C.A. §§ 4331-4347. . The Fish and Wildlife Coordination Act states: “Except as hereafter stated in subsection (h) of this section [not applicable], whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water other- wise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as providing for • the development and improvement thereof in connection with such water-resource development.” 16 U.S.C.A. § 662(a). . Presumably Landholders must first obtain the Corps of Engineers’ permit before becoming a “private agency under Federal permit or license.” . The Senate Report also shows how the exercise of the commerce power in the conservation arena ties in with its exercise in other areas: “The amendments proposed by this bill would remedy these deficiencies and have several other important advantages. The amendments, would provide that wildlife conservation shall receive equal consideration with other features in the planning of Federal water resource development programs. This would have the effect of putting fish and wildlife on the basis of equality with flood control, irrigation, navigation, and hydroelectric power in our water resource programs, which is highly desirable and proper, and represents an objective long sought by conservationists of the Nation.” 1958 U.S.Code Cong. & Admin.News, at 3450. . “POLICIES 1. It is the policy of the two Secretaries that there shall be full coordination and cooperation between their respective Departments on the above responsibilities at all organizational levels, and it is their view that maximum efforts in the discharge of those responsibilities, including the resolution of differing views, must be undertaken at the earliest practicable time and at the field organizational unit most directly concerned. Accordingly, District Engineers of the U. S. Army Corps of Engineers shall coordinate with the Regional Directors of the Secretary of the Interior on fish and wildlife, recreation, and pollution problems associated with dredging, filling, and excavation operations to be conducted under permits issued under the 1899 Act in the navigable waters of the United States, and they shall avail themselves of the technical advice and assistance which such Directors may provide. 2. The Secretary of the Army will seek' the advice and counsel of the Secretary of the Interior on difficult cases. If the Secretary of the Interior advises that proposed operations will unreasonably impair natural resources or the related environment, including the fish and wildlife and recreational values thereof, or will reduce the quality of such waters in violation of applicable water quality standards, the Secretary of the Army in acting on the request for a permit will carefully evaluate the advantages and benefits of the operations in relation to the resultant loss or damage, including all data presented by the Secretary of the Interior, and will either deny the permit or include such conditions in the permit as he determines to be in the public interest, including provisions that will assure compliance with water quality standards established in accordance with law. * * sM> . H.Rept. 989, 90th Cong., 1st sess., to accompany H.R. 25, pp. 4-5. See also S.Rept. No. 1419, July 17, 1968, 90th Cong., 2d sess., Senate Committee on Commerce, reporting on S. 695 and H.R. 25, pp. 13-14. H.R. 25 with revisions became the Act of August 3, 1968, 82 Stat. 625 (Pub.L. 90-454). . “As a result of the hearings and the discussions which ensued from the circularized draft proposal — particularly with respect to the permit provision for dredging, filling, and excavation — a memorandum of understanding was entered into between the Secretary of the Interior and the Secretary of the Army. This agreement set forth the policies and procedures to be followed regarding the control of dredging, filling, and excavation in the navigable waters of the United States, which would include many of our Nation’s estuarine areas. On August 2, the Department of the Interior filed a supplemental report on the bill. In its report to the committee, the Department stated that we believe that this memorandum of understanding provides an effective administrative solution to the problem of preventing unreasonable impairment of the natural resources of the Nation’s waterways and related environment, and preventing the pollution of the waters. In our opinion, the agreement makes the legislative approach set forth in H.R. 25 * * * for control for dredging, et cetera, unnecessary * * * (Omissions by the Committee.).” . Its newness, relevance and significance warrant reproduction in full. “This Act may be cited as the ‘National Environmental Policy Act of 1969’. PURPOSE Sec. 2. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation ; and to establish a Council on Environmental Quality. TITLE I DECLARATION OF NATIONAL ENVIRONMENTAL POLICY Sec. 101(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetieally and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences ; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. Sec. 102. The Congress authorizes and directs that, to the fullest extent possible : (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall— (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment; (B) identify and develop methods and procedures, in consolidation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and order major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes ; (D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative use of available resources; (E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment ; (F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (G) initiate and utilize ecological information in the planning and development of resource-oriented projects ; and (H) assist the Council on Environmental Quality established by title II of this Act. Sec. 103. All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act. Sec. 104. Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency. Sec. 105. The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.” Public Law 91-190, Title I, 83 Stat. 852. 42 U.S.C.A. §§ 4331-4347. . For like reasons the following disclaimer in the Fish and Wildlife Act of 1956, 70 Stat. 1119, 16 U.S.C.A. §§ 742a-742j, specifically 70 Stat. 1124, 16 U.S.C.A. § 742i is not decisive: “THE RIGHTS OF STATES. — Nothing in this Act (subsection 742a and note — 742d, 742e-742j of this title; 15 subsection 713c-3 and note) shall be construed (1) to interfere in any manner with the rights ’of any State under the Submerged Lands Act (Public Law 31, Eighty-third Congress) (43 subsection 1301 and notes — 1303, 1311-1315) or otherwise provided by law, or to supersede any regulatory authority over fisheries exercised by the States either individually or under interstate compacts ;” . The heading of the Report reads : “The Corps of Engineers, which is charged by Congress with the duty to protect the nation’s navigable waters, should, when considering whether to approve applications for landfills, dredging and other work in navigable waters, increase its consideration of the effects which the proposed work will have, not only on navigation, but also on conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway.” . “In 1968, the Corps revised its regulations to state that the Corps, in considering an application for a permit to fill, dredge, discharge or deposit materials, or conduct other activities affecting navigable waters, will evaluate “all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, esthetics, ecology, and the general public interest.” 33 CFR 209.120(d) (1) .4 The Corps applied this policy when it recently rejected the efforts of land developer’s to fill in a major part of Boca Ciega Bay, near St. Petersburg, Fla. See Zabel v. Tabb, 296 F.Supp. 764 (D.C.M.D.Fla., Tampa Div., Feb. 17, 1969), now on appeal to the U. S. Court of Appeals, Fifth Circuit, 430 F. 2d 199. The committee commends the Corps for recognizing its broader responsibilities to protect against unnecessary fills and other alteration of water bodies. * * 9K H.Rep. No. 91-917, p. 5. . “The Corps of Engineers should instruct its district engineers and other personnel involved in considering applications for fills, dredging, or other work in estuaries, rivers, and other bodies of navigable water to increase their emphasis on how the work will affect all aspects of the public interest, including not only navigation but also conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway.” H.Rep. No. 91-917. As the Committee views it, not only should the Corps consider conservation, but it should consider conservation to be endangered by every dredge and fill project and place the burden of proving otherwise on the applicant. See, e. g., the conclusion of the first section of the Report and its bold face type recommendation : “The Corps of Engineers should permit no further landfills or other work in the Nation’s estuaries, rivers and other waterways except in those cases where the applicant affirmatively proves that the proposed work is in accord with the public interest, including the need to avoid the piecemeal destruction of these water areas.” H.Rep. No. 91-917, p. 6.

Peconic Baykeeper, Inc. v. Suffolk County

CASTEL, District Judge: Defendants Suffolk County and the Suffolk County Department of Public Works, Division of Vector Control (collectively, the “County”) employ various measures to combat the spread of mosquito-borne illnesses, including the use of pesticides intended to kill adult mosquitoes in mid-flight. Plaintiffs Peconic Baykeeper, Inc., Kevin McAllister and Alfred Chiofolo contend that the County has violated the Clean Water Act (the “CWA”), 33 U.S.C. § 1251, et seq., in its application of certain pesticides, and, separately, its dredging of mosquito ditches. Plaintiffs, who commenced this action under the CWA’s citizen-suit provision, 33 U.S.C. § 1365(a)(1), sought declaratory and injunctive relief, as well as civil penalties to be paid to the United States Treasury. Following a six-day bench trial, the district court found that the disputed mosquito-control activities were lawful under the CWA. Judgment was entered for the defendants, and plaintiffs now appeal. For the reasons stated below, we affirm in part on an alternate ground not reached by the district court, vacate the judgment in part, and remand to the district court for further proceedings consistent with this opinion. Background We begin by surveying the origins of the County’s mosquito-control efforts. In 1993, the County found a presence of mosquito-borne disease for the first time in 75 years. There have since been approximately thirty reported cases of mosquito-transmitted illness in the County, four of which resulted in death. West Nile Virus is the County’s most common mosquito-borne illness, but there have been instances of malaria transmittal, including the infection of two children in 1999. Officials also feared an outbreak of Eastern Equine Encephalitis, a rare disease with high fatality rates that is known to be carried by mosquitoes in the northeastern United States. The rise in mosquito-borne illnesses prompted the New York State Commissioner of Health to declare a public health threat in Suffolk County in 1994, 1996 and 1999-2006. Mosquitoes generally breed in stagnant waters, such as marsh areas. The County has employed different tactics to curb the mosquito population. It has used numerous pesticides, including two marketed under the brand names Scourge and Anvil. The County sprayed Scourge and Anvil in ultra-low volume (“ULV”) aerosol mists through apparatuses attached to trucks and helicopters. When sprayed in ULV form, Scourge and Anvil create a “fog cloud” that envelops and kills mosquitoes. The labels for Scourge and Anvil were approved by the Environmental Protection Agency (the “EPA”) pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136, et seq., which is the statutory regime governing the labeling and use of pesticides. Under the heading “Environmental Hazards,” Scourge’s label states in part: This pesticide is highly toxic to fish. For terrestrial uses, do not apply directly to water, to areas where surface water is present or to intertidal areas below the mean high water mark. Drift and runoff from treated sites may be hazardous to fish in adjacent waters. Consult your State’s Fish and Wildlife Agency before treating such waters. As to ULV applications, the Scourge label states: “Spray parks, campsites, woodlands, athletic fields, golf courses, swamps, tidal marshes, residential areas and municipalities around the outside of apartment buildings, restaurants, stores and warehouses. Do not spray on cropland, feed or foodstuffs. Avoid direct application over lakes, ponds and streams.” As understood by the County, the phrase “[ajvoid direct application over” when used in reference to ponds and streams requires the County to turn off ULV jets when aircraft fly above bodies of fresh water. The Anvil label contains similar restrictions against applications “directly to water, or to areas where surface water is present or to intertidal areas below the mean high water mark,” and also allows spraying in, among other areas, “swamps” and “marshes.” In carrying out its mosquito-control measures, the County is under the oversight of the New York State Department of Environmental Conservation (the “DEC”), an agency with EPA-delegated authority to enforce the CWA in the state. N.Y. Envir. Conserv. L. § 17-0801 (authorizing New York State to issue CWA permits); 33 U.S.C. § 1342(b) (authorizing approved states to issue CWA permits). As part of its CWA enforcement powers, the DEC issues State Pollutant Discharge Elimination System (“SPDES”) permits. N.Y. Envir. Conserv. L. § 17-0701. In authorizing the discharge of a pollutant, an SPDES permit is equivalent to a National Pollutant Discharge Elimination System (“NPDES”) permit issued by the EPA pursuant to the CWA. See 33 U.S.C. §§ 1311(a), 1342(b). The DEC reviewed and approved maps delineating the area to be sprayed by the County. The DEC also gave the County guidance as to whether it was required to receive an SPDES permit prior to spraying, or whether the pesticide application was exempt from the CWA’s permitting requirement. The DEC advised the County that so long as its spraying complied with the FIFRA label, the CWA did not require issuance of an SPDES permit pri- or to the application of pesticides. The DEC reached this conclusion as early as 2001, and directed the County accordingly. The EPA later codified the principle that an application of pesticides consistent with FIFRA labeling did not constitute the discharge of a pollutant, and therefore did not violate the CWA, first through an Interim Statement, 68 Fed.Reg. 48,385 (Aug. 13, 2003), and then in a Final Rule, 40 C.F.R. § 122.3(h). The district court found that the County’s application of Scourge and Anvil fully conformed with the FIFRA labeling. It held that FIFRA-compliant spraying activity did not amount to the discharge of a pollutant into navigable waters from a point source, and therefore did not violate the CWA. See 33 U.S.C. §§ 1311(a), 1362(12). The district court also held that the spraying activity was consistent with the CWA because the application of pesticides via spray jets attached to trucks and helicopters did not amount to discharge from a “point source,” as that phrase is defined in the statute. Separate from the ULV administration of pesticides, the County also maintains a network of mosquito ditches, the purpose of which is to drain surface waters from marshlands and thereby reduce mosquito breeding grounds. Originally constructed in the 1930s, the County’s grid of mosquito ditches also provide a habitat for native fish species, such as killies, that eat mosquito larvae. Plaintiffs contended that certain of the County’s dredging activities, purportedly undertaken in an effort to maintain the ditches, discharged dredged matter such as silt and foliage into the waters, and did not fall within the CWA’s permitting exemption for the maintenance of drainage ditches as set forth at 33 U.S.C. § 1344(f)(1)(C). They also asserted that the County dug new maintenance ditches, so that the dredging activities brought “an area of navigable waters into a use to which it was not previously subject,” triggering the statute’s recapture provision and requiring an SPDES. 33 U.S.C. § 1344(f)(2). The district court held that the mosquito ditches constituted “drainage ditches” under the CWA, and rejected testimony, in part on credibility grounds, that the defendants were dredging new ditches. As a result, the district court concluded that the County’s ditch-maintenance activities were exempt from the SPDES permitting requirement, and that the County did not run afoul of the statute’s recapture provision, which “removes the availability of the ... exemption” when an area of navigable waters is brought into a new use. 33 U.S.C. §§ 1344(f)(1)(C) & (f)(2); June v. Town of Westfield, NY, 370 F.3d 255, 258 n. 3 (2d Cir.2004). Standard of Review We review a district court’s findings of fact following a non-jury trial under a clearly erroneous standard. Fed.R.Civ.P. 52(a)(6); Ceraso v. Motiva Enters., LLC, 326 F.3d 303, 316 (2d Cir.2003). A district court’s application of law to the facts is reviewed de novo. Henry v. Champlain Enters., 445 F.3d 610, 617-18 (2d Cir.2006). Discussion I. The Lawfulness of the County’s Spraying of Pesticides. A. FIFRA-Compliant Spraying. Because the district court based its holding principally on the conclusion that the County’s spraying activities complied with FIFRA and therefore were lawful under the CWA, we begin by reviewing the two statutes. FIFRA functions as “a comprehensive scheme to regulate the use, sale and labeling, of pesticides — partly through EPA registration of the substances, including review, suspension and cancellation of registration.” N.Y. State Pesticide Coal., Inc. v. Jorling, 874 F.2d 115, 117 (2d Cir.1989). Under FIFRA, it is unlawful “to use any registered pesticide in a manner inconsistent with its labeling.” 7 U.S.C. § 136j(a)(2)(G). The EPA has had authority over implementation of FIFRA’s label-registration process since 1970. See Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 437, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005). The EPA also has authority over the implementation of the CWA. 33 U.S.C. § 1251(d). Enacted by Congress in 1972, the CWA’s purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). It prohibits “the discharge of any pollutant by any person,” unless done in compliance with a provision of the statute. 33 U.S.C. § 1311(a). The phrase “discharge of a pollutant” is defined to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The word “pollutant,” in turn, is defined as including “chemical wastes.” 33 U.S.C. § 1362(6). The CWA does not define the phrase “chemical wastes.” The statute’s prohibition against the addition of a pollutant into navigable waters is qualified by the EPA’s power to issue NPDES permits. See 33 U.S.C. § 1342(a). Section 1342(a)(1) authorizes the EPA to “issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this Title,” subject to a public hearing and certain other conditions. It also grants the EPA power to allow states to implement their own CWA permitting regimes. 33 U.S.C. § 1342(b). In the State of New York, an SPDES permit issued by the DEC has the same force as an NPDES permit issued by the EPA. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir.2001) (“In New York, the NPDES program is administered by NYSDEC and referred to as the State Pollution Discharge Elimination System (‘SPDES’).”). In 2003, the EPA issued its Interim Statement attempting to give guidance on FIFRA compliance and NPDES permitting. The Interim Statement concluded that a label-compliant application of pesticides “to control pests that are present over waters of the United States that results in a portion of the pesticides being deposited to waters” does not require an NPDES permit. 68 Fed.Reg. at 48387. It reasoned that pursuant to FIFRA, the EPA is charged with considering whether a pesticide will perform its intended function without having an unreasonably adverse effect on the environment. Id. The Interim Statement noted that the CWA defines “chemical wastes” as one category of “pollutant,” but concluded that FIFRAapproved pesticides applied according to their labeling cannot constitute “chemical wastes” because they are “EPA-evaluated products designed, purchased and applied to perform their intended purpose of controlling target organisms in the environment.” 68 Fed.Reg. at 48388. The reasoning of the Interim Statement was formally adopted by the EPA in 2005, when it issued the Final Rule. The Final Rule stated in relevant part that an NPDES permit was not required for “[t]he application of pesticides consistent with all relevant requirements under FIFRA (i.e., those relevant to protecting water quality)....” 40 C.F.R. § 122.3(h). As an example, the Final Rule cited the following as an instance of FIFRA-compliant spraying that would not require an NPDES permit: The application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively; for example, when insecticides are aerially applied to a forest canopy where waters of the United States may be present below the canopy or when pesticides are applied over or near water for control of adult mosquitoes or other pests. Id. § 122.3(h)(2). Less than two months after judgment was entered by the district court in this case, the Sixth Circuit vacated the EPA’s Final Rule as contrary to the text of the CWA. Nat'l Cotton Council of Am. v. E.P.A., 553 F.3d 927 (6th Cir.2009). The petitioners in National Cotton Council included plaintiff Peconic Baykeeper, Inc., whose timely petition to this Court was consolidated by the Judicial Panel on Multidistrict Litigation with petitions pending in the Sixth Circuit. Id. at 932 & n. 3. In vacating the EPA’s Final Rule, the Sixth Circuit held that the application of pesticides “ ‘above’ or ‘near’ waterways” that leave “excess” or “residual” pesticide in navigable waters meets the CWA’s definition of “chemical waste.” Id. at 936-37. For this, among other reasons, the Sixth Circuit concluded that the Final Rule was contrary to the CWA’s text and must be vacated. Id. at 940. After the Sixth Circuit ruled in National Cotton Council, the EPA moved to stay the mandate. It argued, among other things, that immediate issuance of a mandate vacating the Final Rule would be unduly disruptive to state and federal permitting authorities and would trigger a rash of citizen suits. The Sixth Circuit granted the EPA’s motion, and stayed issuance of the mandate until April 9, 2011. Case No. 06-4630 (6th Cir. June 8, 2009). The EPA has publicly announced that it “plans, before the ruling takes effect (April 9, 2011), to issue a final general NPDES permit for covered pesticide applications,” and to help develop new state-level permitting plans. See National Pollution Discharge Elimination System (NPDES), Court Grants EPA 2-Year Stay, http:// cfpub.epa.gov/NPDES/HOME.CFM? PROGRAM-ID=41 (last visited Mar. 29, 2010). The EPA has not sought further review of the National Cotton Council ruling, and the Supreme Court has denied petitions for certiorari filed by certain industry intervenors. See CropLife Am. v. Baykeeper, — U.S. —, 130 S.Ct. 1505, — L.Ed.2d — (2010); Am. Farm Bureau Fed’n v. Baykeeper, — U.S. —, 130 S.Ct. 1505, — L.Ed.2d — (2010). We express no views on the reasoning of National Cotton Council. However, in light of the Sixth Circuit’s stay of mandate, the Final Rule remains in force through April 9, 2011. Therefore, if the EPA adheres to its expressed intent, then by April 9, 2011, the EPA and state authorities will have implemented a new permitting framework for the application of pesticides. In the interim, the application of pesticides consistent with the Final Rule remains lawful. In the district court, plaintiffs sought a declaratory judgment that the County’s spraying of pesticides violated the CWA, 33 U.S.C. §§ 1311, 1342. The Declaratory Judgment Act confers on federal courts “unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); 28 U.S.C. § 2201(a) (“Any court may declare the rights and other legal relations of any interested party ....”) (emphasis added). “The propriety of issuing a declaratory judgment may depend upon equitable considerations and is also informed by the teachings and experience concerning the functions and extent of federal judicial power.” Green v. Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985) (citation and quotation marks omitted). Among the relevant considerations in exercising discretion is “whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.2005). Equitable considerations counsel against declaring the rights of the parties as to past spraying in compliance with the EPA’s interim guidance and its Final Rule. Spraying that occurs prior to expiration of the Sixth Circuit’s stay of mandate, and is consistent with the EPA-approved FIFRA labeling, remains in compliance with the Final Rule. Once the stay of mandate expires, a yet-to-be finalized CWA permitting system will govern the application of pesticides. Similarly, because the stay of mandate maintains the status quo, and the EPA has expressed the intent to establish a nationwide permitting process, injunctive relief is unnecessary to prevent the alleged ongoing or future violations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 316, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (CWA does not require injunctive relief, and permits courts to “contemplate[ ] the exercise of discretion and balancing of equities” in crafting injunctive relief). Because defendants’ FIFRA-compliant spraying is not contrary to governing regulatory standards, there likewise is no basis to impose civil penalties pursuant to the relevant CWA provision, 33- U.S.C. § 1319(d). See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185-86, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (upon a finding of violation, CWA civil penalties are levied to enforce immediate compliance and deter future violations). This does not, however, end our review of the district court’s findings with respect to the County’s spraying activities made in purported compliance with FI-FRA. Although the record indicates that the defendants’ application of pesticides was, in the main, consistent with the EPA-approved FIFRA label, it also reveals instances of aerial spraying over creeks. Such spraying may have been contrary to the relevant FIFRA labeling of Scourge and Anvil, which respectively forbid “direct application over lakes, ponds and streams” or “areas where surface water is present....” The district court acknowledged the existence of evidence that the County may have sprayed above various creeks, but did not adequately explain the basis for its finding that the County fully complied with the pesticides’ label instructions. Not all spraying activity above or near water is at variance with the FIFRA labeling. For instance, spraying above the “mean high water mark” of a coastline is permissible under the labeling of Anvil. Scourge allows for application “as a mosquito adulticide in ... swamps [and] tidal marshes.... ” The district court also heard testimony that pursuant to DEC guidance, the County operated with different restrictions for spraying activities in or around tidal wetlands, as opposed to freshwater wetlands. It also may be that the “creeks” identified in the record are not bodies of water covered by the labeling because, for example, they may be classified as “tidal marshes.” Because the district court did not explain the basis for its conclusion that all spraying was in compliance with the FIFRA label, the judgment of the district court is vacated insofar as it held that the County’s spraying activities were uniformly in compliance with the FIFRA requirements, and the ease is remanded for further factfinding. The district court may, in the exercise of discretion, allow the trial record to be reopened. B. The District Court’s Alternate Holding as to Point Sources. As an independent basis for finding all spraying activities lawful under the CWA, the district court concluded that the County’s spray applicators attached to trucks and helicopters were not “point sources.” The district court reasoned that because the trucks and helicopters discharged pesticides into the air, any discharge was indirect, and thus not from a point source. We disagree. Under the CWA, a “point source” is defined as “any discernable, confined and discrete conveyance, including but not limited to any ... container, rolling stock ... or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The “ ‘definition of a point source is to be broadly interpreted’ ” and “ ‘embraces] the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States.’ ” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 219 (2d Cir.2009) (quoting Dague v. City of Burlington, 935 F.2d 1343, 1354-55 (2d Cir.1991)); see also Concerned Area Residents for Env’t v. Southview Farm, 34 F.3d 114, 118-19 (2d Cir.1994) (a truck with attached manure spreader qualified as “rolling stock” or a “container” and therefore was a “point source”); League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1185 (9th Cir.2002) (the CWA’s definition of point source “encompasses an aircraft equipped with tanks spraying pesticide from mechanical sprayers directly over covered waters.”). Here, the spray apparatus was attached to trucks and helicopters, and was the source of the discharge. The pesticides were discharged “from” the source, and not from the air. The word “from” is defined “to indicate a starting point,” and also denotes the “source or original or moving force of something....” Webster’s Third International Dictionary Unabridged 913 (2002). The district court’s conclusion that the pesticides were not discharged from a point source was in error. II. The Lawfulness of the County’s Dredging Activities. Separate and apart from the County’s use of pesticides, the plaintiffs challenged the County’s dredging of its mosquito ditches. “Dredged spoil” is one category of pollutants recognized in the CWA. 33 U.S.C. § 1362(6). Unless otherwise excepted, their discharge into navigable waters requires an NPDES permit. 33 U.S.C. § 1311(a). However, the CWA sets forth categories of “[n]on-prohibited discharge of dredged or fill material.” 33 U.S.C. § 1344(f). This includes materials dredged for “the maintenance of drainage ditches.” 33 U.S.C. § 1344(f)(1)(C). The district court concluded that the County’s activities as to mosquito ditches, which were dug in the 1930s to drain water from wetlands in order to reduce mosquito breeding grounds, were lawful under the CWA and did not require a permit. The district court found that “[t]he purpose of the ditches originally was to reduce mosquito production both by draining off surface water and by introducing fish into the areas where mosquitoes would breed.” It held that the mosquito ditches were therefore “drainage ditches,” and that no credible evidence supported plaintiffs’ contention that the County created new mosquito ditches. This finding, based in part on an assessment of witness credibility, was not clearly erroneous. Because the CWA establishes a permit exemption for the maintenance of drainage ditches, and the ditches had as their purpose the draining of surface waters, we agree with the district court that the County’s maintenance activities were exempt from the CWA’s permit requirements. 33 U.S.C. § 1344(f)(1)(C). The record also supports the conclusion that the County’s activities did not “bring[ ] an area of the navigable waters into a use to which it was not previously subject,” and thus did not fall within the CWA’s recapture provision, which would require an SPDES permit for areas of navigable waters brought into new use. 33 U.S.C. § 1344(f)(2); June, 370 F.3d at 258 n. 3. Plaintiffs also challenged work performed in 2000 at one location, the William Floyd Estate, contending that it included the digging of new ditches. The record indicates that the DEC issued a notice of violation for this work. The district court found as a fact that the work at the William Floyd Estate was performed pursuant to permits issued by the DEC and Army Corps of Engineers. At trial, the district court heard testimony of a County employee who testified that the work occurred pursuant to a nationwide permit from the Army Corps of Engineers, and that the U.S. Fish and Wildlife Service sponsored the project and obtained necessary permits. The district court’s finding was not clearly erroneous. Conclusion For the reasons stated above, we hold as follows: (1) We VACATE the judgment of the district court insofar as it held that the County’s spraying activities were uniformly in compliance with the FIFRA requirements; (2) We VACATE the judgment of the district court insofar as it held, in the alternative, that the trucks and helicopters used to spray the pesticides were not “point sources” for the purposes of the CWA; and (3) We AFFIRM the judgment of the district court insofar as it held that the County’s dredging activities did not violate the CWA. Any appeal from a subsequently entered final judgment should be referred to this panel. . The definition of "creek” includes "[a] narrow recess or inlet in the coast-line of the sea,” as well as "any narrow arm or corner of the sea.” 3 Oxford English Dictionary 1142 (2d ed.1989).

Coon ex rel. Coon v. Willet Dairy, LP

PER CURIAM: Plaintiffs-Appellants, a group of neighbors in East Genoa, New York (“Appellants”), appeal the decision of the United States District Court for the Northern District of New York (Scullin, J.) granting Defendants-Appellees Willet Dairy and its owners Scott and Dennis Eldred (collectively “Willet Dairy”) summary judgment on all of Appellants’ claims. Coon v. Willet Dairy, LP, Nos. 5:02-cv-1195, 5:04-cv-917, 2007 WL 2071746, 2007 U.S. Dist. LEXIS 51718 (N.D.N.Y. July 17, 2007). In August 2004, Appellants brought a citizen suit pursuant to 33 U.S.C. § 1365, claiming, inter alia, that Willet Dairy violated the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. On appeal, Appellants contend that summary judgment was improper because (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA. We consider these issues in turn, reviewing de novo the District Court’s grant of summary judgment. Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir.2000). In doing so, we recognize that the first three issues can be dealt with under this Court’s existing precedents, but that the Appellants’ stream diversion claim requires us to interpret, for the first time in our Circuit, 33 U.S.C. § 1344(f)(2) as it relates to the construction of stock ponds. First, Appellants contend that Willet Dairy violated the CWA by operating as a Concentrated Animal Feeding Operation (“CAFO”) without a permit before July 1999. Appellants, however, failed to raise this claim properly before the District Court, and therefore we deem it waived. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2d. Cir.2002). Moreover, even if Appellants had sufficiently argued this claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57-61, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Because Willet Dairy has had permit coverage under New York Department of Environmental Conservation’s (“DEC”) general permit since July 1999, there is no “evidence from which a factfin-der could find a likelihood of continuing violations.” Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1312 (2d Cir.1993). Second, the District Court correctly found that Willet Dairy was shielded by its “permit shield” from citizen suits for violations between July 1999 and December 2006. Coon, 2007 WL 2071746 at *5, 2007 U.S. Dist. LEXIS 51718 at *8-13. The “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. Atl. States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir.1994) (noting that the Supreme Court found the purpose of the permit shield was to relieve permit holders from having to litigate whether their permits are sufficiently strict) (citation omitted). That is, compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations. See id. Because under the terms of the renewed permit, Willet Dairy did not have to be fully compliant with its permit until December 2006 — after the lawsuits’ initiation — the District Court properly held that there could be no viable CWA citizen suit against Willet Dairy. There is no indication, as Appellants contend, that there were any permit requirements for which a citizen could bring suit before the date Willet Dairy had to be in full compliance with its permit. Further, though Appellants correctly note that Willet Dairy was supposed to be on a schedule toward compliance, they do not offer particular evidence showing how Wil-let Dairy failed to meet any specific deadlines. Finally, the permit provides that the DEC has the authority to monitor and sanction Willet Dairy before its compliance deadline. Because the DEC’S renewed general permit clearly extends the compliance deadline for large CAFO’s, such as Willet Dairy, until December 2006, we also reject Appellants’ claim that Willet Dairy had to be in full compliance by July 2004. Third, we find that the District Court properly granted summary judgment on Appellants’ RCRA claims. Coon, 2007 WL 2071746 at *6, 2007 U.S. Dist. LEXIS 51718 at *14-17. The RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. See Conn. Coastal, 989 F.2d at 1313. The RCRA also provides that “[njothing in this chapter shall be construed to apply to ... any activity or substance which is subject to the [CWA] ... except to the extent that such application (or regulation) is not inconsistent with the requirements of [the CWA].” 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers. Therefore, pursuant to Section 6905(a), the RCRA cannot apply to these activities and substances in this instance because any such application would be inconsistent with the CWA’s “permit shield.” Lastly, we turn to Appellants’ contention that Willet Dairy needed a permit before it diverted Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties. This is a new issue for our Circuit and thus we write to clarify our position. Before diverting a stream, the CWA generally requires that a party obtain a permit from the U.S. Army Corps of Engineers (“the Corps”), which administers the section of the CWA that governs discharges of dredged or fill material. See 33 U.S.C. §§ 1344(a),(d). In December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps. After complaints about the diversion, Willet Dairy sought a jurisdie-tional determination from the Corps on whether it needed a permit. The Corps then inspected, and its answer was no. The Corps’s decision that it did not have jurisdiction over the pond project stemmed from an exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds.... ” 33 U.S.C. § 1344(f)(1)(C); 33 C.F.R. § 323.4(a)(3). There is an exception to this exemption, however, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” 33 U.S.C. § 1344(f)(2). Appellants contend that because Willet Dairy was constructing a new pond, it was using the area for a new use, so the activity falls within the recapture provision. Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. See Conant v. United States, 786 F.2d 1008, 1010 (11th Cir.1986) (per curiam) (“The plain purpose of the statute and regulations is to allow people to build ponds in connection with a previously established farming operation.”); In re Carsten, 211 B.R. 719, 736 (Bankr. D.Mont.1997) (“Consequently, as applied to such construction the ‘new use’ provision of § 1344(f)(2) cannot mean ... that if a farm pond did not in the past exist, then the construction of such constitute a new use sufficient to invoke the recapture provision. Again, such an interpretation would impermissibly render the pond construction exemption a mere superfluity.”)- We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance. Cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Willet Dairy, therefore, did not need a permit to divert Schaeffer Brook to construct the stock pond, and summary judgment on this claim was proper. We have carefully considered all of Appellants’ claims, and we find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED. . For example, there is no indication that Willet Dairy had to implement the generic requirements in the DEC general permit immediately. . We recognize that limiting citizen suits in this respect can cause serious injury to persons living near environmental dangers if the DEC and other environmental regulatory agencies are unable to monitor and sanction polluters effectively before compliance deadlines. Given that Willet Dairy had more than seven years before it was required to comply fully with its permit, that means no citizen could have brought a suit over that entire time for CWA violations. Such regulatory agencies may be unable to ensure that polluters are acting in accordance with their compliance schedules, given the numerous violations likely to occur. Consequently, limiting the ability of “private attorneys general” to bring suit until after compliance deadlines may be inadequate for ensuring the safety of our environment and for protecting citizens from serious injury. But that is the remedy that Congress has provided and to which we are bound. See Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). .Appellants argue that the extended compliance deadline does not apply to Willet Dairy because of a provision in the renewed permit stating: "Existing Permits. Unless otherwise notified by the [DEC], coverage under this permit does not suspend, revoke, or modify the provisions of any other permit issued by the Department.” This provision, however, does not apply to the original general permit (GP-99-01), as it was, in effect, nullified and superceded by the issuance of the new permit (GP-04-02). Otherwise, the express language of the permit' — that "existing Large CAFOs” have an extended compliance deadline— would be meaningless as the new permit could not change the deadline for any existing CAFOs. . Appellants attempt to distinguish the facts of their case from those of Carsten, noting that in Carsten the farm dredged a shallow marsh that was already being used as a watering hole to create a pond for its livestock. In re Carsten, 211 B.R. at 721. This observation is irrelevant, however, because we find that the creation of an entirely new farm pond, even where no similar feature existed before, is permissible under- the recapture provision as long as it is constructed on an existing farm operation.

June v. Town of Westfield

SACK, Circuit Judge. The plaintiff, Michael June, appeals from a summary judgment granted by the United States District Court for the Western District of New York (Richard J. Ar-cara, Judge) in favor of the defendants, the Town of Westfield and the Village of Westfield, on June’s claims that the defendants violated provisions of the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”), and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”). BACKGROUND In the mid-1990s, a stretch of Mt. Baldy Road, in Westfield, New York, was in danger of collapse. Its shoulder was narrow, dropping steeply to a gully below. The embankment on which it was built had eroded to within a few feet of the.road. In 1997 and 1998, the defendant Town of Westfield (“Town”) therefore deposited fill, consisting of dirt, gravel, sand, rocks, and cement, to shore up the embankment. In so doing, the Town expanded the embankment adjoining the road and filled in part of the gully. June asserts that the defendants used several tens of thousands of cubic yards of fill in the process. On November 7, 2001, June brought this action in the United States District Court for the Western District of New York. He alleged, first, that the defendants had discharged into a “water of the United States” solid waste, consisting of, among other substances, fill materials, without a permit, in violation of 33 U.S.C. § 1311 and the permitting provisions of section 404 of the CWA, 33 U.S.C. § 1344. Second, he alleged that the defendants discharged storm waters associated with industrial activity from a “point source” into navigable waters without a permit, in violation of 33 U.S.C. § 1311 and the permitting provisions of section 402 of the CWA, 33 U.S.C. § 1342. Third, June alleged that the defendants engaged in the open dumping of solid waste in violation of section 4005 of the RCRA, 42 U.S.C. § 6945(a). The defendants interposed two threshold defenses to June’s suit and moved for dismissal or alternatively for summary judgment on the basis of them. The defendants asserted that their discharge of fill material was exempt from the permitting provisions of sections 1342 and 1344 because the defendants’ activity fell under the maintenance exemption of 33 U.S.C. § 1344(f)(1)(B), and that, in any event, both the CWA and the RCRA claims were barred because the discharge was completed before suit was filed and therefore could not constitute an ongoing violation necessary for a violation of the CWA, see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), or the RCRA, see S. Rd. Assocs. v. Int’l Bus. Machs. Corp., 216 F.3d 251, 254-55 (2d Cir.2000). On the basis of both these defenses, the district court granted summary judgment to the defendants, concluding that the activities of which June complained fell within the section 1344(f) maintenance exemption and that June had failed to satisfy his burden of coming forward with evidence to establish an ongoing violation of either the CWA or the RCRA. June appeals. DISCUSSION June argues that the maintenance exception does not apply because there was no pre-existing structure upon which maintenance might have been performed by the defendants and that there is an ongoing violation as required by both the CWA and the RCRA. I. Standard of Review We review a district court’s grant of summary judgment de novo, construing “the evidence in the light most favorable to the non-moving party and ... drawing] all reasonable inferences in its favor.” World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 165-66 (2d Cir.2003). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). II. The Clean Water Act Claims A. The CWA Claims Under 33 U.S.C. §§ m2 and 1SU June alleges that the defendants were dumping “fill material” into waters of the United States without a permit, in violation of 33 U.S.C. § 1311 and the permitting provisions of 33 U.S.C. § 1344, and that the defendants were discharging “pollutants” from a point source without a National Pollutant Discharge Elimination System permit, in violation of 33 U.S.C. § 1311 and the permitting provisions of 33 U.S.C. § 1342. Under 33 U.S.C. § 1311, the discharge of any pollutant into navigable waters of the United States is prohibited except where authorized by permit. Section 1344(a) authorizes the Secretary of the Army to issue permits for “the discharge of dredged or fill material into the navigable waters” of the United States. 33 U.S.C. § 1344(a). Section 1342(a), which sets forth the National Pollutant Discharge Elimination System, authorizes the Secretary of the Army, after opportunity for public hearing, to issue a permit for the discharge of any pollutant or combination of pollutants into the navigable waters of the United States. 33 U.S.C. § 1342(a)(1). B. The Maintenance Exemption The maintenance exemption of section 1344 states: Except as provided [by .a paragraph of the statute not relevant to June’s claims], the discharge of dredged or fill material— for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures!,] is not prohibited by or otherwise subject to regulation under this section .... 33 U.S.C. § 1344(f)(1). The defendants argue that Mt. Baldy Road, for the repair of which they were using fill, was a “currently serviceable ... transportation structure,” that the purpose of their fill activity was to maintain it, and that the work was therefore exempt from the permit requirement of sections 1342 and 1344. June argues that Mt. Baldy Road was not a “structure” under section 1344(f)(1)(B). We agree with the defendants. Neither party has called to our attention case law addressing the definition of the terms “structure” or “transportation structure” in this section, and we have discovered none ourselves. But we think that the scope of the terms in this context is clear: An embankment supporting a road for transit by motor vehicles is a “transportation structure.” To treat a thoroughfare like Mt. Baldy Road otherwise would be to thwart the apparent purpose of the provision: to permit routine government maintenance of transportation, public water-supply, and similar facilities without the expense, consumption of time, and consequent danger to people and facilities that would inhere in a requirement for a prior permit. Accepting for these purposes the observation by other courts that exemptions to the CWA should be construed narrowly, see United States v. Brace, 41 F.3d 117, 124 (3rd Cir.1994), cert. denied, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995); United States v. Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir.1983), we nonetheless conclude that Mt. Baldy Road and the embankment that supported it were “transportation structures.” We note that 33 C.F.R. § 323.4(a)(2), a regulation propounded by the Army Corps of Engineers in connection with procedures to be used for issuing permits for discharges of dredged or fill material into waters of the United States, provides that “[mjaintenance does not include any modification that changes the character, scope, or size of the original fill design,” id. Therefore, if the maintenance of Mt. Baldy Road changed “the character, scope, or size of the original fill design,” the maintenance exemption was inapplicable and a permit was required. If, as June asserts, the defendants “dumped several tens of thousands of cubic yards of fill into the overflow tributary,” Appellant’s Br. at 17, then it is possible that their “modification ... ehange[d] the character, scope, or size of the original fill design” of the embankment adjacent to Mt. Baldy Road. Although June intimates that the scope of the project was too large to constitute routine maintenance, he did not specifically raise this issue or discuss the federal regulation supporting this argument in either the district court or on appeal. He therefore cannot claim benefit of such a theory here. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (stating that Courts of Appeal need not consider issues raised for the first time on appeal). Because the only ground on which June challenges the district court’s determination that the defendant qualified for the maintenance exemption is unavailing, we affirm the district court’s grant of summary judgment on June’s CWA claims. III. The RCRA Claim June also argues that the defendants engaged in the open dumping of solid waste in violation of section 4005 of the RCRA, 42 U.S.C. § 6945. In South Road, 216 F.3d at 254-55, we addressed a lawsuit that was, in relevant part, brought under the same provisions of the RCRA as those under which June brings suit: 42 U.S.C. § 6972, permitting citizen law suits under the Act, and 42 U.S.C. § 6945(a), prohibiting certain open dumps and open dumping. We concluded that “[w]hat is prohibited by the statute and the [associated] regulation [40 C.F.R. § 257.3-4] (read together) is the act of introducing a substance that causes ... exceedances, not the action of the [toxic substance] on the environment.” Id. at 256. A “historical act cannot support a claim for violation of 42 U.S.C. § 6945(a).” Id at 257. June fails to allege that, at the time of the filing of his lawsuit, the defendants “continued to introduce substances that made the ... exceedances worse.” Id. His allegations were of a purely historical act. As the district court held, June’s RCRA claim therefore fails as a matter of law. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. . It appears that the Village is named as a defendant in this action solely because it owns the land involved in the dispute. . The maintenance exemption applies to violations of section 1342, as well. See 33 U.S.C. § 1344(f)(1)(B). . In order to be exempt from the section 404 permit requirement, the defendants must show not only that their activities are exempt from the permitting requirement under the maintenance or another applicable provision but also that their activities, thus exempt, do not fall under the "recapture” provision, 33 U.S.C. § 1344(f)(2). The "recapture” provision, 33 U.S.C. § 1344(f)(2), which removes the availability of the section 1344(f)(1) exemption from permitting requirements, provides: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). It is clear, even construing the facts in the light most favorable to June, that the "purpose” of the defendants' rehabilitation project was not to "bring[] an area of the navigable waters into a use to which it was not previously subject.” Id. . Because we conclude that the maintenance exemption applies, we need not and do not decide whether the filling activities complained of, which were completed before June’s lawsuit was filed, constitute an ongoing violation as required by the CWA. See Gwaltney of Smithfield, 484 U.S. at 59, 108 S.Ct. 376 ("[C]itizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation”); cf. S. Rd. Assocs., 216 F.3d at 254-55 (2d Cir.2000) (discussing the RCRA and stating that "a defendant's current activity at the site is not a prerequisite for finding a current violation under [the citizen action provision of the RCRA]. The inquiry required ... is whether the defendant’s actions—past or present—cause an ongoing violation of RCRA.”). Most courts that have addressed the question have concluded on the facts before them that the continuing presence of a pollutant constitutes a continuing discharge of the pollutant into adjacent water under the CWA. See, e.g. Atl. States Legal Found., Inc. v. Hamelin, 182 F.Supp.2d 235, 248 n. 20 (N.D.N.Y.2001) (collecting cases). . Section 6945 of the RCRA states: [Ajny solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste is prohibited, except in the case of any practice or disposal of solid waste under a timetable or schedule for compliance established under this section. The prohibition contained in the preceding sentence shall be enforceable under section 6972 of this title [the citizen suit provision] against persons engaged in the act of open dumping. 42 U.S.C. § 6945(a).

United States v. Brace

OPINION OF THE COURT COWEN, Circuit Judge. The United States brought this action in the United States District Court for the Western District of Pennsylvania against Robert Brace, individually, and Robert Brace Farms, Inc., a Pennsylvania corporation (collectively, “Brace” or “defendants”), alleging violations of the requirement in Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, that a permit be obtained for the discharge of dredged or fill material into waters of the United States. The United States sought restoration of the site, a permanent injunction and civil penalties pursuant to 33 U.S.C. § 1319(d). The district court bifurcated the action: a trial on liability issues and a trial on remedy issues. Shortly before the liability trial, Brace stipulated that at the time of the discharges, “the approximately thirty-acre site that is the subject of this lawsuit was wetlands as defined at 33 C.F.R. § 328.3(b) and 40 C.F.R. § 232.2(r).” Pre-Trial Stipulation (Dec. 16, 1993); Appendix (“App.”) at 40. The United States, either by stipulation or at trial, established the five elements of a prima facie case for violations of Section 404 of the CWA: (1) defendants admitted that they are “persons” within the meaning of the CWA; (2) defendants admitted that the activities at the site were conducted without a permit; (3) defendants stipulated that the site was a wetland at the time of the discharges; (4) the district court held that the site constituted waters of the United States at the time of defendants’ activities; and (5) the district court held that defendants’ clearing, mulching, churning, and levelling of the formerly wooded and vegetated site constituted a discharge of pollutants into the waters of the United States and that defendants paid for excavation and installation of drainage tubing in an effort to drain the site. Brace asserted, and the district court held, that the discharges were exempt from the permit requirement under Section 404(f)(1). The court concluded that: (1) Brace’s activities on the wetland constituted “normal farming activities” exempt under Section 404(f)(1)(A); and (2) Brace’s activities constituted “upland soil and water conservation practices” also exempt under that same provision of the CWA. United States v. Brace, C.A. No. 90-229 (W.D.Pa. Dee. 16,1993), slip op. at 22-23. In addition, the court found that Brace’s conduct in “preserving and regularly cleaning the existing drainage system on the site” was exempt from the permit requirement as “maintenance of the drainage system” under Section 404(f)(1)(C). Id. at 23. The court also held that the recapture provision of Section 404(f)(2) does not apply to this ease because “[t]he land is not being converted to a use to which it was not previously subject, nor has significant impairment to the reach or flow of waters been proven.” Id. at 22. The district court entered judgment in defendants’ favor. We hold that the district court incorrectly applied the requirements of the CWA permit exemption provisions. We will reverse the order of the district court and remand the case to determine the appropriate remedy. I. Brace is a farmer who owns approximately 600 acres of real property in Erie County, Pennsylvania, including the subject thirty-acre wetland site (“the site”). Brace Farms, Inc. is a Pennsylvania corporation engaged principally in the farming business. Brace’s parents and other family members have always earned their principal livelihood from farming activities. Brace purchased a parcel of farm property from his father in 1975. A portion of that property contains the site. The property has been in the Brace family since the 1930’s when Brace’s grandfather farmed the land. Prior to 1975, Brace’s father used the site for pasturing of cows and horses, and Brace’s brother used the site for pasturing cows until 1976. Brace purchased the property from his father with the intent of continuing and improving his father’s established farming operation. It was Brace’s intention to integrate the various portions of the property into an overall operation for an effective and productive farming business. At the time Brace purchased the property containing the site from his father, the site was vegetated with areas of scrub brush, including red brush and briars. In 1977, Brace sought the advice and assistance of the Agricultural Stabilization and Conservation Service (“ASCS”) as part of his plan to develop an integrated farming operation on the property that includes the site. The ASCS is “an agency of the United States Department of Agriculture which is generally responsible for administering commodity production adjustment and certain conservation programs of the Department.” 7 C.F.R. § 12.2(a)(2) (1994). Brace’s father had previously worked with the ASCS to prepare a drainage plan relating to the site for the purpose of farming the entire property. At the time he purchased the property from his father, Brace obtained and utilized the soil and conservation plans that had been prepared for his father by the ASCS. The drainage system impacts the ability to produce crops on all parts of Brace’s property. The existing drainage system was in poor condition and not yet complete at the time of Brace’s acquisition. Brace began cleaning the system in 1976 in order to improve upon the existing system and make it effective for agricultural development. In the following years, Brace maintained and improved the drainage system pursuant to the plan recommended by the ASCS. From 1977 to 1985 the ASCS periodically visited the site and provided technical assistance and cost-sharing arrangements to Brace. As of 1977, the essential portions of Brace’s improvements to the existing drainage system were intact and operating. Brace’s work in improving upon the interconnected drainage system progressed continuously from 1977 to 1987, as time, funds and equipment were available. If the necessary funds had been available to him in 1977, Brace would have expedited his farming plans and completed the project at that time. As a result of Brace’s efforts, by the end of 1979 the site was dry, with the exception of times of excessive rainfall. Brace cleared, mulched, churned, levelled, and drained the formerly wooded and vegetated site from 1985 through 1987. In 1986 and 1987, Brace paid for excavation in the site and the burying of plastic tubing or “drainage tile” in an effort to drain the site. Throughout the 1980’s, Brace used appropriate equipment to remove unconsolidated soil, pebbles, silt, and growth which were impeding water flow. Farmers in the area typically engaged in such practices. As a result of Brace’s levelling, spreading, and tiling, Brace began to grow crops on the site in 1986 and 1987. Brace did not have a permit issued pursuant to Section 404 of the CWA authorizing his activities. The United States became aware of Brace’s activities in 1987. During 1987 and 1988, the United States issued three orders to Brace, directing him, inter alia, to refrain from further disturbing the site, so that it could naturally revegetate with indigenous plant species. After the issuance of these orders, Brace continued to mow vegetation on the site. In October of 1988, Brace received an administrative complaint in connection with his farming activities on the site. Brace requested a hearing to contest the complaint, believing that his activities were exempt from any and all permit requirements. Prior to the hearing, the complaint was dismissed. In the summer of 1988, Brace approached the ASCS .in order to gain the status of “commenced conversion from wetlands” prior to December 23, 1985 with respect to the site. The ASCS was authorized to make such a determination under the Food Security Act of 1985, 16 U.S.C. §§ 3801, et seq. This Act contains a provision, referred to as the “Swampbuster,” which denies certain Department of Agriculture benefits to farmers who produce an “agricultural commodity on converted wetland,” unless such conversion commenced before December 23, 1985. 16 U.S.C. §§ 3821, 3822 (1988 & Supp. V 1993). The ASCS granted the status to the site, finding that Brace’s on-going farming activities had commenced prior to December of 1985, which would enable Brace to complete conversion and produce an agricultural commodity without losing USDA benefits. Letter from Erie County ASCS Office to Robert Brace (9/21/88); App. at 172. However, the ASCS expressly noted that “[t]he granting of a commencement ... request does not remove other legal requirements that may be required under State or Federal water laws.” USDA Form; App. at 173. In April 1990, as a cautionary measure, Brace approached the Army Corps of Engineers (“COE”) in an effort to obtain an after-the-fact permit to conduct his farming activities on the site, despite his belief that the activities were exempt from the permit requirements of the CWA. The United States Environmental Protection Agency (“EPA”) requested that the COE not review an application from Brace for an after-the-fact permit. Brace was advised that because the matter was then in litigation, the government would not act on his request for a permit. Since the time of the cease and desist orders Brace has terminated farming activity on the site except for routinely mowing the vegetation. II. The district court exercised its jurisdiction pursuant to 33 U.S.C. § 1319(b) (1988) and 28 U.S.C. §§ 1331, 1345, 1355 (1988 & Supp. V 1993). Our jurisdiction rests on 28 U.S.C. § 1291 (1988). Presently, there are three issues before us. The first issue is whether the district court erred in determining that Brace’s discharges of dredged and fill material into the wetland were exempt from the permit requirement pursuant to Section 404(f)(1) of the CWA, 33 U.S.C. § 1344(f)(1). The second issue is whether the district court erred in determining that Brace’s discharges were not “recaptured” by the permit requirement under Section 404(f)(2) of the CWA, 33 U.S.C. § 1344(f)(2). We have plenary review over the question of whether the district court erroneously interpreted the meaning of the applicable statutes. Moody v. Sec. Pac. Business Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.1992); Manor Care, Inc. v. Yaskin, 950 F.2d 122, 124 (3d Cir.1991). To the extent that the court’s ruling on these issues was also premised on findings of fact, we review any such findings under the clearly erroneous standard. Zenith Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100, 108, 89 S.Ct. 1562, 1568, 23 L.Ed.2d 129 (1969); Sheet Metal Workers Int’l Ass’n Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991). The third issue is whether the district court erred in determining that Brace was not subject to liability for violations of administrative orders. Our review of questions of law such as this is plenary. Moody, 971 F.2d at 1063; Manor Care, 950 F.2d at 124. III. The Clean Water Act was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1988). Section 301(a) of the CWA prohibits the discharge of any pollutant into navigable waters of the United States, unless the discharge is authorized by a permit. 33 U.S.C. §§ 1311(a), 1362(12) (1988). We recognize that: The Act defines the operative terms of this prohibition broadly. The term “pollutants” includes fill material such as “dredged spoil, ... rock, sand, [and] cellar dirt,” 33 U.S.C. § 1362(6), and “navigable waters” means “the waters of the United States,” id. § 1362(7). In so defining the term “navigable waters,” Congress expressed a clear intent “to repudiate limits that had been placed on federal regulations by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of the term.” United States v. Pozsgai, 999 F.2d 719, 724 (3d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1052, 127 L.Ed.2d 373 (1994) (citations omitted). The district court found that Brace’s clearing, churning, mulching, level-ling, grading, and landclearing of the formerly wooded and vegetated site was a discharge of a dredged spoil, biological material, rock and/or sand, each of which fits the definition of pollutant. Brace, slip op. at 18. Section 404 of the CWA authorizes the Secretary of the Army, through the COE, to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (1988). See also 33 C.F.R. § 323.1 (1993). The permit program, as we recognized in Pozsgai, “is the central enforcement tool of the Clean Water Act- Unpermitted discharge is the archetypical Clean Water Act violation, and subjects the discharger to strict liability.” 999 F.2d at 724-25. The COE and EPA have issued regulations defining the term “waters of the United States” to include “wetlands,” among other bodies of water: (a) The term waters of the United States means (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; ... (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), ... wetlands, ... the use, degradation or destruction of which could effect interstate or foreign commerce ... (5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this section ... (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section. 38 C.F.R. § 328.3(a) (1993); 40 C.F.R. § 230.3(s) (1993) (emphasis in original). The district court found that the site constituted waters of the United States at the time of Brace’s activities. Brace, slip op. at 17. The term “wetlands” is defined as: those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 33 C.F.R. § 328.3(b); 40 C.F.R. § 230.3(t). The parties have stipulated that the site constituted wetlands at the time of Brace’s activities. Exemptions to the general requirement for a Section 404 permit are contained in Section 404(f) of the CWA. Under Section 404(f)(1), a permit is not required for: (1) the discharge of dredged or fill material “from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices,” 33 U.S.C. § 1344(f)(1)(A); and (2) the discharge of dredged or fill material “for the purpose of ... the maintenance of drainage ditches.” 33 U.S.C. § 1344(f)(1)(C). The COE and EPA have promulgated regulations which provide that the “normal farming activities” exemption is available only to discharge activities that are “part of an established (i.e., on-going) farming ... operation,” and expressly stipulate that the exemption is not available either: (1) for “[ajctivities which bring an area into farming ... use”; or (2) where “modifications to the hydrological regime are necessary to resume operations.” 33 C.F.R. § 323.4(a)(l)(ii) (1993); 40 C.F.R. § 232.3(e)(l)(ii)(A), (B) (1993). This provision further requires that, to be exempt from the permit requirement, such activities “must be in accordance with definitions in 33 C.F.R. § 323.4(a)(l)(iii).” 33 C.F.R. § 323.4(a)(l)(ii). The definitions in 33 C.F.R. § 323.4(a)(l)(iii) provide that “the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing.” 33 C.F.R. § 323.4(a)(l)(iii)(D); 40 C.F.R. § 232.3(d)(4). The definitions also define “minor drainage” as meaning “[tjhe discharge of dredged or fill material incidental to connecting upland drainage facilities to waters of the United States, adequate to effect the removal of excess soil moisture from upland croplands.” 33 C.F.R. § 323.4(a)(l)(iii)(C)(l)(i); 40 C.F.R. § 232.3(d)(3)(i)(A). This latter definition is modified by 33 C.F.R. § 323.4(a)(l)(iii)(C)(2) and 40 C.F.R. § 232.3(d)(3)(ii), which further provide that the term minor drainage “does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland ..., or conversion from one wetland use to another.” The COE has also promulgated definitions concerning the second exemption to the permit requirement, i.e. the exemption for the maintenance of drainage ditches. The definitions provide that the exemption from the permit requirement applies to “maintenance (but not construction) of drainage ditches.” 33 C.F.R. § 323.4(a)(3). Even where Section 404(f)(1) exempts a discharge from the permit requirement, the discharge may be “recaptured” by the permit requirement under Section 404(f)(2): Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). The regulation governing the “recapture” provision stipulates in part that “[a] conversion of a section 404 wetland to a non-wetland is a change in use of an area of waters of the United States,” 33 C.F.R. § 323.4(c), and states as an example, that “a permit will be required for the conversion of a cypress swamp to some other use ... when there is a discharge of dredged or fill material into waters of the United States in conjunction with construction of ... structures used to effect such conversion.” Id. Thus, to be exempt from the CWA permit requirement, a defendant has the burden of demonstrating that proposed activities both satisfy the requirements of Section 404(f)(1) and avoid the recapture provision of Section 404(f)(2). United States v. Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986). See also United States v. Cumberland Farms, 647 F.Supp. 1166, 1176 (D.Mass.1986) (“[E]ven if [defendant] could establish that it is exempt from the permit requirements under § 1344(f)(1), it must also demonstrate that its activities avoid ‘recapture’ under the provisions of 33 U.S.C. § 1344(f)(2).”), aff'd, 826 F.2d .1151 (1st Cir.1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 981 (1988). Read together, the two parts of Section 404(f) provide a narrow exemption for agricultural activities that have little or no adverse effect on the waters of the United States. Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 926 (5th Cir.1983). Congress intended this narrow exemption. As Senator Muskie, one of the primary sponsors of the CWA, explained: New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. 3 A Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Water Pollution Control Act, at 474 (1978). IV. The district court held that Brace’s activities on the thirty-acre wetland site were exempt from Section 404’s permit requirement “because they constitute: (a) normal farming activities; (b) upland soil and water conservation practices; and (c) maintenance of drainage ditches.” Brace, slip op. at 22. We find that the district court’s determination is erroneous as a matter of law. The district court’s conclusion that Brace’s discharges on the thirty-acre site constituted “normal farming activities” which are exempt from Section 404’s permit requirement cannot be reconciled with the statute, the applicable regulations, and case law governing the “normal farming activities” exemption. As we described above, Section 404(f) of the CWA provides exemptions to the general permit requirement, including the discharge of dredged or fill material without a permit in connection with “normal farming ... activities such as plowing, seeding, cultivating, minor drainage, harvesting ... or upland soil and water conservation practices.” 33 U.S.C. § 1344(f)(1)(A). In determining that Brace’s activities fell within this provision, the district court relied on facts that are irrelevant to the inquiry required by the applicable law. The district court appears to have based its conclusion on a casual observation that what Brace did was “normal” activity for a farmer in Erie County, rather than on the application of the regulatory construction accorded the statutory term “normal farming activities” by the agencies charged with the implementation of the statute. The applicable regulation provides that, to constitute “normal farming activity” within the meaning of the statute, the activity: must be part of an established (i.e., ongoing) farming ... operation and must be in accordance with the definitions in § 323.4(a)(l)(iii)_ Activities which bring an area into farming ... use are not part of an established operation. An operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations. 33 C.F.R. § 323.4(a)(l)(ii). Brace’s activities between 1985 and 1987 meet neither prong of this provision: they were neither part of an “established (i.e., on-going) farming operation,” nor were they conducted “in accordance with the definitions in § 323.4(a)(l)(iii).” A. Brace points out that in determining whether farming activities are established and continuing, the conduct must be analyzed by a contextual review of the total activities. Cumberland Farms, 647 F.Supp. at 1175. He argues that the district court correctly undertook a contextual analysis in its determination that the site was an integral part of an established and on-going farm operation, and Brace’s activities between 1985 and 1987 did not bring a new area into the operation. Brace, slip op. at 12. The district court based its conclusion on: (1) its determination that the site is an integral part of the drainage system previously installed in adjoining crop producing fields; (2) its finding that the installation of a drainage system at the site “is normal farming activity in order to make land suitable for farming,” because “[ejxten-sive underground drainage systems are typical and necessary aspects of farming in Erie County,” id. at 3; and (3) the ASCS determination that Brace had “commenced conversion” of the site from wetland to cropland prior to December 23, 1985. The district court’s reasoning and conclusion are improper. The district court misinterpreted the meaning of the “established farming operation” requirement. The district court believed it was appropriate to examine the relationship of the site in question to the rest of the land owned by the same property-owner in determining whether land was being brought into farming use. Brace maintains that it is arbitrary to delineate artificially a portion of the farm and without rational justification sever it from his overall operations. We cannot agree with this interpretation of the statute’s requirement. The regulations provide that, “[a]ctivities which bring an area into farming ... use are not part of an established operation.” 33 C.F.R. § 323.4(a)(l)(n); 40 C.F.R. § 232.3(e)(l)(ii)(B) (emphasis added). The regulations do not specify the precise area to which we should look in determining whether there is an established farming operation. There are no minimum limits placed on the “area” being brought into farming use. Thus, we read the regulations to provide that an exemption is available only to activities that are part of an “established farming operation” at the site. A proper “contextual review of its total activities” only requires us to analyze whether such activities are “established and continuing” on the thirty-acre wetland site itself. See Cumberland Farms, 647 F.Supp. at 1175 (referring to “the site,” rather than the property owner’s total land holdings). Our reading of the regulation recognizes the statute’s legislative history and is in accord with the strict construction of the permit exemptions afforded by other Courts of Appeals. See, e.g., Akers, 785 F.2d at 819, 823; United States v. Huebner, 752 F.2d 1235, 1240-41 (7th Cir.), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 50 (1985); Marsh, 715 F.2d at 925 n. 44. Brace himself testified that: (1) for the nine-year period prior to the discharges onto the site, from 1977 to 1986, his activities at the site included no pasturing or growing of any crops, but consisted entirely of efforts to drain the wetland; (2) the site was fully covered in 1983 with indigenous plants, but that all plants had been stripped from the site in 1987, subsequent to the discharge activities; and (3) the purpose of his 1985-1987 discharges was to drain the wetland and make it suitable for row cropping. The district court found that “[ajs a result o/Defendants’ levelling, spreading and tiling, Defendants began to grow crops on the site in 1986 and 1987.” Brace, slip op. at 9 (emphasis added). These facts do not justify the district court’s determination that Brace’s activities on the site were exempt from the permit requirements as “normal farming activities.” Indeed, the factual findings of the district court can only lead to the opposite conclusion. Brace converted a thirty-acre site that was not suitable for farming into a site that is suitable for farming, and thus “brought an area into farming use.” Even if Brace’s father’s pre-1975 use of the site for pasturing could be considered to have been a prior, “established farming operation” on the site, Brace’s drainage activities demonstrate that the court erred as a matter of law in finding the exemption from the permit requirement available for his subsequent activities. Under the regulations, a farming operation is not “ongoing” where “modifications to the hydrological regime are necessary to resume operations.” 33 C.F.R. § 323.4(a)(1)(h); 40 C.F.R. § 232.3(e)(l)(ii)(B). Here, Brace admitted that “modifications to the hydrological regime,” i.e., drainage of the site through excavating and burying four miles of plastic tubing for drainage, were necessary to grow crops on the site. Our determination is consistent with the holdings of numerous other courts that have found the “normal farming” exemption inapplicable because modifications were required to resume farming. See, e.g., Akers, 785 F.2d at 819-20 (“[Defendant] argued below that unless he were allowed to complete the work he had started, the effect of which is to drain the wetland, he would be unable to engage in the farming activities he had planned. By his own admission, his activities require substantial hydrological alteration to [the site], and run afoul of the regulations.”); Bayou Marcus Livestock & Agric. Co. v. EPA No. 88-30275, 20 Envtl.L.Rev. (Envtl.L.Inst.) 20445, 20446, 1989 WL 206151 (N.D.Fla. Nov. 3, 1989) (“Before plaintiffs could have effectively harvested the timber and begun farming, it was necessary to dredge, fill, construct roads and dig ditches.... [I]f an ongoing operation had been previously functioning, such changes in the landscape would have been unnecessary.”); United States v. Larkins, 657 F.Supp. 76, 85-86 n. 23 (W.D.Ky.1987) (“Activities cease to be established when the property on which they were once conducted ‘... has lain idle so long that modifications to the hydrological regime are necessary to resume operations.’ Reducing the reach of the [site] required modifications of the site’s hydrological regime. Consequently, even if the wetland had a history of farm use, that use was no longer established at the time [of defendant’s activities].” (emphasis by court) (citations omitted)), aff'd, 852 F.2d 189 (6th Cir.1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1131, 103 L.Ed.2d 193 (1989). Brace suggests that this line of cases is distinguishable from his circumstances because of, inter alia, the larger size of the farms and wetlands at issue in those cases, and the fact that one site was a habitat for an endangered species. We cannot agree. There is no provision in Section 404(f)(1) of the CWA or its implementing regulations under which either the size of a wetland or the effect of discharge activities on wildlife are factors relevant to determining whether particular discharge activities are exempt from the permit requirement. Although wetland protection in Section 404 serves the important function of protecting wildlife habitats, in addition to several other functions including flood and erosion control and water purification, see 33 C.F.R. § 320.4(b)(2), neither the statute nor the regulations condition the permit requirement on the existence of adverse impacts on wildlife or on the particular size of a wetland. Indeed, we have upheld determinations of both civil and criminal liability for the discharge of fill material onto a 14-acre wetland site, a substantially smaller site than Brace’s, where there was no claim of adverse impact on wildlife. United States v. Pozsgai, 999 F.2d 719 (3d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1052, 127 L.Ed.2d 373 (1994) (civil), and United States v. Pozsgai, 897 F.2d 524 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990) (criminal). In addition to the district court’s erroneous interpretation of the “established farming operation” requirement, the district court erred as a matter of law in finding that Brace’s installation of a drainage system at the site “is a normal farming activity in order to make land suitable for farming,” because “[e]xtensive underground drainage systems are typical and necessary aspects of farming in Erie County.” Brace, slip op. at 3. Brace argues that the court correctly considered the area-specific context in its fact finding inquiry. However, this factual determination is a legal conclusion, and is not merely a matter for factual findings. The question is not whether farmers in a particular county install extensive drainage systems. Rather, the proper question is whether the activities performed by Brace at this particular site, and at a time when the CWA applied, were within the meaning of the statutory term “normal farming activities” as defined by the regulations. Regardless of how “typical” or “necessary” such drainage systems may be in Erie County, Section 404 of the CWA requires a permit for “activities which bring an area into farming ... use,” as opposed to activities that are part of an “established farming operation.” Brace did not have an “established farming operation” on the site prior to his discharges, and brought the site into farming use by discharging pollutants into waters of the United States. Moreover, the district court erred in relying upon a determination from the ASCS in September of 1988 that Brace had “commenced conversion” of his property from wetland to cropland prior to December 23, 1985, as evidence of an “established farming operation” at the site. The USDA Swamp-buster Commenced and Third-Party Determinations form signed by Brace expressly states that “[t]he granting of a commencement ... does not remove other legal requirements that may be required under State or Federal water laws.” USDA Form; App. at 173. The purpose of the “commenced conversion” determination is solely to prevent the loss of USDA benefits. The ASCS determination is not a dispositive factor in our analysis. Moreover, to the extent that the ASCS determination has any relevance to our analysis of “normal farming activities,” it undermines such a conclusion. The very title of the determination — “commenced conversion” — indicates that Brace’s discharge activities were not part of an ongoing farming operation, but rather, were directed at converting the wetland to the farming operation of growing crops. Even if the ASCS determination had .stated that a conversion had been completed by December 23, 1985, the CWA permit requirement would not have been affected. Brace’s activities were unper-mitted and unauthorized when they occurred, and the “commenced conversion” determination provides no basis for an after-the-fact legitimization of those activities. B. As we explained above, the regulation governing the “normal farming activities” exemption has a second prong, under which drainage activities, in addition to being a part of an “established farming operation” as defined by the regulation, must be “in accordance with definitions in § 323.4(a)(l)(iii).” 33 C.F.R. § 323.4(a)(l)(ii). Brace’s activities failed to meet the requirements of this second prong in addition to not being a part of an ongoing, established farming operation. Brace’s undisputed activities: (1) excavating soil and discharging in connection with burying approximately four miles of plastic tubing for drainage; (2) levelling and clearing the formerly wooded and vegetated site; and (3) spreading dredged material, are all excluded from the activities allowed under 33 C.F.R. § 323.4(a)(l)(iii). Brace’s installation of four miles of tubing which drains the site is barred by the provision’s express prohibition of both: (1) “the construction of any ... structure which drains or otherwise significantly modifies ... a wetland or aquatic area constituting waters of the United States”; and (2) “drainage associated with the immediate or gradual conversion of a wetland to a non-wetland ..., or conversion from one wetland use to another.” 33 C.F.R. § 323.4(a)(l)(iii)(C)(2). See also 40 C.F.R. § 232.3(d)(3)(ii). Brace’s clearing of all vegetation from the wetland site, and his spreading of dredged materials onto the site, are barred by the provision’s express prohibition of both: (1) “the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dryland”; and (2) “the redistribution of surface materials by blading, grading, or other means to fill in wetland areas.” 33 C.F.R. § 323.4(a)(l)(iii)(D). See also 40 C.F.R. § 232.3(d)(4). Accordingly, by definition, Brace’s discharge activities cannot constitute “normal farming activities” under the applicable regulation. We are unpersuaded by Brace’s assertion that we need not reach the definitions of 33 C.F.R. § 323.4(a)(l)(iii) because there was no conversion from one wetland use to another. Brace bases his argument on the district court’s determination that Brace simply maintained and improved his drainage system, and continued, piece by piece, to farm land which, in one form or another, had always been used for crops or pasture. Brace asserts that spreading materials that he dredged from ditches on the site onto other portions of the site was an ordinary and normal maintenance procedure employed by local farmers. Under the CWA, a permit is not required for the discharge of dredged or fill material for the purpose of maintaining drainage ditches. 33 U.S.C. § 1344(f)(1)(C). Thus, Brace argues and the district court agreed that Brace’s activities constituted maintenance of drainage ditches, an activity clearly exempt from the permit requirements of the CWA. The exemption from the permit requirements under Section 404(f)(1)(C) for “maintenance of drainage ditches” applies to “any discharge of dredged or fill material that may result from ... the maintenance (but not construction) of drainage ditches.” 33 C.F.R. § 323.4(a)(3) (emphasis added). We find the district court erred as a matter of law in finding that Brace was simply maintaining rather than constructing the drainage ditches. Likewise, the conclusion of the district court that the activities of Brace do not require a permit because they constitute maintenance of drainage ditches, Brace, slip op. at 22, is not supported by the evidence. Brace caused the excavation of the site and the burying of several miles of plastic tubing to facilitate drainage. It is not realistic to describe what Brace was doing as “continuing maintenance.” Brace’s construction of a drainage system was expressly prohibited by the regulation absent a permit. See Huebner, 752 F.2d at 1242 (defendants’ cleaning and deepening existing ditches, excavating a new ditch, and discharging dredged materials required a permit when it brought an area of navigable waters into a use to which it was not previously subject). Moreover, any activity that could be described as maintenance of drainage ditches was accomplished, if at all, by dredging ditches at the site. Brace’s subsequent le-velling at the site and spreading of the dredged material were separate, independent activities that are not subject to an exemption from the permit requirement. This subsequent spreading of dredged materials onto other portions of the site served no purpose beyond converting the thirty-acre wetland site to an upland site that could accommodate the growing of crops; it did not “result” from the maintenance of drainage ditches. There is no statutory or regulatory provision under which the spreading of the dredged materials is permissible absent a permit. The district court erred as a matter of law in holding Brace’s activities permissible. V. As we discussed above, Brace has the burden of proving both that he qualifies under Section 404(f)(1) for the normal farming activities exemption, and that the permit requirement was not “recaptured” under Section 404(f)(2) of the CWA, 33 U.S.C. § 1344(f)(2). The “recapture” provision stipulates that: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). The applicable regulation provides that “[a] conversion of a section 404 wetland to a non-wetland is a change in use of an area of the waters of the United States.” 33 C.F.R. § 323.4(c). Initially, the district court incorrectly stated that the application of the recapture provision required the United States to establish the two elements: First, it must be established that Brace’s activities were conducted in order to bring the property into a use to which it was not previously subject. Second, if this element is established, it must then be established that Brace’s activities will impair the flow or circulation of navigable waters or will reduce the reach of such waters. Brace, slip op. at 21. The court’s articulation of the legal standard implies that the burden of demonstrating “recapture” is on the United States. This legal standard is erroneous. Since we have held that Brace’s drainage activities on the thirty-acre wetland site are not exempt from the CWA permit requirement under the “normal farming activities” or maintenance of drainage ditches exemptions, we need not reach the application of the recapture provision. We note, however, that the district court’s conclusion that the recapture provision doés not apply because “[t]he land is not being converted to a use to which it was not previously subject, nor has significant impairment to the reach or flow of waters been proven,” Brace, slip op. at 22, is incorrect as a matter of law. The evidence establishes that Brace’s activities drained the site to convert it from a wetland to a new, non-wetland use: the district court found that the site was inundated with water at various times in the past; the parties stipulated, and the court found, that the site constituted a wetland at the time of the discharges; Brace admitted that the purpose of installing the four miles of plastic tubing at the site in 1986 and 1987, and of clearing the vegetation from the site between 1985 and 1987, was to drain the site and make the ground ready for growing crops; and the court found that as a result of Brace’s levelling, spreading and tiling, he began to grow crops on the site in 1986 and 1987. Thus, Brace’s activities fall squarely within the statutory definition of “recapture.” VL The last issue that we must address is that of Brace’s penalty for violations of the permit requirements of Section 404 of the CWA and for his violations of the EPA administrative orders. Clearly, under CWA Section 309(d), Brace is subject to a civil penalty for his violation of the CWA permit requirements. 33 U.S.C. § 1319(d) (1988). Upon remand the district court must determine the appropriate amount of the penalty, based on the statutory factors delineated in Section 309(d). The more difficult issue is whether Brace is also subject to civil penalties for his noncompliance with the EPA administrative orders. The district court found both that: (1) the EPA’s administrative order had required Brace “to cease and desist all activities on the site,” Brace, slip op. at 14; and (2) “Defendants failed to totally comply with Administrative Orders issued to them.” Brace, slip op. at 14. However, the district court did not attach liability for violating the orders, based on its findings that “Defendants have not disturbed the soil on the site in any significant way since being served with the cease and desist orders, and in the view of this Court acted only out of sincere conviction, although undoubtedly misguided.” Id. Section 309(d) provides that “any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty.” 33 U.S.C. § 1319(d). Section 309(d) does not afford the district court discretion to grant an exemption from liability for violating the EPA administrative orders. See, e.g., Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1142 (11th Cir.1990) (the language of Section 309(d) “makes clear that once a violation has been established, some form of penalty is required.”) However, the record is not sufficiently clear for us to determine whether civil penalties are mandatory under the circumstances of this ease. We remand this issue to the district court for further review of Brace’s non-compliance with the EPA administrative orders. Thereafter, the district court must determine what, if any, civil penalties should be assessed against Brace for his violations of the EPA administrative orders. VII. CONCLUSION For the foregoing reasons, the order entered December 17, 1993, granting judgment in favor of the defendants, Robert Brace and Robert Brace Farms, Inc., will be reversed. This matter will be remanded to the district court to enter judgment in favor of the United States and to assess upon further proceedings appropriate penalties for defendants’ violations of the permit requirements, and to assess what, if any, penalties are appropriate for violations of the EPA administrative orders. SUR PETITION FOR REHEARING Jan. 9, 1995. Before: SLOVITER, Chief Judge; BECKER, STAPLETON, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges; and POLLAK , District Judge. The petition for rehearing filed by appel-lees having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. . See 33 U.S.C. §§ 1251(d) and 1344 for the implementation authority of the EPA and COE. . We recognize that the designation of the use of some very small sites will be effectively inseparable from the use of the surrounding land for established farming operations. Thus, we would not require that every square foot be used for farming in order for a site to meet the established operation exemption. In this case, however, it is clearly reasonable to require that all or substantially all of the thirty-acre site be part of an established operation. . Section 1319(d) provides in pertinent part: Any person who violates section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section ... 1344 of this title by a State, ... and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.

United States v. Huebner

BAUER, Circuit Judge. In 1978, pursuant to litigation commenced under the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. (1978), by the United States Army Corps of Engineers (Corps), defendants Roland G. Huebner, William Huebner and the Petenwell Potato Farms (Huebners), entered into a consent decree with the Corps regarding the maintenance of the wetlands on their property. In 1983, following a six-day hearing, the district court found the Huebners in contempt of the 1978 order and ordered them to comply with a restoration plan developed by the Corps. The Huebners appeal the lower court’s contempt order and restoration plan. We affirm the district court’s finding of contempt, reverse the district court’s restoration order and remand with instructions. I. FACTS In 1977, the Huebners, owners of a 4,000 acre vegetable farm, acquired “Bear Bluff Farms,” a 5,000 acre property in Jackson County, Wisconsin, the largest continuous area of wetlands in Wisconsin. The wetlands on Bear Bluff provide a habitat for wetland foliage and wildlife, and moderate the flow of water to surrounding wildlife refuges by absorbing excess stream flow in periods of high water and releasing water during the dry season. Since the turn of the century Bear Bluff has been used intermittently for a variety of agricultural purposes, including the production of dryland crops, such as corn and oats. For the twenty years preceding the Huebners’ ownership, however, only cranberries have been grown on the land. Cranberry cultivation requires a constant supply of water to protect against frost, to flood the berries for harvesting, to mulch them in the winter and to irrigate them in the growing season. When the Huebners acquired Bear Bluff, the farm included three cranberry beds, including a fifty-seven acre cranberry bed called the Staege bed on the southern part of the property. The Staege bed was served by three diked reservoirs: the Hunter’s Peak, Juleane and Unnamed Reservoirs. The record indicates that the Huebners intended to expand the cranberry operations of Bear Bluff Farms and to use a portion of the farm for growing vegetables and other upland crops. In 1977, the Huebners began to plow sections of the farm to clear out existing ditches and dig new ones. On September 2, 1977, the St. Paul District of the United States Army Corps of Engineers issued several cease and desist orders to the Huebners, alleging that their ditching activities constituted a permitless “discharge of dredged or fill material” into the Bear Bluff wetlands in violation of section 301 of the Federal Water Pollution Control Act, 33 U.S.C. § 1311 (1976), renamed the “Clean Water Act” in 1977. On November 10, 1977 the Corps filed a complaint in the district court seeking a permanent injunction and a financial penalty against the Huebners. In June, 1978 the parties settled the action by entering into a consent decree approved by District Judge James E. Doyle. Paragraphs 1 and 2 of the ten paragraph order are most significant for purposes of this appeal. Paragraph 1 permanently enjoins the Huebners “from any and all operations which constitute the discharge of dredged or fill material into waters of the United States, including wetlands within the ... described area of Jackson County, Wisconsin ... except as in accordance with a Department of Army permit and other lawful authority.” Paragraph 2 requires that the Huebners notify the Corps “in writing, twenty (20) days prior to the commencement of any discharge of dredged or fill material on any portion or portions of the land described in paragraph 1,” so that the Corps could “notify the defendants, in writing, of the need for the Department of Army permit as to the stated sites.” Paragraphs 4, 5 and 7 relate principally to the restoration and continued maintenance of wetlands in the Hunters Peak, Juleane and Unnamed Reservoirs. Paragraphs 4 and 5 describe certain restoration and maintenance activities to be performed by the Huebners on culverts, embankments and ditches, which activities would restore the ditches and dikes to the dimensions existing prior to the dredging that prompted the order. Paragraph 7 requires the Huebners to “maintain and operate the control structures and reservoirs referred to in paragraph 4 above in a safe manner, for maximum drainage control, and to protect the integrity of the dikes and the structures therein.” The Huebners complied with the immediate restoration provisions of the consent order. On November 16, 1982, however, the government moved for an order to show cause why the Huebners should not be held in contempt for violating the 1978 order. The government, through its affidavits, charged that dredged material had been placed on the sides of Beaver Creek and was sliding into the adjacent wetlands, that a portion of the wetland had been plowed and furrowed by a marsh plow, and that the dikes of the Hunter’s Peak, Juleane and Unnamed Reservoirs had been leveled and scraped by a bulldozer without notice to the Corps and without any Corps permit allowing such activity. The Huebners had planted barley in a plowed portion of the Hunter’s Peak, and stated that they intended to plant corn. The district court adopted the government’s “proposed finding of fact” as “preliminary findings of fact” on January 17, 1983, and held evidentiary hearings for six days, in April and May of 1983. On August 4, 1983 the district court entered an order holding the Huebners in civil contempt of the court’s 1978 consent order on the grounds that the government had proved by “clear and convincing evidence” that the Huebners had made permitless discharges of dredged and fill material into the Bear Bluff wetlands in violation of the 1978 order. The Huebners allege that they are not in contempt of the district court’s 1978 order because the activities in which they engaged in on their land did not require a Corps permit. They allege that the district court erred in its interpretation of the agricultural exemptions of the CWA, as relevant to the 1978 consent order, in determining when permits are required. The Huebners also argue that the district court denied them due process by improperly excluding certain evidence during the contempt hearing, and that the court abused its discretion in refusing to amend the 1983 restoration plan. II. THE CLEAN WATER ACT Congress enacted the CWA “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1978). The goal of the CWA is to eliminate by 1985 “the discharge of pollutants into navigable waters.” 33 U.S.C. § 1251(a)(1) (1978). The “navigable waters” subject to Corps authority under the Act include wetlands, which have been defined as those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. 33 C.F.R. § 323.2(a)(7)(c) (1983). The term “navigable waters” has been given “the broadest constitutional interpretation,” 1 Legislative History at 178 (Senate Consideration of the Conference Report on S. 2770, Oct. 4, 1972), in recognition of the fact that [t]he regulation of activities that cause water pollution ... must focus on all waters that together form the entire aquatic system. Water moves in hydro-logic cycles, and the pollution of [a] part of the aquatic system ... will affect the water quality of the other waters within that aquatic system. 42 Fed.Reg. 37,128 (1977). See also 2 Legislative History at 1495 (Report of Senate Committee on Public Works). The CWA defines “pollutant” to include “dredged soil ... rock, sand, [and] cellar dirt,” 33 U.S.C. § 1362(6) (1978), and establishes a permit system to control discharges of dredged material. Section 1344 of the Act authorizes the Secretary of the Army to act through the Corps to issue such permits under certain conditions and procedures. The permit process is “[t]he cornerstone of the ... scheme for cleaning up the nation’s waters.” United States Steel Corp. v. Train, 556 F.2d 822, 829 (7th Cir.1977). See also Mobil Oil Corp. v. United States E.P.A., 716 F.2d 1187, 1189 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984); Citizens for a Better Environment v. Environmental Protection Agency, 596 F.2d 720, 721-22 (7th Cir.1979); United States v. Byrd, 609 F.2d 1204, 1206 (7th Cir.1979); American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 444-45 (7th Cir.1975). The Huebners did not challenge the authority of the Corps to regulate parts of Bear Bluff Farms as wetlands in the district court, but argued that their activities were exempt from the CWA’s permit process under Section 1344(f)(1). The district court held that the phrase “discharge of dredged or fill material” in the 1978 consent order incorporated the legal meaning of those terms under the CWA and therefore the question of whether the Huebners’ permitless activities violated the terms of the 1978 consent decree hinged on the court’s interpretation of the scope of Section 1344(f)(l)’s exemptions. The district court held that “[i]t is clear that the amendments that created the subsection (f) exceptions on which defendants rely were not intended to exempt all farming operations from the permit requirements, but only those whose effect upon wetlands or other waters was so minimal as not to warrant federal review and supervision.” R. 118, Order at 17-18. The court then analyzed the defendants’ actions in light of the purposes of the Clean Water Act, the intent of Congress in enacting the farming exceptions, and the terms of the 1978 order. Our review of the legislative history confirms the conclusion reached by the lower court. Section 1344(f)(1) provides exemptions from the permit process for discharges into wetlands caused by agricultural activities, such as plowing and the maintenance of dikes, ponds, and farm roads. The exceptions of Section 1344(f)(1) are subject to section 1344(f)(2), however, which provides that discharges are not exempt from the permit process if they bring “an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced.” Our review of the legislative history of the agricultural exemptions convinces us that because of the significance of inland wetlands, which make up eighty-five percent of the nation’s wetlands, Congress intended that Section 1344(f)(1) exempt from the permit process only “narrowly defined activities ... that cause little or no adverse effects either individually or cumulatively [and which do not] convert more extensive areas of water into dry land or impede circulation or reduce the reach and size of the water body.” 3 Legislative History at 420 (statement of Rep. Harsha, member of the conference committee, during House debates). See also id. at 474. The Fifth Circuit also has held that § 1344(f)(1) was designed to be a “narrow exemption.” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n. 44 (5th Cir.1983). Recognizing that “there has been widespread concern that many activities that are normally considered routine would be prohibited or made extremely difficult because of the complex regulatory procedures,” 4 Legislative History 897 (statement of Sen. Randolph), Congress enacted in the 1977 amendments a delicate balance of exceptions that protected wetlands while permitting routine activities to go on unimpeded. The drainages exemption is very clearly intended to put to rest, once and for all, the fears that permits are required for draining poorly drained farm or forest land of which millions of acres exist. No permits are required for such drainage. Permits are required only where ditches or channels are dredged in a swamp, marsh, bog or other truly aquatic area. 4 Legislative History 1042 (statement of Sen. Muskie). We therefore affirm the district court’s narrow interpretation of the agricultural exemptions and its incorporation of the purpose of those exemptions into the finding of contempt against the Huebners for violation of the 1978 consent decree. III. FINDINGS AS TO SPECIFIC ACTIVITIES ON BEAR BLUFF FARMS In civil contempt proceedings for violations of a consent decree, plaintiffs must prove.the violations by clear and convincing evidence in the trial court. Squillacote v. Local 248, Meat & Allied Food Wkrs., 534 F.2d 735, 747 (7th Cir.1976). The court’s factual determinations are accorded great weight on appeal when they depend on credibility determinations based on the demeanor of witnesses at trial. Cf. NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir.1983). Moreover, the remedy chosen by the trial court in a contempt proceeding on a consent decree is “discretionary in character and is not to be reversed except for abuse of such discretion or unless clearly erroneous.” Walaschek & Associates, Inc. v. Crow, 733 F.2d 51, 53 (7th Cir.1984), quoting Jewel Tea Co. v. Kraus, 204 F.2d 549, 551 (7th Cir.1953). Our review of the lower court’s findings of fact and conclusions of law as to the particular challenged activities is guided therefore by these standards. A. Plowing the Reservoirs The lower court found that the Huebners used a marsh plow to plow and remove wetland vegetation from the three reservoirs at sites 10, 11 and 12, and leveled the dikes in these reservoirs. The court found that the Huebners plowed the reservoirs to decrease the capacity of the soil to store water in preparation for the immediate planting of barley and for the future planting of corn and other dryland crops. The court held that in doing so the Huebners failed “to protect the integrity of the dikes” and to guarantee “maximum drainage control” in direct violation of paragraph 7 of the 1978 consent decree. The Huebners do not deny these activities but argue that they were not required to notify the Corps or obtain a permit for the plowing of the reservoirs because the “nonfunctional and nonproductive” nature of the reservoirs required that they cease to be used as reservoirs. The Huebners claim that their activity will make the reservoirs “more effective land,” and argue on appeal that “the so-called reservoirs had been cropped for decades before the unsuccessful attempt to convert this land into reservoirs in 1956.” The Huebners stated purpose, however, is in direct opposition not only to the purposes of the Clean Water Act, but, more importantly, to the terms of the consent decree, which required a return to the status of the land as it had existed prior to the discharge activities which had initially prompted the 1978 order. We therefore affirm the court’s finding that the Huebners were in violation of the 1978 order when they plowed the reservoirs. B. Cleaning, Deepening and Digging Ditches In conjunction with the plowing of the reservoirs, the district court found that the Huebners had used backhoes to clean and deepen existing ditches at sites 1, 2 and 14 and used a dragline to excavate an approximately 400 foot long new ditch at site 3. The court found that the result of the deepening activities at sites 2 and 14 was to drain the reservoirs. The court also found that at sites 1, 2, 3 and 14 the Huebners had sidecast materials onto the wetlands, used bulldozers to spread the discharge over several acres, and formed the materials into farm roads which were broader than necessary according to best management practices. The Huebners argue that the evidence showed that their ditches were used solely for irrigation purposes, and therefore they were exempt from the permit procedure under Section 1344(f)(1)(C), which exempts discharges related to the “construction or maintenance of irrigation ditches.” The Huebners also argued that the water level in the ditches had been raised, indicating that the groundwater level surrounding the ditch was higher than it had been prior to the 1978 decree. The Huebners argued that the evidence of a higher groundwater level showed a compliance with the purposes of the 1978 order. The district court rejected the Huebners’ focus on ditch water level and looked instead to the results of Huebners’ dredging activity as it affected the surrounding wetlands. We think this interpretation of the purposes of the 1978 consent order was proper. We think the government succintly stated the fallacy of the Huebners’ argument at oral argument when counsel stated that “the Clean Water Act is not a Full Ditch Act:” the water level of the ditches is not the key to compliance with the purposes of the 1978 order. The district court correctly reasoned that even if the ditches at issue were irrigation ditches, the restrictions of Section 1344(f)(2) still applied. Under Section 1344(f)(2), the discharge of dredged materials from the construction of irrigation ditches requires a permit where such discharges “bring an area of navigable waters into a use to which it was not previously subject and where the flow of the waters is impaired and their reach reduced.” The district court reasoned that the sidecasting and spreading activity reduced the reach of the wetlands surrounding the ditches at issue. The court therefore concluded that the defendants had violated the 1978 order by not giving notice of such activity and by not obtaining a permit. We affirm the court’s conclusion that the Huebners’ ditching activity, whether it involved irrigation or drainage ditches, ran afoul of the provisions of Section 1344(f)(2). The Huebners’ activity constituted a discharge of dredged material onto a wetland, thereby disturbing the reach of its waters. Such activity required notice and application for a permit under the 1978 consent decree. C. Maintenance of Farm Roads The district court found that at sites 1, 5, and 6 the Huebners bulldozed excess road fill into adjacent wetlands and maintained the roads at a greater width than necessary. The Huebners argued that discharges made in connection with the maintenance of farm roads are exempt from permit requirements under Section 1344(f)(1)(E). The court concluded, however, that the Huebners’ bulldozing activities violated Section 1344(f)(l)(E)’s requirement that the “best management practices” be used in the maintenance of farm roads, and reasoned therefore that the Huebners should have given notice and obtained a permit if necessary before widening the roads. We find nothing clearly erroneous in the court’s conclusion and affirm the lower court’s ruling that Section 1344(f)(1)(E) exemptions for. discharges made in the construction and maintenance of farm roads does not apply to the Huebners’ activities. The Huebners’ failure to give notice and apply for a permit for these activities was a violation of the 1978 order. D. Expansion of Cranberry Beds The court below held that the Huebners’ expansion of the Staege cranberry beds at site 9 without a permit violated both paragraphs 1 and 2 of the consent order because it found that the conversion of the adjacent wetlands into cranberry beds was a “use” of the wetlands to which they had not been previously subject, therefore requiring a permit under Section 1344(f)(2). 33 C.F.R. § 323.4(a)(1)(h) provides: [a]n operation ceases to be established when the area on which it is conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations. Relying on this definition, the district court found that since the Huebners had had to drain the surrounding area in order to expand the bed, this conversion brought it within the terms of the regulation. We affirm the court’s ruling. E. Scraping Activity Finally, the district court found that the defendants used a bulldozer to move large mounds of dirt and level a 10 to 12 acre area at site 13 in violation of paragraphs 1 and 2, which prohibit discharges without a permit. The court reasoned that the scraping of materials from a wetland constitutes a discharge, because wetlands are defined by the presence of aquatic vegetation. See 33 C.F.R. § 323.2(a)(7)(c) (1983). Moreover, the regulations also provide that Section 1344(f)(l)’s exemption for plowing “does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any of area of the waters of the United States to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing.” 33 C.F.R. § 323.4(D) (1983). See also Avoyelles Sportsmen’s League v. Alexander, 473 F.Supp. 525, 533 (W.D.La.1979), 715 F.2d 897 (5th Cir.1983). We find nothing erroneous in the court’s conclusion, and affirm the court’s ruling that the Huebners violated the 1978 order by not giving notice and applying for a permit for this scraping activity. IV. DUE PROCESS The Huebners argue on appeal that they were denied due process by the district court in that the court excluded evidence on the prior interpretation of Section 1344’s agricultural exemption, on the meaning of the phrase “maximum drainage control” used in paragraph 7 of the 1978 order, on their estoppel and selective enforcement claims, and on assorted other matters. Because we find little merit in the Huebners’ due process arguments, wé treat these matters summarily here. A potential contemnor in a civil contempt proceeding must be afforded a “meaningful opportunity to present a defense.” Commodity Futures Trading Comm’n v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir.1981). In this case the Huebners received that opportunity when the district court afforded them six full days of a trial-type hearing on the contempt charge, at which the Huebners were represented by counsel, presented testimony and documentary evidence totaling over a hundred pages, and cross-examined the government’s witnesses. Moreover, the record indicates that the Huebners were permitted to introduce documents involving “official Corps policy as opposed to an interpretation merely by individual Corps officials,” R. 108, at the remedy stage of the proceedings and that they, through their prior attorney, had agreed to these procedural ground rules prior to the hearing. The court below also properly excluded evidence on the “intent and purpose” of the phrase “maximum drainage control.” The scope of a consent decree must be interpreted within its four corners and not with reference to the specific “purposes” of the parties involved. Commodity Futures, 655 F.2d at 782. In the absence of genuine ambiguity of meaning, no evidence beyond the plain meaning of the terms themselves was required. We find nothing clearly erroneous in the district court’s interpretation of “maximum drainage control” as meaning that the Huebners guaranteed the protection of the integrity of wetlands by agreeing not to drain off the water. Cf. United States v. Greyhound Corporation, 508 F.2d 529 (7th Cir.1974) (“restore practices and traffic patterns” held not ambiguous). The district court therefore properly rejected the Huebners’ contention that the phrase referred only to the seasonal moderation of the flow of water from the reservoirs by the raising and lowering of the dikes. The Huebners’ estoppel claim is supported neither by the facts, which indicate that they were permitted to present evidence on the estoppel claim at the hearings on the restoration plan, nor by their legal argument. The Supreme Court recently stated that “the Government may not be estopped on the same terms as any other litigant,” reasoning that “those who deal with the Government are expected to know the law and may not rely on the conduct of government agents contrary to law.” Heckler v. Community Health Services of Crawford County, — U.S. —, 104 S.Ct. 2218, 2224, 2226, 81 L.Ed.2d 42 (1984). See also Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981). In Heckler the court held that before estoppel will apply against the government in its effort to enforce the law, the alleged estopping statements must be in writing and must be made by officials at a policy-making level. Heckler, 104 S.Ct. at 2227. See also City of Alexandria v. United States, 737 F.2d 1022, 1028 (Fed. Cir.1984). The court below found that while there had been extensive correspondence between the defendants and the Corps, none of this correspondence contained misleading representations as to the permissibility of the Huebners’ conduct which was found in violation of the consent decree. Furthermore, the court credited the affidavit of Corps personnel and found that although some oral statements may have been made indicating that certain activity did not require a permit, the Huebners continued to plow even after being subsequently informed that such plowing did require a permit. The record in this case clearly does not establish a case of estoppel against the government under the principles of Heckler and Schweiker. We find nothing erroneous in the court’s rejection of the Huebners’ estoppel claim. See also Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir.1982). V. RESTORATION PLAN A lower court’s remedy for civil contempt is reviewable only under the limited “abuse of discretion” standard. Sportmart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313 (7th Cir.1979). The court below exercised its discretion in ordering particular restoration activities to be performed by the Huebners after considering whether the plan: (1) is achievable as a practical matter; (2) confers maximum environmental benefits; and (3) bears an equitable relationship to the degree and kind of wrong. R. 137, Order at 1. See United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1301 (5th Cir.1976). Upon review we find one portion of the district court’s order to have been an abuse of discretion. The majority of the court’s order, however, was within the court’s discretion. The district court’s remedial order requiring the Huebners to maintain certain water levels and to conduct other restoration activities withstands our review under the abuse of discretion standard. The record presents sufficient evidence to support the practicability of the maintenance of specified water levels at the reservoirs and other locations. The district court relied heavily on assessments of the credibility of the experts who testified as to the practicability of the water level aspect of the plan, noting that the achievability of such levels was “not a matter of common sense.” R. 137 at 4. We must accord great weight to lower courts’ factual determinations when they depend on the assessment of a witness’ credibility, cf. NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir.1983), and thus we affirm that portion of the district court’s order. The Huebners complain bitterly about the ordered destruction of their permitless ten-acre expansion of the Staege cranberry beds, alleging that the beds are worth $400,000 and that their destruction is neither “cost-effective nor environmentally warranted.” We agree with the Huebners and find the district court’s order to destroy the ten acre bed to have been an abuse of discretion. The district court found that the Huebners’ cranberry bed expansion “would not achieve maximum environmental benefits for the land at issue,” and that, given the nature of the Huebners’ repeated violations, the destruction of this bed bore an equitable relationship to the harm to the land caused by the Huebners. Expert testimony in the record indicates however, that cranberry beds are compatible with wetlands, although they do not perform the same water filtration and storage functions as an undisturbed wetland. The district court also noted that the Huebners might have been able to expand the Staege bed had they applied for an expansion permit in the first instance. R. 137 at 8. Moreover, evidence in the record reveals that some representatives of the Corps were cognizant of the Huebners’ expansion of the cranberry beds. While this Corps conduct was insufficient to meet the exacting requirements necessary for the government to be estopped from seeking a contempt citation against the Huebners, it should have been a factor to be given considerable weight by the trial court in fashioning a restoration order. Given this evidence, we think that it was an abuse of discretion for the district court to find that the destruction of the cranberry expansion bed bore an equitable relationship to the degree and kind of wrong committed by the Huebners. The Huebners did not follow the rules of the consent decree, admittedly, but it is a draconian exercise of judicial discretion to order undone a ten-acre expansion of cranberry beds which it took the Huebners several years to develop and which beds are not inherently incompatible with the surrounding wetlands. Therefore, we reverse the district court’s remedial order and remand with instructions to strike that portion of the order decreeing the destruction of the ten-acre cranberry bed. Y. CONCLUSION It must be emphasized that any perceived severity in the findings and the remedy of the district court which we affirm in part and reverse in part here were brought on the Huebners by their own failure to comply to the terms of the 1978 consent order into which they had voluntarily entered. While the Huebners and amicus, the Wisconsin Cranberry Growers Association, voice concern over the ability of cranberry farming to continue in Wisconsin should we affirm the district court’s orders, we decline to be persuaded by these highly speculative prophecies of doom. The Huebners may continue to farm their land. The district court recognized in ordering the restoration plan that the Huebners may still plant corn on parts of their property. R. 137 at 3. The Huebners may continue to farm cranberries or other crops, as long as they comply with the terms of the 1978 order which requires notice and application for permits. Other cranberry farmers or owners of wetlands property are also not prohibited from making a productive use of their property; proper compliance with the permit process is all that is required under the Clean Water Act to ensure that the use of the nation’s wetlands proceeds with care. In conclusion then, the district court’s finding of contempt is affirmed and its remedial restoration order is reversed and remanded with instructions to the district court to strike that portion of the order ordering the destruction of the ten-acre cranberry bed. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . The Wisconsin wetlands are characterized by a layer of sphagnum moss overlaying a varying depth of Dawson peat and Palms muck which rest on gray silíceas sand. Generally the area is comprised of large exposures of sedge meadows, interspersed with shrub swamp, occasional upland areas and bogs. The area is generally vegetated with black spruce and heath species. Beggar-tick, smartweeds and crabgrass grow near the reservoirs, while coontail, pondweed and grass grow in the ditches. Sandhill cranes, sharptailed grouse, Canadian geese, and raptors, such as marsh hawks, roughlegged hawks and short-eared owls, feed and nest in the wetlands. White tailed deer and other furbearing mammals also use the wetlands for- fawning and browsing. Schools of bullheads travel the ditches. R. 34, 35 & 49. . The Amicus Curiae brief of the Wisconsin Cranberry Growers Association indicates that Wisconsin leads the nation in the production of cranberries, which grow well in the inland wetlands of that state. Of the 110,000 wetlands acres owned by Wisconsin cranberry farmers, only 6% of the total acreage is developed into beds where cranberry plants are grown. The remaining 94% of acreage contains each cranberry bog’s water control system through which water is supplied to the beds by means of reservoirs, dikes, dams, ditches, canals, bulkheads, pumps, and sprinklers. . See S.Rep. 1236, 92nd Cong.2d Sess. 99 (1972), U.S.Code Cong. & Admin.News 1972, p. 3668, reprinted in Environmental Policy Division of the Congressional Reference Service, 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 at 282 (Comm. Print 1973) (hereinafter "Legislative History"). In 1977, Congress approved the shortened "Clean Water Act” title. H.Rep. No. 830, 95th Cong. 1st Sess. 1 (1977), U.S.Code Cong. & Admin.News 1977, p. 4326, reprinted in 3 Legislative History, at 185. . Paragraph 6 requires that the mandates of Paragraph 4 be completed by July 15, 1978. Paragraph 3 imposes a one thousand dollar fine on the Huebners. Paragraphs 8, 9 and 10 order the Huebners not to apply for any after the fact permits, to afford Corps personnel access to their premises and to bear their own costs in the case. . The Huebners stated that they needed an immediate cash crop to pay for the equipment costs of their dredge and fill activities. R. 51. Cranberries take several years to become fully productive. . Under this definition, "wetlands" have been held to include artificially created canals, Weiszmann v. District Engineer, 526 F.2d 1302 (5th Cir.1976); normally dry arroyos, United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Ariz.1975); and mangrove wetlands, P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.D.C.1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). . This delegation of authority to the Corps recognizes the Army Corps of Engineers’ historic role in preserving the navigability of the waterways of the United States. See generally Caplin, Is Congress Protecting our Water? The Controversy Over Section 404, Federal Water Pollution Control Act Amendments of 1972, 31 U.Miami L.Rev. 445, 448 (1977); Ablard & O’Neill, Wetland Protection and Section 404 of the Federal Water Pollution Control Act Amendments of 1972: A Corps of Engineers Renaissance, 1 Vt.L. Rev. 51, 54-58 (1976). . Section 1344(f)(1) provides exemptions for discharges: (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices: (B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, rip-rap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures; (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; [and] ... (E) for the purpose of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized. . Congress recognized that the protection of the waters of the United States required an “organic" concept of the national aquatic system and attempted to enact in the Clean Water Act a permit system with “no gaps” in its protective measures. 4 Legislative History 907 (statement of Sen. Hart) (excerpts from debate on the Bent-sen Amendment); id. at 897 (statement of Sen. Randolph during Senate Debate on S.1952, August 4, 1977). Congress purposefully included nonnavigable inland wetlands in the definition of navigable waters because of their importance in the chain of travel of toxic pollutants. 4 Legislative History 928 (statement Sen. Muskie). "Routine farming operations release substantial quantities of contaminants including sediment, salt, nutrients, pesticides, organic materials and pathogens into our waterways. It has been estimated, for instance, by the U.S. Soil Conservation Service, that cropland is responsible for 50 percent of the total sediment entering inland waterways.” 4 Legislative History at 1062 (statement of Sen. Muskie). President Carter estimated that inland wetlands were worth "$50,000 per acre," but noted that "our economic system does not transfer this wealth to individual owners. Therefore, wetlands will continue to be destroyed until the government takes steps to protect them." Id. at 1251 (statement of President Jimmy Carter). Other proponents of the amendment noted that wetlands were being destroyed at the rate of 300,000 acres a year. 4 Legislative History 882 (statement of Sen. Stafford during Senate Debate on S. 1952, August 4, 1977). The need for land for residential purposes has prompted the conversion of many wetlands. 31 U.Miami L.Rev. 445, 491 (1977). . Answering Senator Dole’s question as to whether a permit would be necessary if one or two farmers got together and dug small ditches in order to drain a low lying area to improve the production of crops, Senator Muskie responded that: [T]he Corps definition requires a prevalence of aquatic vegetation and is intended to describe only the true swamps and marshes that are part of the aquatic ecosystem. The type of drainage [described by Senator Dole] could be performed without discharging dredged or fill material in water or would occur in areas that are not true marshes or swamps intended to be protected by section 404. 4 Legislative History 1042-43. . While the record is clear that estoppel does not apply in this case, we take this opportunity to caution Corps personnel to be clear in their dealings with citizens pursuant to carrying out their duties under the Clean Water Act. The private owners of wetlands are rarely lawyers, and Corps personnel should therefore assist these citizens in complying with the law by being simple, direct and uncontradictory in their communications.

Joseph G. Moretti, Inc. v. Hoffman

DYER, Circuit Judge: In this case, which was consolidated with United States v. Joseph G. Moretti, Inc. and Joseph G. Moretti, Jr., 5 Cir. 1976, 526 F.2d 1306 (Moretti II) this day decided, Moretti, Inc. appeals from a judgment dismissing its complaint for review of the administrative action of the Chief of the Corps of Engineers denying its application for an after-the-fact dredging and fill permit. We affirm. The factual background of this litigation is detailed in United States v. Joseph G. Moretti, Inc., 5 Cir. 1973, 478 F.2d 418 (Moretti I) and in Moretti II, infra. Suffice it to say that here Moretti, Inc. asserts that the processing of the after-the-fact permit by the Corps of Engineers was a sham because in the report recommending denial of the application, documents favorable to Moretti, Inc. were omitted; it received unequal treatment with other applicants; the denial was founded on a punitive motivation; and there was no substantial evidence to support the decision. Additionally Moretti, Inc. claims that although requested to do so, the Secretary of the Army refused to review the recommendation to deny the permit. Finally, it contends that the district court prejudicially curtailed its right to discovery. The district court concluded that the Secretary was not required to review applications for dredge and fill permits because ultimate authority for the applications is vested in the Chief of the Corps of Engineers. The court also found that the denial of the after-the-fact application was neither arbitrary nor capricious. We agree. There is no merit to Moretti, Inc.’s contention that the Secretary of the Army must review the denial of applications for dredge and fill permits and cannot delegate his discretionary authority to the Chief of the Corps of Engineers. He “may assign, detail, and prescribe the duties of members of the Army . . . ” 10 U.S.C.A. § 3012. Acting under this statutory prerogative, the Secretary authorized “the Chief of Engineers and his authorized representatives to issue or deny permits for construction or other work affecting navigable waters of the United States.” 33 C.F.R. § 209.120 App.D. p. 340. This delegation of discretionary authority by the Secretary is well within his statutory power. See United States v. Nixon, 1974, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039; Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. We are equally unimpressed with Moretti, Inc.’s argument that his discovery was curtailed. In Gables by the Sea, Inc. v. Lee, S.D.Fla.1973, 365 F.Supp. 826, aff’d per curiam, 5 Cir. 1974, 498 F.2d 1340, the plaintiff sought to conduct extensive discovery proceedings to show that the Corps improperly denied his application for a dredge and. fill permit. The discovery was denied on the basis that the action was a challenge, pursuant to the Administrative Procedure Act, to a final agency decision which must be reviewed only on the administrative record. “Information extraneous to the record should not be considered in the review procedure. If the agency action is found to be improper, the matter should be remanded to the agency; it would be improper to conduct de novo proceedings in the form of a trial by the district court to consider extra-record information.” 365 F.Supp. at 830. Nor need we tarry long to consider Moretti, Inc.’s lack of substantial evidence contention. “The appropriate standard for review was whether the . . . adjudication was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ as specified in 5 U.S.C. § 706(2)(A). In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 1973, 411 U.S. 138 at 142, 93 S.Ct. 1241 at 1244, 36 L.Ed.2d 106. We turn now briefly to the alleged omissions from the record denouneed by Moretti, Inc., as supporting its assertion of sham proceedings. First, the statement made by the District Counsel, after the mandate in Moretti I, that the permit should be denied, is of no legal or factual significance because District Counsel has no decision making authority with respect to the issuing or denial of permits. Moreover the District Engineer who decided the matter was unaware of the memorandum of the District Counsel. Thus there was no necessity to attach the memorandum to the report transmitted for review by the Director of Civil Works. With respect to the 1971 report of the Resident Engineer recommending that the permit be granted, its preparation was accomplished prior to the receipt of the views expressed by other government agencies and the public. Moreover, it was based on an inaccurate application initially submitted by Moretti, Inc. Its dubious relevancy made it appropriate to exclude it from the report transmitted to Washington. Finally, Moretti, Inc.’s complaint that it received unequal treatment with other applicants is unfounded. The Corps has denied many applications to dredge and fill by others and, in fact, granted none in 1974. In any event, as the Supreme Court said in a parallel situation, “[t]he mild measures to others and the apparently unannounced change of policy are considerations appropriate for the Commission in determining whether its action in this case is too drastic, but we cannot say that the Commission is bound by anything that appears before us to deal with all cases at all times as it has dealt with some that seem comparable.” Federal Communications Commission v. WOKO, Inc., 1946, 329 U.S. 223, 228, 67 S.Ct. 213, 215, 91 L.Ed. 204. See also Couch v. Udall, 10 Cir. 1968, 404 F.2d 97; 2 K. Davis, Administrative Law Treatise, § 17.07 at 528 (1958). We are convinced that there was a rational basis for the denial of the permit. Further development of the record, after remand, by the solicitation and consideration of the views of other governmental agencies and the public, particularly because of the increasing awareness of environmental and ecological conditions was entirely proper. We are unable to find fault with the Corps’ processing of Moretti, Inc.’s after-the-fact application: It was consistent with the applicable regulations, 33 C.F.R. § 209.120, and with the three major pieces of legislation which set policy in this area, the National Environmental Policy Act of 1969, 42 U.S.C. § 4331-4347, the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. § 661-666c, and the Rivers and Harbors Appropriation Act of 1899 [33 U.S.C.A. § 401-426]. The Corps properly considered environmental factors in making its decision. Zabel v. Tabb [5 Cir. 1970, 430 F.2d 199]. It properly consulted other agencies in making its decision, United States v. Moretti, 5th Cir. 1973, 478 F.2d 418. See also Bankers Life and Casualty Company v. Village of North Palm Beach, 469 F.2d 994 (5 Cir. 1972). Di Vosta Rentals, Inc. v. Lee, 5 Cir. 1973, 488 F.2d 674, 681. Affirmed.

Southern Pines Associates v. United States

ERVIN, Chief Judge: Southern Pines Associates (“Southern Pines”) and VICO Construction Inc. (“VICO”) appeal a district court order dismissing their complaint and petition for a temporary restraining order for lack of jurisdiction. For the reasons stated below, we affirm the district court order. I. Southern Pines is a Virginia limited partnership which owns 293.41 acres of land located in Chesapeake, Virginia. VICO has a contract with Southern Pines and has been involved in clearing and building upon 40 acres of the property. On May 23,1989, the Environmental Protection Agency (“EPA”) issued a “Findings of Violation and Order for Compliance” to Southern Pines, informing the company that it had violated section 301(a) of the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. §§ 1251 et seq., by discharging fill material into wetlands without a permit. The order instructed Southern Pines to (1) “cease and desist all filling activities in the wetlands” at the site; (2) “[cjontact EPA within 5 working days” to discuss restoration of-the areas; (3) implement a plan for restoration after EPA approval; and (4) submit written notice of intent to comply with the order. In a cover letter accompanying the order, EPA asked Southern Pines to provide information about the site for it to review in order to make a “final determination of the boundaries of the wetlands that fall under the jurisdiction of the Clean Water Act.” Upon receiving EPA’s order, Southern Pines and VICO discontinued all work except logging which does not require a permit. Southern Pines contacted EPA and scheduled a meeting in an effort to resolve the matter. However, the company later canceled the meeting and denied EPA access to the site. On July 19, 1989, Southern Pines and VICO filed a complaint and a petition for a temporary restraining order predicating jurisdiction on the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and federal question jurisdiction pursuant to 28 U.S.C. § 1331. They alleged that EPA’s assertion of jurisdiction over the property created an actual controversy within the meaning of the Declaratory Judgment Act and argued that EPA lacks jurisdiction over the site because the wetlands on the property are not adjacent to any body of water. The district court dismissed the case for lack of subject matter jurisdiction. II. Southern Pines and VICO are asking this court (as they did the district court) to make a threshold determination of whether EPA has jurisdiction over the property. They argue that jurisdiction is proper under Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), a case in which drug manufacturers challenged regulations promulgated by the Commissioner of Food and Drugs. The Supreme Court held that judicial review was proper in Abbott because the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq., did not preclude review, and because the controversy was ripe for judicial resolution. However, the first question addressed by the Supreme Court in Abbott was whether “Congress by the Federal Food, Drug, and Cosmetic Act intended to forbid pre-enforcement review” of the regulation at issue in that case. The Court found that the statutory scheme did not preclude the action. The case before us today is distinguishable from Abbott because the statutory structure and history of the CWA provides clear and convincing evidence that Congress intended to exclude this type of action. We agree with the Seventh Circuit which recently held in Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990), that Congress “has impliedly precluded judicial review of a compliance order except in an enforcement proceeding.” In determining whether a statute precludes judicial review, we look not only to its language, but also to “the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Institute, 467 U.S. 340, 345, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984) (citations omitted); see also United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The language, structure, objectives, and history of the CWA, persuade us that Congress intended to preclude judicial review. The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. To achieve this goal, the Act prohibits any discharge of dredge or fill materials into waters of the United States unless authorized by a permit issued by the Corps of Engineers pursuant to section 404 of the Act. 33 U.S.C. § 1311(a); 33 U.S.C. § 1344(f)(2). Congress provided EPA with a choice of procedures for enforcing the Act. Section 309(a)(3) of the Act provides that when, on the basis of available information, the Administrator of EPA identifies a person in violation of the Act, the Administrator shall “either issue an order requiring such person to comply with [the Act], or he shall bring a civil action in accordance with subsection (b) of this section.” 33 U.S.C. § 1319(a)(3). In 1987, Congress added section 309(g) to the Act which provides that EPA may also assess administrative penalties against those who violate the Act or a permit issued under the Act. 33 U.S.C. § 1319(g). When EPA proceeds under section 309(g), the violator is entitled to a hearing before the agency, and the public is provided with an opportunity to comment. 33 U.S.C. § 1319(g)(2). Orders assessing administrative penalties are subject to judicial review. 33 U.S.C. § 1319(g)(8). In this case, EPA issued a compliance order. A compliance order is a document served on the violator, setting forth the nature of the violation and specifying a time for compliance with the Act. 33 U.S.C. § 1319(a)(5)(A). If a violator fails to abide by that order, EPA may seek to enforce the order by bringing a suit in federal district court under section 309(b) of the Act, 33 U.S.C. § 1319(b). However, EPA need not issue a compliance order before bringing an action. The penalties for violating either the Act or a compliance order are the same. The court may issue an injunction to require compliance, and it may impose civil penalties of up to $25,000 per day for each violation of the Act, a permit, or a compliance order. 33 U.S.C. § 1319(d). The violator is subject to the same injunction and penalties whether or not EPA has issued a compliance order. The CWA is not the only environmental statute which allows EPA to issue pre-en-forcement administrative orders. Both the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq., and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq., also provide for pre-enforcement agency action. The CAA, like the CWA, provides that EPA may issue a compliance order before bringing suit. Based upon the legislative history of the CAA, courts have found that Congress intended to preclude judicial review of compliance orders issued under the CAA. See Union Electric Co. v. EPA, 593 F.2d 299, 304 (8th Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 76, 62 L.Ed.2d 50 (1979); Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir.1977). CERCLA allows the EPA to order that a site be cleaned up prior to bringing suit. 42 U.S.C. §§ 9604, 9606, 9607. Prior to 1986 courts held that pre-enforcement remedial actions taken by the EPA under CERCLA were not subject to judicial review because litigation would interfere with CERCLA’s policy of prompt agency response. See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 315 (2d Cir.1986); Wheaton Industries v. EPA, 781 F.2d 354, 356-57 (3d Cir.1986); United States v. Outboard Marine Corp., 789 F.2d 497, 505-06 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986); Barnes v. United States District Court, 800 F.2d 822 (9th Cir.1986); J.V. Peters & Co. v. EPA, 767 F.2d 263, 264-65 (6th Cir.1985). In 1986 Congress added a provision to CERC-LA which specifically precludes federal jurisdiction over pre-enforcement remedial action. 42 U.S.C. § 9613(h). The structure of these environmental statutes indicates that Congress intended to allow EPA to act to address environmental problems quickly and without becoming immediately entangled in litigation. The CWA is not only similar in structure to the CAA and CERCLA, but its enforcement provisions were modeled after the enforcement provisions of the CAA. See S.Rep. No. 92-414, 92d Cong., 1st Sess. 63 (1971), reprinted in, 1972 U.S.Code Cong. & Admin.News pp. 3668, 3730. Considering this legislative history, the structure of these statutes, the objectives of the CWA, and the nature of the administrative action involved, we are persuaded that Congress meant to preclude judicial review of compliance orders under the CWA just as it meant to preclude pre-enforcement review under the CAA and CERCLA. III. Southern Pines and VICO argue that this case does not involve pre-enforcement review because the compliance order is an “enforcement procedure.” They also claim that this case should be distinguished from Hoffman because they are not merely contesting the extent of EPA’s jurisdiction but are claiming that EPA totally lacks jurisdiction. Southern Pines’ action seeks pre-enforcement review because EPA has not yet sought penalties for any violation of the Act or its order. The cases discussing pre-enforcement review under the CAA and CERCLA concern action taken prior to the initiation of judicial proceedings. See, e.g., Lloyd A. Fry Roofing Co., 554 F.2d 885. We are also unpersuaded by Southern Pines’ and VICO’s attempt to distinguish this case from Hoffman. Allowing the parties to challenge the existence of EPA’s jurisdiction would delay the agency’s response in the same manner as litigation contesting the extent of EPA’s jurisdiction. Southern Pines and VICO can contest the existence of EPA’s jurisdiction if and when EPA seeks to enforce the penalties provided by the Act. IV. Southern Pines and VICO argue that they have been denied due process, that under the fifth amendment, they are entitled to notice and an opportunity to be heard prior to the issuance of a compliance order. Contrary to their claim, appellants’ fifth amendment rights are not violated because they are not subject to an injunction or penalties until EPA pursues an enforcement proceeding. Southern Pines and VICO will have an opportunity to make their constitutional arguments at any enforcement proceeding before they are subjected to any injunction or penalty. See Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990). V. Because we find that Congress intended to preclude, prior to enforcement action or imposition of penalties, judicial review of compliance orders issued under the Clean Water Act, we affirm the district court order dismissing this action. AFFIRMED. . The Act does not require Southern Pines to obtain a permit unless it is discharging fill materials into navigable waters. Navigable waters are "waters of the United States including the territorial seas.” Waters of the United States include "wetlands adjacent to waters (other than waters that are themselves wetlands)_” ' 40 C.F.R. § 230.3(s)(7) (1988). . Title 33 U.S.C. § 1319(a)(3) provides: Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 1311, 1312, 1316, 1317, 1318, or 1345 of this title, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by him or by a State or in a permit issued under section 1344 of this title by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. Section 1319(b) states: The Administrator is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation for which he is authorized to issue a compliance order under subsection (a) of this section.... . Because the compliance order does not alter Southern Pines’ and VICO’s obligations under the Act, and EPA can bring a suit whether or not it issues an order, Southern Pines and VICO are not faced with any greater threat from EPA just because EPA seeks to negotiate a solution rather than to institute civil proceedings immediately. . We are not persuaded by Southern Pines' argument that the savings clause in the citizen suit provision of the CWA, 33 U.S.C. § 1365(e), is evidence that Congress did not intend to preclude review. In Abbott, the Court relied, in part, upon a savings clause in the Federal Food, Drug and Cosmetic Act to find that Congress did not intend to preclude judicial review of the particular regulations at issue. However, the government is not arguing here, as it did in Abbott, that the absence of specific authority in a provision authorizing judicial review in some circumstances is evidence that Congress intended to preclude review in others. And we find no evidence of Congressional intent to preserve review in this type of case in the savings clause of section 1365(e). In Abbott, the savings clause accompanied a section authorizing review of agency regulations, and the plaintiffs in that case were seeking review of a regulation. The savings clause in this case is connected with a provision which provides citizens with the authority to sue to enforce the CWA in cases in which the agency has failed to act. It does not concern challenges by violators to EPA’s attempt to enforce the Act. . Southern Pines and VICO also cite Swanson v. United States, 600 F.Supp. 802 (D.Idaho 1985), aff'd, 789 F.2d 1368 (9th Cir.1986), and Leslie Salt Co. v. United States, 660 F.Supp. 183 (N.D.Cal.1987), for support. We do not find these cases persuasive. Neither case discusses whether the history and nature of the enforcement provisions of section 404 of the CWA demonstrate that Congress intended to preclude pre-en-forcement review of compliance orders.

Save Our Dunes v. Alabama Department of Environmental Management

EDMONDSON, Circuit Judge: By statute and administrative regulation, Alabama has created a means of controlling development along its coastline. Briefly stated, developers wishing to erect structures in the state’s defined coastal zone must first apply for and obtain a building permit from the Alabama Department of Environmental Management (ADEM). State law provides that persons “aggrieved” by ADEM’s decision on a permit application may appeal to the Alabama Environmental Management Commission (AEMC). See Ala.Code sec. 22-22A-7(c). Appellees — plaintiffs in the district court — are several nonprofit organizations that have opinions as to how Alabama’s coastline should be used. They contend that they qualify as “aggrieved” parties under the present state laws and, thus, have rights of appeal from the land use decisions of the ADEM. Additionally, they say that the right of appeal under state law is a kind of property right protected by the federal Constitution. Most particularly, they submit that, pursuant to federal procedural due process obligations, they must be notified specifically and directly by ADEM every time ADEM takes final action in reference to the grant or denial of a building permit application. The district court agreed and, by injunction, ordered the state agency to give such direct notice regularly. We think this was not required by the Constitution. Accordingly, we reverse. We will assume — but do not decide— that persons “aggrieved” within the meaning of the relevant state laws have some “property” right in the opportunity to appeal, itself. Cf. Logan v. Zimmerman, 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (a state-created cause of action constitutes a property interest that entitles the plaintiff to due process). Thus, we are faced with two questions: (1) are appellees-plaintiffs “aggrieved”, within the meaning of Alabama’s laws, by the ADEM’s land use decisions to grant or to deny building permits to applicants wishing to erect structures in the state’s coastal zone; (2) assuming plaintiffs are “aggrieved”, what notice does the federal Constitution, at a minimum, require in respect to final actions of ADEM? We conclude that no plaintiff before us today is “aggrieved” within the meaning of Alabama law. Additionally, we conclude that even if plaintiffs were “aggrieved,” Alabama has provided them with constitutionally adequate notice: ADEM regularly notifies the public regarding pending permit applications. Moreover, ADEM and AEMC apparently do not conceal or otherwise bar access to their records on final agency actions; in fact, the practice is to notify a person when a permit is granted or denied, so long as that person has requested, on a permit-by-permit basis, notification for that particular permit application. Appellees are not “aggrieved”; thus, ap-pellees have no “property” interest in the state appeal Under Alabama law, only “aggrieved” persons have any right to challenge and to appeal final actions taken by ADEM. Thus, whether appellees-plaintiffs are “aggrieved” is critically important. The answer to this question does not hinge on an analysis of plaintiffs’ standing in federal court to pursue this claim. See generally Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Rather, it depends on how Alabama law defines “aggrieved”, see Logan, 455 U.S. at 428-33, 102 S.Ct. at 1154-56 (state law must define a “property” interest for purposes of due process analysis). Certainly, the word “aggrieved” is a term of limitation and describes a category smaller than the general public. As we explain below, only a narrow class of persons — those who own land affected by the issuance of a building permit — constitute “aggrieved” persons. Only one opinion has attempted to define what constitutes an “aggrieved” person under the Alabama Environmental Management Act; but that case did not involve land use planning. ADEM’s regulations provide only that “aggrieved” means “threatened or actual injury in fact.” Rules and Regulations of Environmental Management, sec. 2-l-.02(b) (enacted July 1, 1983; amended Oct. 10, 1984). Clearly, this general provision does not resolve who is aggrieved in concrete situations. Because Alabama’s coastal building permit application program involves a form of land use planning, we look to Alabama land use planning law to guide our inquiry. Alabama zoning law offers the best authority on what constitutes an “aggrieved” person. Like their counterpart in the Alabama Environmental Management Act, sections 11-52-80 and 11-52-81 of the 1975 Code of Alabama provide that “any party aggrieved” may timely challenge and appeal adverse decisions of a local zoning board. Case law defines the term “aggrieved” narrowly in this context. In Cox v. Poer, 45 Ala.App. 295, 229 So.2d 797 (1969), the court defined “aggrieved” as follows: “This, in addition to showing the proximity of one property to the other, requires proof of the adverse affect the changed status of the rezoned property has, or could have, on the use, enjoyment and value of the property of the protestant_” Id. at 297, 229 So.2d at 798-99. See also Crowder v. Zoning Bd. of Adjustment, 406 So.2d 917, 918 (Ala.Ct. App.) (“party aggrieved” must show “the adverse effect the changed status of the rezoned property has, or could have on the use, enjoyment, and value of his own property.”), cert. denied, 406 So.2d 919 (Ala. 1981). Furthermore, the “protestant” must show that he or she has a legal or equitable interest in land affected by the zoning decision. See Board of Adjustment v. Matranga, Hess & Sullivan, 51 Ala.App. 154, 283 So.2d 607 (Ala.Civ.App.1973). As Alabama land use cases suggest, aesthetic, environmental, or recreational concerns alone do not confer “aggrieved party” status; the complainant must show that an adverse agency action somehow affected his or her interest in land. In a recent decision the Supreme Court of Alabama held that an adjacent property owner who owned a condominium along the coast was not an “aggrieved” party under Ala. Code sec. 11-52-81: “[plaintiff] has failed to show the existence of a legal right which requires protection. The only thing for which protection is sought is a view of the Gulf of Mexico, to which [plaintiff] does not have a legal entitlement.” Gulf House Ass’n, Inc. v. Town of Gulf Shores, 484 So.2d 1061, 1063-64 (Ala.1985) (citing for authority Ray v. Lynes, 10 Ala. 63 (1846)). Accordingly, the Supreme Court found that “the ruling in favor of issuance of the variance was proper”, and it denied plaintiff's request for a permanent injunction. Id. at 1064. Other jurisdictions have addressed the question whether civic or environmental groups may attain “aggrieved party” status. In Virginia Beach Beautification Comm’n v. Board of Zoning Appeals, 231 Va. 415, 344 S.E.2d 899 (1986), the court found that plaintiff, an environmental organization, could not contest the decision of a zoning board to issue a permit variance: The term “aggrieved” has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to seek court relief from an adverse decision.... The petitioner “must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.” ... Thus, it is not sufficient that the sole interest of the petitioner is to advance some perceived public right or to redress some anticipated public injury when the only wrong he has suffered is in common with other persons similarly situated.... In the present case, the Commission, for example, neither owns nor occupies real property within or in close proximity to the property that is the subject of the variance application. Indeed, the Commission owns no property at all. And it has not otherwise demonstrated a direct, immediate, pecuniary, and substantial in-' terest in the decision to grant the variance to the height and setback requirements applicable to freestanding signs in the City. The organization is merely a nonstock corporation with no specific property interests to be damaged. See Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). Accordingly, we hold that the trial court correctly decided that the Commission is not a party “aggrieved” within the meaning of Code sec. 15.1-497. Id. at 420, 344 S.E.2d at 902-03 (citations omitted). See also Izaak Walton League of America v. Monroe County, 448 So.2d 1170, 1173-74 (Fla. 3rd Dist.Ct.App.1984) (plaintiff, an environmental organization, lacked statutory standing as an “aggrieved” person to challenge a rezoning decision); Lindsey Creek Area Civic Ass’n. v. Consolidated Gov’t of Columbus, 249 Ga. 488, 491, 292 S.E.2d 61, 63-64 (1982) (“Civic associations and subdivision clubs do not have standing to enjoin rezoning unless they own property affected by the rezoning, or unless they are joined by individual plaintiffs who have standing to do so.”). In the present case plaintiffs consist of various civic-minded and environmental organizations, whose members may or may not be citizens of Alabama. Plaintiffs claim that they use and enjoy Alabama’s coastal beaches. Yet they have not shown how ADEM’s actions adversely affected their legal or equitable interests in land. Consequently, plaintiffs have not established that they are “aggrieved” within the meaning of state law. Under the fourteenth amendment, plaintiffs’ claim to a constitutionally cognizable “property” interest must be grounded in state law. See Logan, 455 U.S. at 428-33, 102 S.Ct. at 1154-56. Thus, without demonstrating how they qualify as “aggrieved” persons under Alabama law, plaintiffs have no “property” interest in a state appeal to support their claim to due process. Alabama Provides Due Process Notice If plaintiffs were not, under Alabama law, “aggrieved”, they had no property interest in an appeal; and federal procedural due process is not required as to plaintiffs in respect to notice of the administrative appeal. When deciding cases, we address questions of federal constitutional law only as a last resort. Nevertheless, because we may possibly have mistakenly interpreted Alabama law in respect to “aggrieved”, we offer these thoughts concerning notice due persons who are “aggrieved” or may be “aggrieved” by ADEM’s actions concerning the issuance of a building permit. There is no issue in this case about whether Alabama gives adequate notice to the public, including plaintiffs, when applications for building permits are made: the public is notified by legal advertisement published in two newspapers of circulation in the coastal zone. Furthermore, there is no contention that ADEM and the AEMC are secretive about their proceedings. Put differently, persons who inquire as to the status of particular applications can be informed. Because who is or may be “aggrieved” by a building permit decision depends on a variety of factors, who — other than the applicant — may be “aggrieved” by each decision is indefinite; therefore, the names and addresses of such persons are not easily ascertainable by ADEM. Cf. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). Moreover, as a matter of practice, anyone who specifically requests to receive direct written notice of final agency action as to a specific application will be provided such notice, if the person provides a properly addressed and stamped envelope to ADEM for that purpose. What due process requires varies and depends upon all the circumstances. See Mullane v. Central Hannover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 469 F.Supp. 836, 858-62 (N.D.Ill.1979), aff'd, 616 F.2d 1006, 1015 (7th Cir.1980). No Supreme Court case or other federal appellate court has required more notice than this in circumstances similar to this. Once Alabama gives good notice of a building permit application, Alabama can properly require persons concerned about a building application (other than their own application concerning their own land) in the coastal zone to initiate reasonable steps to keep themselves informed as to the status of the proceedings about which they are curious. That we might wish that Alabama would do more or that it is conceivable that Alabama could do more does not mean that Alabama is actually required by the Constitution to do more. In conclusion, assuming arguendo that plaintiffs have a state-created “property” interest in an appeal, Alabama’s laws and procedures provide plaintiffs with the process that is “due.” We cannot say that it is too much to expect persons concerned about the permit application process to monitor its progress with an eye towards the deadline for filing an appeal. Accordingly, the judgment of the district court must be REVERSED. . For background, see Save Our Dunes v. Pegues, 661 F.Supp. 18 (M.D.Ala.1987); Save Our Dunes v. Pegues, 642 F.Supp. 393 (M.D.Ala.1985). . At least one court has held that "[t]he opportunity granted abutting landowners and aggrieved persons to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an interest protected by the fourteenth amendment." Fusco v. State of Conn., 815 F.2d 201, 205-06 (2d Cir.), cert. denied, — U.S.—, 108 S.Ct. 149, 98 L.Ed.2d 105 (1987). . In Marshall Durbin & Co. of Jasper, Inc. v. Alabama Dep’t of Envtl. Management, Inc., No. 5625 (Ala.Ct.App. Apr. 29, 1987), cert. granted, No. 86-1214 (Ala. Oct. 13, 1987), the court found that plaintiff, a company which sought to challenge rate hikes purportedly caused by the issuance of a sewage emission permit, “lacks statutory standing to challenge the issuance of the new permit because it is unable to show that the injury which it sustained was directly inflicted by an administrative action. See, sec. 22-22A-7(c), Code 1975." . Like the Alabama Environmental Management Act, Alabama’s zoning laws regulate the use and development of land. Environmental, aesthetic, and recreational factors play a role in many zoning decisions, as well as other, more economic or business-related factors. Compare Roberson v. City of Montgomery, 285 Ala. 421, 425, 233 So.2d 69, 72 (1970) (discussing "planning" and "zoning” generally) with Ala.Code sec. 22-22A-2 (statement of the “legislative intent and purposes" of the Alabama Environmental Management Act). . Plaintiffs’ complaint states as follows: Plaintiffs’ members and representatives visit, use, and enjoy the Gulf Coast Beaches of Alabama, including the beaches of Perdido Key, for, among other things, recreational purposes such as wildlife viewing and education, fishing, swimming, boating, hiking, nature study, and photography; conservation purposes; food; and general aesthetic and spiritual enjoyment. Plaintiffs and their members have been and continue to be irreparably harmed by the acts and omissions of defendants as alleged herein. Plaintiffs do not contend that Alabama’s regulatory scheme vests them with a property interest in beach land. . Apparently nothing in the Record indicates that the issuance of a permit by ADEM adversely affected the land or property rights of plaintiffs’ members. Plaintiffs have failed to produce any adjacent landowner who could show harm to the use and enjoyment of his property. Although plaintiffs’ counsel belatedly suggested in oral argument that some members owned property overlooking the condominium developments originally in dispute, counsel did not make any reference to the Record on Appeal; in any event, a blocked view does not necessarily confer "aggrieved” person status under Alabama law. See Gulf House Ass’n, Inc., 484 So.2d at 1063-64. . Of course, we do not hold that none of the plaintiff organizations could ever be an "aggrieved” party in respect to a specific building permit application. If, for example, one of those organizations, itself, owned land and, otherwise, met the test for aggrievement, the organization would be treated in that case as any other entity and could be “aggrieved.” We reject, however, the idea that their concern, knowledge and general use of beaches are, in and of themselves, sufficient to make plaintiffs generally "aggrieved” or, put differently, “aggrieved” in each and every permit application. .This ought not be understood as a confession of grave doubt on our part. We just recognize that Alabama’s own high courts — and not the United States Courts — have the final word as to what Alabama’s laws truly mean. Our interpretation of "aggrieved" represents our best effort to decide what we think Alabama’s highest court would decide if faced with the same question.

Save Our Dunes v. Alabama Department of Environmental Management

ARONOVITZ, District Judge, specially concurring: I concur in the result and in that part of the Opinion holding that plaintiffs are not “aggrieved” parties under Alabama law; however, I would not reach the alternative issue with respect to Federal Due Process, as I do not deem it necessary to reach that Constitutional issue at this time.

Twp. of Bordentown v. Fed. Energy Regulatory Comm'n

CHAGARES, Circuit Judge. I. Introduction...242 II. Background...243 A. Statutory Background...243 B. Procedural History...244 III. Challenges to FERC's Orders...246 A. Interpreting the CWA...246 B. NEPA Challenges...248 1. Segmentation of PennEast...248 2. Consideration of the SRL...251 3. Potable Well Impacts...258 C. Need for the Project...261 D. Good Faith Notice...263 E. Green Acres Act...264 F. Cumulative Error...266 IV. Challenges to the NJDEP's Order...266 A. Jurisdiction Under the NGA...266 B. New Jersey Law...269 V. Conclusion...272 I. Introduction This consolidated appeal considers a bevy of challenges brought by the Township of Bordentown, Township of Chesterfield, and Pinelands Preservation Alliance's ("PPA") (collectively, the "petitioners"), seeking to prevent the expansion of interstate natural gas pipeline facilities operated by the Transcontinental Pipe Line Company, LLC ("Transco"). The petitioners contend that the Federal Energy Regulatory Commission ("FERC") violated the federal statute governing the approval and construction of interstate pipelines, as well as other generally applicable federal environmental protection statutes, by arbitrarily and capriciously approving Transco's proposed project. The petitioners further maintain that the New Jersey Department of Environmental Protection ("NJDEP") violated New Jersey law by (1) improperly issuing to Transco various permits that Transco was required under federal law to obtain before it could commence construction activities on the pipeline project, and (2) denying the petitioners' request for an adjudicatory hearing to challenge the permits' issuance, based only on the NJDEP's allegedly incorrect belief that the New Jersey regulations establishing the availability of such hearings were preempted by federal law. As explained more fully below, although we conclude that the petitioners' challenges to FERC's orders lack merit, we agree that the NJDEP's interpretation of the relevant federal law was incorrect, thus rendering unreasonable the sole basis for its denial of the petitioners' request for a hearing. Given our disposition, we do not reach the petitioners' substantive challenges to the NJDEP's provision of the permits, which-assuming a hearing is granted-we leave for the NJDEP to address in the first instance. We accordingly will deny in part and grant in part the petitions for review, and we will remand to the NJDEP for proceedings consistent with this opinion. II. Background This case presents challenges to both the federal and state governments' treatment of Transco's application to construct its interstate pipeline project. Before detailing the agency proceedings that preceded this appeal, we first briefly set forth the various interlocking federal and state regulatory schemes at play, which this Court has already elucidated in some detail. See Del. Riverkeeper Network v. Sec'y of Pa. Dep't of Envtl. Prot., 870 F.3d 171, 174 (3d Cir. 2017) (" Delaware II"); Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot., 833 F.3d 360, 367-69 (3d Cir. 2016) (" Delaware I"). A. Statutory Background Under the Natural Gas Act of 1938 ("NGA"), 15 U.S.C. §§ 717 - 717z, FERC is tasked with regulating the construction and operation of interstate natural gas pipelines. Id. §§ 717f, 717n. If FERC determines that a given project should proceed, it will issue a "certificate of public convenience and necessity" (the "certificate"), which in turn is conditioned on the pipeline operator acquiring other necessary state and federal authorizations. See Delaware I, 833 F.3d at 367-68. Among the regulatory schemes related to the NGA are the federal environmental laws, including the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4370h, and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 - 1388. NEPA is primarily a procedural statute that requires FERC to assess "the potential environmental impact of a proposed pipeline project." Delaware I, 833 F.3d at 368. Upon completing the analysis, FERC must issue either an Environmental Assessment ("EA," if the analysis indicates that the project will have no significant environmental impacts) or an Environmental Impact Statement ("EIS," if the analysis indicates that the project will be a " 'major Federal action' that would 'significantly affect[ ] the quality of the human environment' "). Del. Riverkeeper Network v. U.S. Army Corps of Eng'rs, 869 F.3d 148, 152 (3d Cir. 2017) (quoting 42 U.S.C. § 4332(C) ). As to the CWA, although the NGA explicitly "preempts state environmental regulation of interstate natural gas facilities," it "allows states to participate in environmental regulation of these facilities under ... the Clean Water Act." Delaware I, 833 F.3d at 368. The CWA permits states, subject to United States Environmental Protection Agency approval, to establish their own minimum water quality standards, including by regulating the discharge of pollutants into bodies of water in the state. Id. The NGA and CWA converge where, to construct an interstate pipeline, a company must discharge into-or displace water from-the navigable waters of the United States. Before a company is permitted to undertake this activity, it must obtain a permit pursuant to Section 404 of the CWA, which itself may issue only after the company secures a state-issued Water Quality Certification, pursuant to Section 401 of the CWA, "confirm[ing] that a given facility will comply with federal discharge limitations and state water quality standards." Id.; see also 33 U.S.C. § 1341(a) ("Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, ... that any such discharge will comply with the applicable [water quality] provisions ... of this Act"). Because New Jersey has assumed permitting authority under Section 404-implemented by the NJDEP under the framework of the New Jersey Freshwater Wetlands Protection Act ("FWPA"), N.J. Stat. Ann. § 13:9B-1 -the issuance of a Section 404 permit in New Jersey carries with it a Section 401 Water Quality Certification. N.J. Admin. Code § 7:7A-2.1(c)-(d); Delaware I, 833 F.3d at 368-69. B. Procedural History The permits at issue in this case relate to Transco's Garden State Expansion Project (the "Project"), by which Transco planned to upgrade its existing interstate natural gas pipeline system so that it could support the transportation of another 180,000 dekatherms per day of capacity for natural gas from its Mainline to its Trenton-Woodbury Lateral. The Project proposed to construct a new meter and regulating station, compressor station, and electric substation along the Trenton-Woodbury Lateral in Chesterfield, New Jersey (Station 203), and to upgrade and modify the existing motor drives and compressor station located on the Mainline in Mercer County, New Jersey (Station 205). The New Jersey Natural Gas company ("NJNG") contracted with Transco to utilize all the capacity added by the Project, for distribution via NJNG's intrastate pipeline system. In anticipation of obtaining the excess capacity, NJNG has proposed to construct the Southern Reliability Link Project ("SRL"), a 28-mile-long intrastate pipeline that would connect to Transco's Trenton-Woodbury Lateral pipeline and deliver gas south-eastward for connection into NJNG's existing system. Separately, PennEast has proposed to construct the interstate PennEast Pipeline Project, which would deliver natural gas from Pennsylvania's Marcellus Shale region and terminate at an interconnect with Transco's Mainline. NJNG has independently contracted with PennEast to purchase 180,000 dekatherms per day of the PennEast project's expected supply, for delivery to the SRL via Transco's pipeline network. As required by the NGA, Transco sought and obtained from FERC a certificate of public convenience and necessity authorizing the construction of the Project, subject-as is generally the case-to Transco "receiv[ing] all applicable authorizations required under federal law." Appendix ("App.") 67. Prior to issuing the certificate, FERC conducted an environmental analysis and issued an EA concluding that, with the appropriate mitigation measures, the Project would have "no significant impact" on the environment. App. 1479; see also App. 45. FERC issued the EA in November 2015 and, after receiving comments, issued Transco the certificate in April 2016. Bordentown and Chesterfield moved FERC for a rehearing, which FERC denied in November 2016. See App. 74-97. Because the Project would be situated in freshwater wetlands and transition areas, and the construction of the Project would require discharging fill or dredge material into navigable waters as well as the diversion of a significant volume of water, Transco applied to the NJDEP for a Freshwater Wetlands Individual Permit and Water Quality Certificate ("FWW permit") and dewatering permit, as required by the CWA and New Jersey law. The NJDEP held two days of public hearings to consider the FWW permit, and received over 1,800 written comments, which included concerns raised by each of the petitioners. After obtaining Transco's responses to the public comments, as well as its responses to the NJDEP's requests for additional information concerning possible alternative sites for an electrical substation that would be built as part of the Project, the NJDEP issued the FWW permit on March 13, 2017. Shortly thereafter-and also following a public hearing-the NJDEP on March 16, 2017 issued the temporary dewatering permit. Pursuant to New Jersey law, the petitioners sought an adjudicatory hearing concerning each permit. Bordentown-later joined by Chesterfield and PPA-filed a request for a hearing on the FWW on March 22, 2017. On April 11, 2017, Bordentown alone also requested an adjudicatory hearing on the dewatering permit. Both requests were filed within the 30-day limitations period established under New Jersey law for seeking adjudicatory hearings. See N.J. Admin. Code §§ 7:7A-21.1(b) ; 7:14A-17.2(c). Bordentown asserted that it had standing under state law to challenge the permits as a third party because it had a particularized property interest affected by the Project, given that part of the project would be built on Bordentown-owned land, which Transco had acquired through eminent domain under the authority granted by the FERC certificate. See NJDEP App. 37 & n.4; 15 U.S.C. § 717f(h). On August 22, 2017, the NJDEP denied the petitioners' requests for an adjudicatory hearing on either permit. The sole stated basis for the NJDEP's denial of the request was that this Court's decision in Delaware I established that we have "exclusive jurisdiction to review the issuance of permits regarding interstate natural gas pipeline projects" and accordingly that by operation of the NGA "the state administrative hearing process provided for in the [FWPA] is not applicable to permits for interstate natural gas projects." NJDEP App. 39. Concluding that the NGA "requires that final permits be appealed to the Third Circuit," the NJDEP denied the petitioners' hearing requests. The petitioners timely sought review in this Court, both of FERC's orders issuing the certificate and denying rehearing, and of the NJDEP's issuance of the permits and its order denying the requests for an adjudicatory hearing to challenge them. We have jurisdiction to review these petitions for review of the federal and state agencies' orders regarding the interstate Project under 15 U.S.C. § 717r(d)(1). III. Challenges to FERC's Orders We begin with the challenges directed at FERC's orders (docket No. 17-1047). As explained more fully below, we conclude that the petitioners' FERC-related claims are unavailing. A. Interpreting the CWA Before turning to the merits of the certificate's issuance, we must address the petitioners' challenge to its timing. As noted, Transco was required under the CWA to obtain a Section 401 permit from the NJDEP affirming that Transco's discharge activities would comply with federal and state water quality standards. Under Section 401, Transco had to obtain such a permit prior to the issuance of any "Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters." 33 U.S.C. § 1341(a) ; see also id. ("No license or permit shall be granted until the certification required by this section has been obtained or has been waived...."). The petitioners argue that, despite this clear language, FERC issued the certificate to Transco before Transco obtained the Section 401 permit from New Jersey, thereby authorizing the pipeline project that "may result in ... discharge into the navigable waters" in contravention of § 1341(a) 's mandate. FERC does not dispute that Transco had yet to obtain the Section 401 permit, but argues instead that it only issued a conditional certificate, which required Transco first to obtain the required state permits and then to secure FERC's permission to proceed before it could begin any construction related to the project. See App. 67, 89-90. In FERC's view, because the certificate did not, in fact, permit Transco to "conduct any activity" that could "result in any discharge into the navigable waters" until Transco had received the necessary state permits, FERC's issuance of the conditional certificate prior to Transco's receipt of the state-issued Section 401 permit did not contravene the CWA. We agree with FERC's position and hold that FERC's practice of issuing certificates that condition the start of construction on the receipt of the necessary state permits complies with the plain language of the CWA. As the Court of Appeals for the District of Columbia Circuit explained, "the 'logically antecedent' question under § 401 is whether the disputed federal permit or license 'is subject to the provisions of Section 401(a)(1)' in the first place." Del. Riverkeeper Network v. FERC, 857 F.3d 388, 398 (D.C. Cir. 2017) (" DRN II") (quoting North Carolina v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997) ). Where the conduct that the certificate authorizes "would not result in a discharge," Section 401(a) is inapposite and no "license or permit" is needed to engage in that conduct. Id. The petitioners concede that the certificate did not permit Transco to engage in any construction-which implicitly acknowledges that it did not permit Transco to engage in any activity that could result in discharge-but argue that the certificate nevertheless "sanctions other conduct that Transco would not otherwise be permitted to undertake," such as initiating condemnation actions under the NGA, 15 U.S.C. § 717f(h). Pet. Br. 35. However, the activity that FERC's certificate allows to commence-bringing a condemnation action-cannot, without a series of additional steps (among them the prohibited construction activities), result in the discharge of water. Even accepting the petitioners' argument, FERC's conditional certification does not contravene the CWA's requirements. The petitioners' argument would expand the CWA from a statute meant to safeguard the nation's water sources to a statute regulating the initiation of an interstate pipeline's construction process. However, the latter statute already exists and, as the petitioners themselves note, it provides Transco the condemnation authority upon the issuance of the certificate, with no caveats. To the extent that the NGA recognizes the continued applicability of the CWA, it is only with respect to pipeline-related activities that impact the CWA's area of concern. The mere ability to initiate condemnation proceedings, proceedings regarding land from which discharge into the United States' navigable waters might not even occur, plainly is not an activity that the CWA prohibits prior to obtaining a Section 401 permit. Because, as was the case before the D.C. Circuit, the petitioners have "pointed to no activities authorized by the conditional certificate itself that may result in such discharge prior to the state approval and the Commission's issuance of a Notice to Proceed," DRN II, 857 F.3d at 399 (quoting Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 279 (D.C. Cir. 2015) (Rogers, J., dissenting in part and concurring in the judgment) ), we conclude that FERC did not violate the CWA by issuing the certificate prior to the NJDEP's issuance of its Section 401 permit. B. NEPA Challenges Turning to the merits of FERC's issuance of the certificate, the petitioners first raise a number claims asserting that FERC violated NEPA by failing-in numerous ways-to consider the full scope of the Project's environmental impacts. The petitioners specifically challenge FERC's conclusion that the Project's impacts should be considered separately from the impacts of the PennEast and SRL projects, as well as FERC's determination that the Project would not significantly impact the potable wells in the project's vicinity. NEPA is "primarily [an] information-forcing" statute; it "directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another." Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017) (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) ). In addition to that general directive, NEPA created the Council of Environmental Quality ("CEQ") to issue regulations to effectuate the statute. These regulations are " 'mandatory' for all federal agencies, carry the force of law, and are entitled to 'substantial deference.' " Del. Dep't of Nat. Res. & Envtl. Control v. U.S. Army Corps of Eng'rs, 685 F.3d 259, 269 (3d Cir. 2012) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ). A court reviewing an agency decision under NEPA and its implementing regulations may only overturn an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; see also Del. Dep't of Nat. Res., 685 F.3d at 271. So long as the agency takes a " 'hard look' at the environmental consequences" the agency has satisfied its responsibilities and a reviewing court may not "substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (quoting NRDC v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972) ). In other words, NEPA "requires informed decisionmaking 'but not necessarily the best decision.' " WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013) (quoting New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476 (D.C. Cir. 2012) ). 1. Segmentation of PennEast Under NEPA and its implementing regulations, when evaluating a proposed project's environmental impacts, an agency must take account of "connected," "cumulative," and "similar actions" whose impacts should be "discussed in the same impact statement" as the project under review. 40 C.F.R. § 1508.25(a). Where an agency instead attempts to consider such related actions separately by segmenting the mandated unified review into multiple independent analyses that insulate each project from the impacts created by its sister projects, it "fails to address the true scope and impact of the activities that should be under consideration" and therefore runs afoul of NEPA. Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (" DRN I"). The petitioners allege that FERC did just that, by refusing to consider the Project's impacts in conjunction with the anticipated impacts of the proposed PennEast pipeline that, when completed, will be the source of the gas that NJNG will transport using the capacity added by the Project. The petitioners insist that PennEast is a "connected action" that must be considered together with the Project because the two pipeline projects "lack independent functional utility." Pet. Br. 16 (citing Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894-95 (9th Cir. 2002) ). Given that the undisputed facts here clearly attest to the projects' separateness, we conclude that FERC correctly rejected this argument. Actions are deemed "connected" with one another if they "(i) [a]utomatically trigger other actions which may require environmental impact statements," "(ii) [c]annot or will not proceed unless other actions are taken previously or simultaneously," or "(iii) [a]re interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25(a)(1). The petitioners' claim relies on the third basis for finding a connected action. In line with the prevailing view amongst the Courts of Appeals, both FERC and the petitioners agree that the essential question is whether the segmented projects have independent utility. See Pet. Br. 16; App. 45; see also, e.g., Coal. on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 312 (2d Cir. 2009) ("The proper test to determine relatedness under 40 C.F.R. § 1508.25(a)(1)(iii) is whether the project has independent utility." (quoting Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2d Cir. 1988) ) ); Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006) (same). Projects have independent utility where "each project would have taken place in the other's absence." Webster v. U.S. Dep't of Agric., 685 F.3d 411, 426 (4th Cir. 2012) (collecting cases). The petitioners' theory of interdependence-or, stated in the inverse, the lack of independent utility-relies entirely on their unfounded contention that "Transco's sole stated purpose for the Project is to supply capacity to NJNG from the PennEast Line." Pet. Br. 16. But this is simply not so. The statements that the petitioners point to in support merely articulate the undisputed fact that the Project would supply capacity to NJNG; they are agnostic as to the source of the gas that would utilize the capacity. App. 887, 1419. Rather, as FERC concluded below, the agreement between NJNG and Transco concerning the Project makes clear both that NJNG contracted for Transco's capacity without regard to the source (or even availability) of the natural gas-which NJNG is alone responsible for sourcing-and, more importantly, that the actual source of the physical supply for the capacity added by the Project is the Station 210 Zone 6 pooling point, not the PennEast line. In addition, FERC found the PennEast project's proposed capacity of 1,107,000 dekatherms per day is 90 percent subscribed by 12 different shippers, such that NJNG's subscription makes up less than 15 percent of the pipeline's capacity. App. 47-50; 80. In other words, the Project would go forward even if PennEast were not built (such that NJNG could not obtain PennEast gas to consume Transco's capacity) and conversely the PennEast project would go forward even if the Project were not built (such that PennEast could not deliver its gas to NJNG). Indeed, in their reply, the petitioners all but concede that their segmentation claim fails. They acknowledge that PennEast has independent utility from the Project because it serves many shippers apart from NJNG. Reply Br. 7. They further concede that, even if PennEast is not built, NJNG could use the extra capacity provided by the Project to transport gas purchased from another supplier and moreover that NJNG's contract with Transco obligates it "to obtain the gas regardless of whether the Penn East project is built." Reply Br. 7. The petitioners' continued argument that FERC improperly segmented the Project and PennEast thus relies on the petitioners' bare assertion that this contractual setup-which establishes that NJNG must use the Project's increased capacity whether or not the gas comes from the PennEast line-is entirely irrelevant to determining whether the sole purpose of the Project is to connect PennEast and the SRL. But even to describe the petitioners' argument is to refute it. If just constructing the Project-and thus adding the capacity that NJNG requires-is sufficient to meet Transco's contractual obligation, such that NJNG must buy the capacity regardless of any other contingency (such as PennEast's status), then the Project's construction alone plainly serves an independent purpose separate and apart from whatever happens to the PennEast pipeline. See, e.g., NRDC v. U.S. Nuclear Regulatory Comm'n, 879 F.3d 1202, 1209 (D.C. Cir. 2018) (rejecting as insufficient to rebut a finding of economic viability a petitioner's claim that the developer had "envisioned" the project "as part of a larger" development plan). To conclude otherwise, the petitioners confuse the means of the Project for its ends. The Project exists to fulfill NJNG's need for gas in southern New Jersey, a need that will exist and require satisfaction whether or not PennEast is constructed. As we elaborate on below in discussing the need for the Project, NJNG required more supply to shore-up the southern parts of the state after Hurricane Sandy. App. 1419. To obtain that supply, NJNG contracted (1) with Transco to increase its pipeline's capacity and (2) with PennEast to get the gas to Transco. But while Transco's capacity increase is necessary to the plan, PennEast's participation is not. NJNG can (and by contract, must) simply buy gas from the Zone 6 pooling point that was delivered by a different supplier. Finally, even if the petitioners are correct that we are obligated to ignore the contractual terms and focus only on the functionality of the pipeline, such an analysis points conclusively in FERC's favor. Transco's Mainline can change the direction of gas flow depending on market conditions. See App. 49-501. The Station 210 Zone 6 Pooling point (connecting Transco's Leidy line to the Mainline) thus can either send gas from the Leidy line to the South or pull flow from the Gulf of Mexico northward, depending on market factors-such as where the cheaper gas is being produced. App. 49. The PennEast pipeline will connect to the Transco Mainline south of the Station 210 Zone 6 pool from which NJNG has contracted with Transco to obtain the supply created by the project. Accordingly, the Zone 6 pool will only be filled with gas physically brought in by the PennEast line during times when the Mainline is running South-to-North. The mechanics of the Transco Mainline's flow-determined without consideration of the NJNG contract-make it highly unlikely that the physical gas flowing from the Zone 6 pool, through the Transco lateral, to the SRL will only be gas piped in by PennEast. In a pipeline, gas is fungible, so "its 'transportation' does not always take the form of the physical carriage of a particular supply of gas from its starting point to its destination." Associated Gas Distribs. v. FERC, 899 F.2d 1250, 1254 n.1 (D.C. Cir. 1990). NJNG's contract to purchase gas from PennEast and its simultaneous contract with Transco for capacity to transport that exact amount of gas was not, as the petitioners argue to this Court, a contract to purchase and transport PennEast's physical gas to the SRL. It was rather a contract to purchase an amount of gas from PennEast for inclusion in the Transco system, supported by a separate contract between NJNG and Transco to transport that same amount of gas from Transco's pooling station to the SRL. As FERC explained in its order denying rehearing, although "it is feasible, using backhaul and other methods, that natural gas from the PennEast Project could ultimately be delivered on Transco to reach the" SRL, that is not the way that the Mainline will necessarily operate. App. 81 n.36. The Project will thus often service the SRL with non-PennEast-derived natural gas, cementing our conclusion that the Project has a value independent of the PennEast line. Because we conclude that the Project's purpose is to supply the capacity that NJNG requested from their Zone 6 pool, and that the source of the pool's gas will be determined based on market conditions, we agree that FERC's refusal to consider PennEast a "connected action" in the Project's EA was not arbitrary and capricious. 2. Consideration of the SRL a. Direct Review As an intrastate pipeline, the SRL does not fall within FERC's jurisdiction under the NGA. Nevertheless, in recognition of the fact that in some cases FERC "is required under NEPA to give some environmental consideration of nonjurisdictional facilities," FERC has developed a four-factor balancing test "to determine whether there is sufficient federal control over a project to warrant environmental analysis." Nat'l Comm. for the New River v. FERC, 373 F.3d 1323, 1333 (D.C. Cir. 2004). Under the test, FERC considers (1) whether the regulated activity comprises "merely a link" in a corridor type project; (2) whether there are aspects of the nonjurisdictional facility in the immediate vicinity of the regulated activity that uniquely determine the location and configuration of the regulated activity; (3) the extent to which the entire project will be within the Commission's jurisdiction; and (4) the extent of cumulative federal control and responsibility. Id. at 1333-34 (citing 18 C.F.R. § 380.12(c)(2)(ii) ). As the Court of Appeals for the District of Columbia Circuit has explained, the purpose of this test is to limit consideration of the environmental impacts of non-jurisdictional facilities to cases in which those facilities "are built in conjunction with jurisdictional facilities and are an essential part of a major federal action having a significant effect on the environment." Id. at 1334. Applying the test in its order denying the petitioners' request for rehearing, FERC concluded that "on balance" the factors weighed against federalizing the SRL. App. 83. It reached this conclusion after giving careful attention to each factor. As to the first factor, for the same reasons that PennEast and the Project were not improperly segmented, FERC concluded that PennEast, the SRL, and the Project do not comprise a single corridor type project and that the Project would be a comparatively minor element compared to the 30-mile SRL. On the second factor, FERC concluded that the SRL did not "uniquely determine" the location of the project, because the SRL needed only to connect to the Transco lateral at some point at or downstream of the newly constructed Station 203, not to the compressor station itself. The location of Station 203, accordingly, was not uniquely dictated by the needs of the SRL. Regarding the third factor, FERC explained that (excluding PennEast which, as noted, is not part of the Project) the jurisdictional Project is dwarfed by the size of the SRL. FERC rejected the contention that its oversight of the PennEast's and the Project's costs-which the petitioners assert will be passed on to SRL ratepayers-means that FERC has decisional authority impacting the SRL. As FERC further explained, because each pipeline is owned by different companies, there will be no cost sharing between them; rather, shippers using each line will bear their own costs. Moreover, the tariffs of SRL, as an intrastate line, are governed by the New Jersey Board of Public Utilities and FERC has no role in funding, approving, or overseeing the SRL's construction or operation. Finally, concerning the fourth factor, FERC noted the almost total absence of federal control over the SRL and rejected the petitioners' argument that, by briefly traversing a federal military base and in light of some generally applicable federal permitting requirements, the SRL was subject to significant cumulative federal control. Although we recognize that one could quibble with its analysis of the second factor, we discern no abuse of discretion in FERC's final analysis or its weighing of the factors. The petitioners' argument that the first factor is satisfied is based solely on their view that the Project, when considered in conjunction with the 122-mile PennEast line, is significantly larger than the SRL. But this avenue of attack is foreclosed by our agreement with FERC's determination that the PennEast line was properly segmented from the Project. The petitioners' assertion that FERC has de facto jurisdiction over the SRL by virtue of its oversight over the Project's rates which in turn impacts the SRL's rates, even if accurate, articulates a logic that would extend FERC oversight over every nonjurisdictional project that attaches to an interstate pipeline. Such a rule would swallow the non-jurisdictional exception altogether. By its nature, a pipeline network consists of interstate and intrastate projects, and so the projects' connectedness alone-along with inherent cross-effects created by that connection-cannot weigh meaningfully in favor of federal control over purely intrastate projects. See New River, 373 F.3d at 1334 (repudiating view that would require "the Commission to extend its jurisdiction over nonjurisdictional activities simply on the basis that they were connected to a jurisdictional pipeline"). Finally, that the SRL (1) would need to obtain an easement from the federal government, (2) traverses a federally designated National Reserve (managed by a state agency), and (3) must abide by generally applicable pipeline safety regulations are slim reeds upon which to assert cumulative federal control over the entire SRL. See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009) (explaining that the fact that a federal permit must be secured prior to commencing-and "is central to the success" of-a project, "does not itself give the [permitting agency] 'control and responsibility' over the entire" project); New River, 373 F.3d at 1334 (deferring to FERC's determination of insufficient control despite petitioner's argument that the project at issue was subject to numerous federal licensing requirements). Because the above three factors weigh clearly against asserting federal jurisdiction over the SRL, the possibility that the location of Station 203-which links up to the SRL-was dictated in part by the location of the SRL does not render FERC's ultimate balancing arbitrary and capricious. The record evidence falls short of showing that the location was "uniquely determine[d]" by the SRL, but even if it did, this factor alone would not change the reasonableness of FERC's balancing, to which we accordingly defer. See New River, 373 F.3d at 1334 (rejecting petitioner's claim that satisfying the second factor, alone, is sufficient "to tip the balance in the four-factor test"). b. Cumulative Impacts The petitioners alternatively argue that, even if FERC were not required to assert jurisdiction over the SRL, it was nevertheless required under NEPA to assess whether-in conjunction with the jurisdictional Project-the nonjurisdictional SRL would foreseeably have cumulative impacts on the environment. Under NEPA's implementing regulations, FERC is required to consider "the incremental [environmental] impact" of the jurisdictional action when added to the existing or "reasonably foreseeable" impacts of other actions, whether or not jurisdictional. 40 C.F.R. §§ 1508.7, .25 ; see also id. § 1508.7 ("Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."). When conducting a cumulative-impacts analysis, FERC: [M]ust identify (i) the 'area in which the effects of the proposed project will be felt'; (ii) the impact expected 'in that area'; (iii) those 'other actions-past, present, and proposed, and reasonably foreseeable' that have had or will have impact 'in the same area'; (iv) the effects of those other impacts; and ( [v] ) the 'overall impact that can be expected if the individual impacts are allowed to accumulate.' Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir. 2016) (quotation marks omitted) (quoting TOMAC v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006) ). In line with this test, FERC determined that the Project's "main region of influence" in which cumulative impacts might be felt was .25 miles from each of the Project's components, but nevertheless considered the cumulative impacts of the SRL, PennEast line, and other projects even though they largely fell outside of the Project's area of influence. FERC recognized that both the Project and the SRL would impact wetlands, but concluded based on the Project's limited geographic and durational impact, along with FERC's mandated mitigation measures, that any cumulative effects would be minor. It reached similar conclusions regarding impacts to vegetation and wildlife, explaining that cumulative effects are greatest when projects are built in the same geography, during the same time period, and where the impacts are expected to be long-term. FERC noted that the SRL, although largely occurring within existing rights of way, would be a significant pipeline project situated in a variety of habitats, including the protected Pinelands Area, and would be subject to extensive state-level regulation that would determine its ultimate environmental impacts. FERC accordingly outlined the potential area and kinds of resources that the SRL could impact but-in recognition of the ongoing state regulation-did not firmly conclude how the impacts would manifest. Nonetheless, it determined that the Project's largely short-term effects on vegetation and wildlife would not result in cumulative long-term impacts, even when added to the SRL's potentially greater impacts, which would in any event be controlled by state regulators. FERC similarly concluded that the Project's contribution to cumulative impacts on land use would minimal, given that only a small portion of the land permanently impacted by the Project would be forested, compared to the varied and more expansive terrain impacted by the miles-long SRL. Based on its finding that "each project would be designed to avoid or minimize impacts on water quality, forest, and wildlife resources," and given the Project's expected "temporary and minor effects," FERC concluded that the Project "would not result in cumulative impacts." App. 1465, 1474. The petitioners complaint is not that the .25 mile area was incorrect, but that FERC failed to take full account of all the environmental impacts across the entire span of pipelines other than the project under review-impacts far afield from the geographic area impacted by the Project-merely because those pipelines will ultimately be part of the same network as that served by the Project. To echo the Court of Appeals for the District of Columbia Circuit, such an expansive reading of the cumulative impacts requirement "draws the NEPA circle too wide for the Commission," which need only review impacts likely to occur in the area affected by the project under FERC review. Sierra Club, 827 F.3d at 50. In this case, notwithstanding its determination-uncontested on appeal-that the area impacted by the Project was of an exceptionally small size, FERC considered the cumulative impact of the totality of the SRL (and PennEast) pipeline and determined that their cumulative impact was insignificant. In light of the gratuitousness of FERC's extended cumulative impacts review, the petitioners' complaint-which concedes the sufficiency of FERC's analysis as it relates to wetlands-that FERC gave short-shrift to its consideration of the SRL's impact on vegetation, wildlife, and aquatic species fails to persuade us. The core of the petitioners' argument, that the SRL "as a major linear project" that will span "approximately 30 miles in length" will result in "considerable" environmental impacts along its path, Pet. Br. 20, itself defeats their claim that FERC had to consider all those various and oblique impacts when determining whether the SRL would cumulatively impact "the same area" as the project before it-involving no new pipeline construction and disturbing only the immediately surrounding area. Accordingly, FERC did not act arbitrarily or capriciously when it "acknowledge[d] that these resources may be affected" by the SRL but properly determined that "a detailed analysis" of the impacts along the entirety of the SRL was "not within the scope of our environmental analysis" for the jurisdictional Project under review. App. 53. By detailing and recognizing even environmental impacts outside of the zone impacted by the jurisdictional Project, FERC gave the petitioners' concerns the "serious consideration and reasonable responses" that NEPA requires. Tinicum Twp. v. U.S. Dep't of Transp., 685 F.3d 288, 298 (3d Cir. 2012). NEPA does not mandate exhaustive treatment of effects not plausibly felt in the Project's impact area. But even taken head-on, the petitioners' argument is unavailing. Contrary to the petitioners' claim, FERC did consider the SRL's impact on vegetation and wildlife, and given the Project's "minor ... impacts" determined that the cumulative impacts would be insignificant. App. 1469. FERC explicitly acknowledged that the SRL may affect the Pinelands National Reserve and concluded reasonably that any impacts would be mitigated by the responsible state agency overseeing the permitting process for that project. App. 53. FERC was correct to rely upon New Jersey authorities to do so, as opposed-as the petitioners would have it-to assuming the worst and piggybacking that hypothetical impact onto the otherwise compliant jurisdictional Project. See, e.g., EarthReports, Inc. v. FERC, 828 F.3d 949, 959 (D.C. Cir. 2016) (concluding that FERC reasonably relied upon the regulated parties' "future coordination with" other regulators in its NEPA assessment); Ohio Valley, 556 F.3d at 207-08 (upholding finding of no cumulative impact that was based partly on projected mitigation efforts because the mitigation was a condition of other permitting regimes to which the project was subject and thus was not speculative or conclusory); Friends of Ompompanoosuc v. FERC, 968 F.2d 1549, 1555 (2d Cir. 1992) (concluding that regulated parties' responsibility to work with local authorities on mitigation proposal constituted a "rational basis" for FERC finding of no significant impact). Again, NEPA requires no more than the fair consideration and reasonable responses that FERC provided to the petitioners' concerns. Furthermore, had FERC failed to give the specific attention that it did to the various types of impacts that the SRL might potentially cause, we would still approve their cumulative impact conclusions. Aside from their challenge to FERC's determination of the Project's well impacts (discussed below), the petitioners do not contend that FERC improperly concluded that, taken alone, the Project would not "significantly affect[ ] the quality of the human environment." App. 64; see also App. 1424 (concluding in the EA that "the impacts associated with th[e] Project can be sufficiently mitigated to support a finding of no significant impact"). And-again, besides the wells challenge-nothing in the petitioners' briefing suggests that FERC's detailed consideration of the Project's impacts to the area's geology; water resources; vegetation; wildlife; endangered species; cultural resources; land use, recreation, and visual resources; or air quality and noise was erroneous or wanting. FERC thus reasonably concluded in the EA that the Project's "minimal impacts" in its service area-relegated largely to "geological and soil resources" impacts and other temporary impacts-meant that the Project necessarily "would not result in cumulative impacts." App. 1465, 1469. We conclude that FERC did not abuse its discretion in reaching this decision. This is especially true considering that the impacts from the SRL that the petitioners allege FERC ignored are different than the limited kind of impacts that FERC concluded were likely to result from the Project and so are less likely to result in cumulatively significant impacts when considered together. See Council of Envtl. Quality, Considering Cumulative Effects Under the National Environmental Policy Act 8 (Jan. 1997) ("Cumulative effects need to be analyzed in terms of the specific resource ... being affected."). Given that the petitioners failed to show anything more than minimal impacts from the Project itself, they have failed to show that FERC acted arbitrarily or capriciously in determining that the Project would likewise not contribute to significant cumulative impacts, even taking into account the potential different impacts of the SRL on other areas within the Project's region. This conclusion is reinforced by the petitioners' own insistence that the SRL's construction is being held up by legal challenges, Pet. Br. 22-24, such that whatever impacts it causes will be temporally distinct from the Project's short-term impacts. See, e.g., Friends of Santa Clara River v. U.S. Army Corps of Eng'rs, 887 F.3d 906, 926 (9th Cir. 2018) (concluding that where an EIS reasonably finds that a project is unlikely to have an impact on a given population, that it is "also not arbitrary or capricious to conclude that the Project would not result in significant cumulative ... impacts" to that population); Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 113 (D.C. Cir. 2014) (upholding cumulative impact analysis finding "no significant cumulative impacts were expected" where the project under consideration "itself was expected to have minimal impacts" and-as is the case here-the two projects had distinct construction timelines). By addressing and expressly considering the specific concerns raised by the petitioners, FERC "fulfilled NEPA's goal of guiding informed decisionmaking" and ensured that FERC at least considered the wisdom of the agency action. Sierra Club, 867 F.3d at 1370-71 ; Sierra Club v. U.S. Dep't of Energy, 867 F.3d 189, 196 (D.C. Cir. 2017) ("Our job is simply 'to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.' " (quoting DRN I, 753 F.3d at 1312-13 ) ). The petitioners nevertheless argue that this low-impact project should be halted as a result of the possibly significant-but mostly different-in-kind-impacts of the nearby but later-in-time SRL. But this cannot be how the cumulative analysis inquiry operates. To hold otherwise would permit a jurisdictional project with little environmental impact to be torpedoed based only on a nearby non-jurisdictional project's significant impact, which FERC has no authority to control or mitigate. Such a rule would effectively condition the approval of pipelines operating under federal jurisdiction on the fastidiousness of pipeline companies operating in the same region under state authorities. Pipelines subject to lax state authorities or state environmental requirements that fall short of federal standards could, by mere proximity to a jurisdictional project, trump federal regulation and undermine FERC's careful balancing of environmental protection and public energy needs. Less pernicious, if a proposed state-governed project has potentially significant impacts but has not yet gone through the state's regulatory process (which could be expected to mitigate those impacts), such a project would essentially stay all federally regulated projects proposed in the area until the state agency either rejects the plan or approves a mitigation proposal. Congress surely did not intend for FERC's exclusive authority to control interstate pipeline construction to be so easily usurped by state regulators. Rather, the cumulative impacts analysis was meant to address instances where the jurisdictional project itself has minor environmental impacts that nevertheless fall short of stopping the project, but where-if added to the minor impacts from nearby non-jurisdictional projects-the cumulative impact of all the projects would be significant. See 40 C.F.R. § 1508.7 ("Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."); cf. id. § 1508.27 (setting out considerations for whether a project is "significant," including whether it "is related to other actions with individually insignificant but cumulatively significant impacts" (emphasis added) ). The analysis was not intended to combine the effects of a nearly no-impact project with those of a project with potentially serious impacts and then to bar them both. The relevant question-as FERC correctly understood-is rather whether, taking the non-jurisdictional impacts as a given, the addition of the jurisdictional project's impacts on top of the other projects' existing or anticipated impacts renders significant those projects' otherwise insignificant impacts. See 40 C.F.R. § 1508.7 ("Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable actions...." (emphasis added) ); Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1112 (9th Cir. 2015) ("An agency can take a 'hard look' at cumulative impacts ... by ... incorporating the expected impact of [a forthcoming] project into the environmental baseline against which the incremental impact of a proposed project is measured."); see also App. 1471 ("Only a small portion of forested land use would be impacted by the operation of the [Project]. These impacts would not contribute significantly to the cumulative impacts of the other projects in the region. Since the ... [SRL] include[s] a linear pipeline, [it] would result in greater temporary and permanent impacts in acreage and affect a variety of land uses."). In other words, the analysis looks at the marginal impact of the jurisdictional project when added to the non-jurisdictional projects' impacts, and asks whether the addition of the project under review affects a meaningful increase in the projected environmental impacts. See, e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004) ; Landmark West! v. U.S. Postal Serv., 840 F.Supp. 994, 1011 (S.D.N.Y. 1993), aff'd, 41 F.3d 1500 (2d Cir. 1994) (explaining that the cumulative impacts analysis requires "the consideration of the foreseeable actions of others as background factors, but does not require that the impacts of others' actions be weighed in assessing the significance of [the] action[ under review]. Rather, the [agency] need weigh only the marginal impacts of its own actions."). Where the other projects' impacts are themselves already significant or greatly outweigh the jurisdictional projects' impacts, such that the jurisdictional project will not meaningfully influence the extent of the already significant environmental impacts, the cumulative impacts test is inapposite. Were this not so, a single proposed project with a significant projected impact would preempt any other development-even no-impact or impact-reducing projects-regardless of whether the proposed project ultimately will come to fruition or have those expected impacts. Plainly, such an application of the cumulative impacts analysis is unreasonable and unwarranted, and we reject it. We conclude that FERC adequately addressed the Project's cumulative impacts. 3. Potable Well Impacts The petitioners' final NEPA-based claim regards FERC's conclusion that the Project's construction would not significantly impact the water quality of wells or cisterns in the service area. In its EA, FERC determined that "[m]inor, temporary impacts on groundwater infiltration could occur as a result of tree, herbaceous vegetation, or scrub-shrub vegetation clearing" around Station 203 during its construction, but that Transco would thereafter "restore and revegetate cleared areas to pre-construction conditions to the maximum extent practicable." App. 17-18. The EA continued that, in the event that groundwater is "encountered during construction," Transco would adhere to a series of mitigation measures, which would ensure that "impacts on groundwater would be adequately minimized." App. 18. Although reaching this general conclusion about the risk of groundwater impacts as a result of the Project, FERC made no specific finding about the impacts to any particular wells or cisterns "within 150 feet and up to one mile" from the Project, because at the time of the EA, neither FERC nor Transco had identified any such resources. App. 17. Accordingly, the particular finding that FERC did not "anticipate any significant impacts on cisterns, wells, or septic systems in the Project areas" was based most directly on FERC's understanding that those resources simply did not exist. Transco and several commenters subsequently notified FERC that there were numerous private wells in the project area. Nevertheless, based on additional assurances from Transco that it would remedy any damage or disruption to the water supply-and without revising the EA or identifying the specific number of potentially impacted wells-FERC issued Transco the certificate, subject to additional monitoring and mitigation conditions. These included the requirement that Transco identify and file the locations of all private wells in the Station 203 project area prior to beginning construction; conduct "pre- and post-construction monitoring of well yield and water quality"; and report to FERC any complaints it receives from well owners and how the complaints were resolved. App. 56. Some of the petitioners challenged the propriety of the certificate, arguing that the underlying assessment of the impact on wells was necessarily insufficient given that it was made without regard to the number of impacted wells. In denying the motion for rehearing, FERC rejected this claim, asserting that the certificate's requirements that Transco identify and monitor the wells, and Transco's promise to "minimize and remediate impacts" and "to repair, replace, or provide alternative sources of potable water" in the event of more permanent impacts, "appropriately identify and mitigate any potential impacts to groundwater resources." App. 87. On appeal, the petitioners in large part renew the challenge levied before FERC. They add that even if FERC were not absolutely required to identify the number of affected wells, its proposed mitigation plan is inadequate because: (1) it cannot effectively be enforced, and (2) because without knowing how many wells are potentially impacted, it is impossible to determine whether the proposed mitigation plan will suffice. The petitioners contend that FERC's "no significant impacts" conclusion was therefore arbitrary and capricious because it was not based on sufficient evidence. Because we conclude that FERC sufficiently established the efficacy of the proposed mitigation plan, we will not disturb its conclusion that the Project's groundwater impacts-if any-will not be significant. When an agency's "proposed mitigation measures [are] supported by substantial evidence, the agency may use those measures as a mechanism to reduce environmental impacts below the level of significance." Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 17 (2d Cir. 1997). Mitigation measures will be deemed "sufficiently supported" where "they are likely to be adequately policed," such as where the mitigation measures are included as mandatory conditions in a permit. Id.; Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 955-56 (9th Cir. 2008) (explaining that an " 'agency is not required to develop a complete mitigation plan detailing the precise nature ... of the mitigation measures[,]' so long as the measures are 'developed to a reasonable degree.' " (quoting Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001) ) ). Nor must the proposed mitigation be included in the original EA in order to pass muster under NEPA. If FERC in its certificate order addresses the commenters' concerns about the adequacy of the EA's analysis and clearly articulates its mitigation plan therein, it takes "the requisite 'hard look' at the impact of the ... Project on the environment." DRN II, 857 F.3d at 401 (quoting NRDC v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) ). This is because NEPA's "purpose is not to generate paperwork-even excellent paperwork-but to foster excellent action" and to "[e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. § 1500.1 ; Kleppe, 427 U.S. at 409, 96 S.Ct. 2718 ("By requiring an impact statement Congress intended to assure [consideration of the environmental impact] during the development of a proposal...."). The command to conduct an EA is not an end in itself, but a means to achieve informed decision-making, and reviewing courts should not elevate the form of the analysis over its substance by requiring that the totality of the relevant information be included in the EA in the first instance. "The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious," Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), not to police precisely how-or in what form-the agency engages in the requisite analysis. See, e.g., DRN II, 857 F.3d at 396 (explaining that courts should not "flyspeck" FERC's NEPA analysis and should defer to its expertise "so 'long as the agency's decision is fully informed and well-considered' " (quotation marks omitted) (first quoting Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 2015), then quoting Hodel, 865 F.2d at 294 ) ). Where the EA fails to address fully a specific issue but the record makes clear that the agency and public were apprised of the deficiency and that the agency sufficiently considered the matter before making a final decision or permitting actions to be taken, it has fulfilled NEPA's procedural mandate. FERC determined in the EA that groundwater effects were expected to be temporary, limited, and controlled by Transco's adoption of prophylactic measures to limit sediment discharge. After it learned of the wells' existence, FERC imposed supplementary measures to mitigate and remedy any damage to private wells in the project area, along with a reporting framework to ensure Transco's compliance. We conclude therefore that the record establishes that FERC adequately considered the potential impact to the wells, responded appropriately to the concern, and reasonably concluded that in light of its intervention, any impact would be insignificant. Given that FERC in the EA had already reached a reasoned conclusion regarding the intensity of the expected effects of the construction-which it deemed to be minor and transient-its failure to detail fully the number of wells potentially impacted by this limited impact is insufficient to render its findings arbitrary and capricious. The petitioners do not contend that FERC underestimated how the construction would impact a well in the project area, but only that it has not confirmed how many wells this uncontested calibration would disturb. FERC could reasonably conclude that a consequence whose intensity was unlikely to significantly impact any one resource was likewise unlikely to significantly impact additional-but distinct-instances of that same resource. This case is therefore unlike the Babbitt case cited by the petitioners, in which the Court of Appeals for the Ninth Circuit rejected the agency's EA that made a no significant impact finding without articulating the expected intensity or expected consequences of the projected environmental effects. See 241 F.3d at 732. The Babbitt case involved the impact of growing cruise ship traffic in the Glacier Bay. The agency recognized that expanded traffic would increase the level of underwater disturbance, the risk of collision with sea life, and the risk of oil spills, and acknowledged that the intensity and effects of such increases on the sea life were "unknown." Id. at 729. Nevertheless, the agency asserted that, with the proposed mitigation, the action would have no significant effect on the environment. Id. In rejecting the sufficiency of the agency's analysis, the court explained that the EA's uncertainty over the intensity of the projected environmental effects necessitated the preparation of the more comprehensive environmental impact statement. Id. at 731-32. Given the agency's failure to quantify the likely intensity or effect of the action, and the agency's failure to impose mandatory mitigation conditions as part of the EA, the court likewise rejected the agency's assertion that its mitigation plan could adequately control these unknown effects. Id. at 734-36. The issue in Babbitt was not that the agency did not know, for instance, how many sea lions would be impacted by the traffic increase, but rather that it did not know the intensity of impact in the first place. We recognize that in certain circumstances-such as where the intensity of the impact is expected to be moderate or significant-the failure to identify the number of species or resources impacted could render the EA insufficient because the magnitude of gross harm would be too uncertain. That is not the case here, however, where FERC identified the intensity of the impacts and concluded that they would be minor and temporary. Even without knowing the precise number of wells potentially impacted, FERC could reasonably conclude that the total environmental impact of such low-intensity and fleeting effects would be insignificant, especially when accounting for the mandatory mitigation and remedial conditions imposed upon Transco in the certificate, which FERC has assured the Court that it will enforce. See id. at 735 (recognizing that even where mitigation procedures are not fully developed, "the imposition of special conditions, enforced through a permit," and adequately supervised could "ensure[ ] that the measures would be enforced in a manner that properly reduced negative environmental impact"). We therefore reject the petitioners' claim that FERC's treatment of the well impacts ran afoul of NEPA. C. Need for the Project FERC must determine that the proposed project "is or will be required by the present or future public convenience and necessity," 15 U.S.C. § 717f(e), prior to granting a certificate of public convenience and necessity under the NGA. This inquiry involves two steps. First, FERC asks whether "the project will 'stand on its own financially' because it meets a 'market need.' " Sierra Club, 867 F.3d at 1379 (quoting Myersville, 783 F.3d at 1309 ). The point of this step is "to ensure that a project will not [need to] be subsidized by existing customers." Myersville, 783 F.3d at 1309. This element can accordingly be established by the existence of contracts subscribing to the capacity of the project. Id. Second-if market need is shown-FERC will then "balance the benefits and harms of the project, and will grant the certificate if the former outweigh the latter." Sierra Club, 867 F.3d at 1379. Whether to grant a certificate is "peculiarly within the discretion of the Commission," Myersville, 783 F.3d at 1308 (quoting Okla. Nat. Gas Co. v. Fed. Power Comm'n, 257 F.2d 634, 639 (D.C. Cir. 1958) ), and a reviewing court's task is limited to ensuring that "the decision was based on a consideration of the relevant factors" and not a result of "a clear error of judgment." Id. (quoting ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir. 2002) ). FERC's findings of fact-such as a finding of need-are conclusive if supported by substantial evidence. 15 U.S.C. § 717r(b). Applying the above criteria in this case, FERC found "a strong showing of public benefit" based upon NJNG's "binding precedent agreement" to purchase 100 percent of the Project's capacity that outweighed the Project's "minimal adverse impacts," and so granted the certificate. App. 42. The petitioners challenge this finding as arbitrary and capricious because FERC "considered only Transco's asserted need for the Project, ignoring other factual developments" that the petitioners assert "demonstrated that the need was speculative." Pet. Br. 22. Specifically, the petitioners argue that regulatory and legal challenges to both the SRL and PennEast created a "very real possibility that neither" project would be built, which in the petitioners' view would "obviat[e] the need for the Project." Id. FERC rejected this argument in denying the petitioners' motion for rehearing, noting that NJNG's contract was itself sufficient to establish need and that the Project was not reliant on the existence of either the PennEast or SRL. Again, we agree. The petitioners' argument that the need for the Project is speculative misapprehends the purpose of the analysis, the focus of which is on the objective existence of a market need, not the precise mechanics of fulfilling that need. See, e.g., Sierra Club, 867 F.3d at 1379. A contract for a pipeline's capacity is a useful indicator of need because it reflects a "business decision" that such a need exists. See App. 76. If there were no objective market demand for the additional gas, no rational company would spend money to secure the excess capacity. Cf., e.g., Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 884 (9th Cir. 1982) (noting that, in the ordinary course, a company's "legitimate business decisions" will not be against their self-interest). In this case, FERC reasonably relied on NJNG's binding contract to utilize all of the Project's capacity-a contract that was not contingent on the completion of either the SRL or PennEast -as evidence of the market need and proof that the Project will be self-supporting. As numerous courts have reiterated, FERC need not "look[ ] beyond the market need reflected by the applicant's existing contracts with shippers." Myersville, 783 F.3d at 1311 (quoting Minisink, 762 F.3d at 111 n.10 ). Even were this not the case, the petitioners' view of the need is myopic. The need is not, as they contend, to provide capacity for gas to reach the SRL; this is the means of fulfilling the need, not the need itself. Rather, the "need" is for the provision of "enhanced reliability and resiliency to NJNG's service territory in Monmouth and Ocean Counties," App. 790, which is why NJNG is building the SRL and why it is seeking additional capacity from Transco. This need exists objectively, and independently of the SRL. If for whatever reason NJNG cannot build the SRL as it is proposed, this need for "enhanced reliability and resiliency" will endure, and the Project will still be necessary to meet that need by providing additional capacity for the southward supply of natural gas. Nor, as we explained above, is the Project reliant on PennEast's completion. Thus, FERC correctly determined based on substantial evidence that even if the SRL or PennEast were not built, the Project would still serve the public need. Because the petitioners do not challenge FERC's balancing at step two of the analysis-regarding which FERC is afforded "broad discretion," Minisink, 762 F.3d at 111 -we conclude that FERC properly granted the certificate to Transco. D. Good Faith Notice The petitioners' next challenge-that, contrary to the requirements of 18 C.F.R. § 157.6(d)(1), Transco failed to provide petitioner Bordentown with notice of Transco's application-likewise fails. Section 157.6(d)(1) required Transco to "make a good faith effort to notify all affected landowners and towns" of its application, within three days of FERC's March 13, 2015 filing of the Notice of Application regarding the Project. We discern no basis in the record to disturb FERC's conclusion that Transco did so. Most fundamentally, the petitioners' claim is unsupported by any relevant citation to the record, and is belied by FERC's explicit finding in its order granting the certificate that Transco complied with the "intent of the landowner notification requirements." App. 44. This finding, like all FERC fact-finding, is conclusive where supported by substantial evidence. FERC's determination is supported by Transco's submission, filed March 24, 2015, that it had "mailed notices to all affected landowners" and re-mailed to new addresses the notices that were returned undelivered, FERC Docket CP15-89, Submittal 20150324-5228 (Mar. 24, 2015), and FERC's own investigation confirming the submission's accuracy, App. 44, 96. By contrast, the petitioners' claim that Bordentown was not given notice is only a representation in their appellate brief, which does not constitute record evidence, see United States v. Genser, 582 F.2d 292, 311 (3d Cir. 1978), and is in fact contradicted by the record, see, e.g., App. 1735-38 (letters dated September and October 2015 in which Transco's counsel discusses the Project with Bordentown's counsel, and which noted discussions from as early as August 2015). We therefore defer to FERC's fact-finding and conclude that Transco satisfied their good faith notice requirements. In addition, FERC has long maintained that notice published in the Federal Register satisfies the Commission's notice requirements. See App. 97. Given the deference owed to an agency's interpretation of its own regulations, see, e.g., Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less, 768 F.3d 300, 313 (3d Cir. 2014) ; Marseilles Land & Water Co. v. FERC, 345 F.3d 916, 920 (D.C. Cir. 2003) (explaining that "agencies are entitled to great deference in the interpretation of their own rules" unless the interpretation is "plainly erroneous" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ) ), FERC's view that its statutory notice requirement was satisfied by the notice of the application published in the Federal Register is conclusive of this claim. E. Green Acres Act The petitioners' penultimate claim is that FERC erred by granting Transco the certificate because it will permit Transco to construct the Project on property subject to regulation under New Jersey's Green Acres Act, without first seeking state-level approval to divert the property to non-Green Acres uses. This argument is facile because the petitioners entirely fail to articulate what portion of its governing law was violated when FERC neglected to seek New Jersey state approval before granting the certificate of public necessity, the authority over which Congress exclusively vested in FERC. Although the parties primarily dispute whether the Green Acres Act is preempted or whether FERC addressed sufficiently the Act's substantive concerns before granting the certificate, we need not even get that far. Nothing in the NGA, NEPA, or its implementing regulations require FERC to do anything more than at most consider the proposed land-use and its alternatives. There is certainly no requirement that prior to issuing a certificate, FERC pass through the procedural hoops that the state places upon the alienation of land subject to its authority. The petitioners' demand that FERC should have proceeded with "caution" in light of New Jersey's exacting regulatory scheme, Reply 16, while laudable, finds no support in the text of FERC's regulations. Given that FERC did not have to receive New Jersey's approval prior to its issuance of the certificate, we cannot conclude that it erred by failing to do so with regard to the Green Acres Act. If anything, the NGA itself suggests that FERC need not concern itself with the legal technicalities concerning-or the ownership status of-land upon which FERC determines that the placement of a pipeline would be in the public interest. The NGA, 15 U.S.C. § 717f (h), affords certificate holders the right to condemn such property, and contains no condition precedent other than that a certificate is issued and that the certificate holder is unable to "acquire [the right of way] by contract." Two salient points emerge. First, this section places sole responsibility on the certificate holder-not FERC-to secure the legal right to utilize the land at issue. Second, there is no requirement that the certificate holder first attempt to acquire the property via the state's preferred process: if the holder cannot reach an arm's-length agreement with the property owner, then the holder may proceed under § 717f(h). To the extent, then, that any preemption is squarely at issue here, the NGA already speaks pellucidly about the hierarchy of land rights, and it is entirely silent about any requirement that the state's existing regulations concerning the land be substantively complied with or respected. Cf. Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 243-45 (D.C. Cir. 2013) (recognizing that the NGA preempts state zoning and land use requirements, save for those enacted under the Clean Air Act, CWA, or Coastal Zone Management Act (citing 15 U.S.C. § 717b(d) ) ). Finally, we would be remiss not to point out that although the petitioners levy their challenge against FERC's issuance of the certificate, the real target of their claim is actually the Township of Bordentown's interpretation thereof. FERC, in issuing the certificate, did not specifically opine that any particular provision of the Green Acres Act is preempted. See App. 63 (explaining generally in the certificate order that state requirements that "prohibit or unnecessarily delay Transco from meeting its obligations under this Order" are "preempted by the certificate"). To the extent that Bordentown feels compelled to ignore the Green Acres Act as a result of FERC granting the certificate, then it is their (allegedly overbroad) reading of FERC's authority that is to blame. If, conversely, Bordentown concludes that the granting of the certificate does not override the applicability of the Green Acres Act, then "no harm, no foul," as FERC would not-in the petitioners' telling-have exceeded its authority by granting the certificate notwithstanding its failure to consider the Green Acres Act. Put simply, "[u]nder either interpretation, the certificate order has only whatever preemptive force it can lawfully exert, and no more." Myersville, 783 F.3d at 1321. Because FERC, when issuing the certificate, did not "purport to compel" Bordentown to undertake an act inconsistent with the NGA, and because "no provision of the [NGA] identified by [the p]etitioners barred [FERC] from issuing a conditional ... certificate under these circumstances," the petitioners' Green Acres Act challenge fails. Id. F. Cumulative Error The petitioners finally ask that we grant the petition based on the cumulative effect of FERC's various alleged errors. Under the cumulative error doctrine-which we have to date applied only in the context of criminal trials-a court "may determine that, although certain errors do not require relief when considered individually, the cumulative impact of such errors may warrant a new trial." SEC v. Infinity Grp., 212 F.3d 180, 196 (3d Cir. 2000). We need not decide whether the cumulative error doctrine applies in this type of case, because even assuming its applicability, our conclusion that none of FERC's challenged decisions were individually erroneous forecloses a cumulative error claim. See id. IV. Challenges to the NJDEP's Order We now turn to the petitioners' challenge to the NJDEP's conclusion that the New Jersey regulations establishing the availability of adjudicatory hearings to contest the grant of water quality permits to an interstate pipeline project were preempted by federal law (docket No. 17-3207). As noted above, we conclude that the NJDEP misunderstood the scope of the NGA's assignment of jurisdiction to the federal Courts of Appeals. Because this erroneous view was the only articulated reason for its denial of the petitioners' hearing request, we will remand to the NJDEP for reconsideration of the petitioners' request and to give the NJDEP the opportunity to in the first instance address the petitioners' substantive challenges to the provision of the permits. A. Jurisdiction Under the NGA We begin with the language of the federal statute that the NJDEP purports divests it of jurisdiction to grant adjudicatory hearings arising from permit decisions affecting interstate natural gas pipelines. Under the NGA: The United States Court of Appeals for the circuit in which a facility subject to section 717b of this title or section 717f of this title is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a ... State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit, license, concurrence, or approval ... required under Federal law.... 15 U.S.C. § 717r(d)(1). By the plain language of the statute, the conferral of "original and exclusive jurisdiction" to the federal Courts of Appeals is limited to "civil action[s] for the review of an order or action of a Federal agency ... or State administrative agency." Id. The term "civil action" is not defined either in § 717r or anywhere in the NGA, so we must "look to the common meaning of the term in deciding whether 'civil action' encompasses" a state administrative proceeding, as the NJDEP claims. Schindler v. Sec'y of Dep't of Health & Human Servs., 29 F.3d 607, 609 (Fed. Cir. 1994). Our review assures us that a "civil action" refers only to civil cases brought in courts of law or equity and does not refer to hearings or other quasi-judicial proceedings before administrative agencies. The Supreme Court has recognized that "the word 'action' often refers to judicial cases, not to administrative 'proceedings,' " West v. Gibson, 527 U.S. 212, 220, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999), and has parsed statutes based on Congress's understanding of the distinction between a civil "action" in a court and an administrative "proceeding" at the agency level, New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-62, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980). This Court, for its part, has held in the context of interpreting a statute providing for attorneys' fees in taxpayer disputes against that IRS that the even broader term " 'civil action or proceeding' includes only judicial proceedings and not administrative actions." Toner v. Comm'r, 629 F.2d 899, 902 (3d Cir. 1980). Our sister Courts of Appeals have reached similar conclusions. In Schindler, for instance, the Court of Appeals for the Federal Circuit noted that "[u]nder Fed. R. Civ. P. 3, a 'civil action' is commenced by the filing of a complaint with the court," and quoted Stroud's Judicial Dictionary's definition of " 'civil action' as 'litigation in a civil court for the recovery of individual right or redress of individual wrong.' " 29 F.3d at 609-10. In another case, that court explicitly stated that a hearing "at the administrative level" was not "in a 'civil action.' " Levernier Const., Inc. v. United States, 947 F.2d 497, 502 (Fed. Cir. 1991) ; see also, e.g., Howard v. Pritzker, 775 F.3d 430, 432 (D.C. Cir. 2015) (distinguishing, in the Title VII context, between the "final administrative action" and the subsequent "civil action" consisting of "a de novo court proceeding"). Black's Law Dictionary similarly defines an "action" as a "civil or criminal judicial proceeding." Black's Law Dictionary 31 (8th ed. 1999); see also Ballentine's Law Dictionary 202 (3d ed. 1969) (defining a "civil action" as "any proceeding in a court of justice by which an individual pursues that remedy which the law affords him"); Bouvier Law Dictionary Desk Edition (2012) (defining a "civil action" as "[a]ll actions in law or equity that are not criminal actions" and noting that it is "the generic term for all lawsuits"). The Supreme Court has long recognized that administrative hearings, even to the extent that they in some ways mirror an adversarial trial, do not constitute proceedings in courts of law or equity. See, e.g., Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) (holding that "procedural due process in the administrative setting does not always require application of the judicial model"); Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (explaining that the purpose of the section of the NLRA at issue there, which freed an administrative tribunal from applying the rules of evidence required "in courts of law and equity," was to "free administrative boards from the ... technical rules" inherent "in judicial proceedings"). And notably, the New Jersey Supreme Court has explicitly held, in upholding the constitutionality of an administrative body tasked with adjudicating allegation of unlawful discrimination, that administrative adjudication "involves no ... intrusion upon subject matter jurisdiction of the judicial branch over traditional causes of action at law or in equity." David v. Vesta Co., 45 N.J. 301, 212 A.2d 345, 359 (1965). Viewed in light of both federal and New Jersey authority, and barring any specific statutory language to the contrary, a hearing before an administrative body is not a "civil action." Accordingly, such hearings are not impacted by § 717r(d)(1) 's assignment to the federal Courts of Appeals the exclusive jurisdiction over civil actions challenging a state agency's permitting decision made pursuant to federal law. Because, as relevant here, the NGA explicitly permits states "to participate in environmental regulation of [interstate natural gas] facilities" under the CWA, Delaware I, 833 F.3d at 368, and only removes from the states the right for their courts to hear civil actions seeking review of interstate pipeline-related state agency orders made pursuant thereto, the NGA leaves untouched the state's internal administrative review process, which may continue to operate as it would in the ordinary course under state law. That § 717r(d)(1) 's scope is limited to judicial review of agency action, and does not implicate or preempt state agency review of the agency's own decision, is also apparent from the statute's structure. For example, § 717r(b) -which is titled "Review" and discusses appeals to the Courts of Appeals from a FERC order-allows a party "aggrieved by an order issued by the Commission" to "obtain a review of such order" in the Courts of Appeals. In contrast, § 717r(d)(1) -which is titled "Judicial review"-grants "original and exclusive jurisdiction over any civil action for the review of an order or action of a ... or State administrative agency." (emphasis added). Congress therefore clearly understood the difference between establishing direct judicial "review" over agency action (supplanting any alternative intra-agency process) and creating an exclusive judicial forum in the federal Courts of Appeals for a "civil action" challenging an agency's decision-making (separate from the agency's own internal review process). As opposed to affirmatively installing federal courts to oversee the administrative process, as it did in § 717r(b) by placing the "review" of all FERC action in the Courts of Appeals, Congress did not interject federal courts into the internal workings of state administrative agencies. See Berkshire Envtl. Action Team, Inc. v. Tenn. Gas Pipeline Co., 851 F.3d 105, 112-13 (1st Cir. 2017) ("We see no indication that Congress ... intended to dictate how (as opposed to how quickly) [the state agency] conducts its internal decision-making before finally acting."). The myriad "state procedures giving rise to orders reviewable under § 717r(d)(1) may (and undoubtedly do) vary widely from jurisdiction to jurisdiction," some of which may permit intra-agency review and others which may not. Id. at 109. Perhaps in recognition of this diversity, § 717r(d)(1) merely establishes that a party who seeks judicial review of a state agency decision via a collateral civil action challenging the correctness of the decision, may only bring that civil action directly to the federal Courts of Appeals, not the state courts or federal district courts. Finally, although not squarely faced with this issue, this Court and the Court of Appeals for the First Circuit have implicitly held that state administrative review of interstate gas permitting decisions is not preempted by the NGA. In our recent opinion in Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection, Nos. 16-2211, 16-2218, 16-2400, 2018 WL 4201626 (3d Cir. Sept. 4, 2018) (" Delaware III"), as well as in Delaware II and Berkshire, the courts considered whether § 717r(d)(1) includes a finality requirement such that the federal Courts of Appeals lack jurisdiction to hear the case if the state makes available additional administrative remedies before the permitting decision takes effect. If the NJDEP's and Transco's position in this case were a correct reading of the statute (that "any civil action for the review" in § 717r(d)(1) includes administrative review), then those courts would not have considered whether administrative review was an available or mandatory remedy in the state's administrative scheme, because the NGA would have cut off any state review other than the initial decision, making that decision by default final. In Delaware II, however, this Court assumed that the petitioners could have sought an appeal to the Pennsylvania Environmental Hearing Board ("EHB") if they had done so within the time period provided in the Pennsylvania statute. See 870 F.3d at 177. And in deciding the issue left open by Delaware II, we concluded in Delaware III that the Pennsylvania DEP's issuance of a Water Quality Certification was final and appealable to this Court "[n]otwithstanding the availability of an appeal to the EHB." Delaware III, slip op. at 18. Although reaching the opposite conclusion in regards to the finality of the Massachusetts permitting process, the court in Berkshire determined in light of that state's administrative scheme that it did not have jurisdiction to hear the case until the state environmental agency held the adjudicatory hearing that petitioners had sought, and issued an order thereupon. See 851 F.3d at 112-13. If the plain impact of § 717r(d)(1) was to remove from the states any and all review over the issuance of such permits, those cases would not have proceeded based on the understanding-express or implicit-that state administrative review was available if desired. The only plausible conclusion to draw from these cases and from the text of the statute itself is that § 717r(d)(1) does not preempt state administrative review of interstate pipeline permitting decisions. B. New Jersey Law Having decided that the NGA does not preempt the regular operation of New Jersey's administrative review process, we turn next to the determination of whether the NJDEP's refusal to afford the petitioners an adjudicatory hearing based on the NJDEP's erroneous interpretation of the NGA amounts to a violation of New Jersey law. As explained below, we conclude that it does. Federal courts reviewing state agency action afford the agencies the deference they would receive under state law. See, e.g., Delaware II, 870 F.3d at 181. Accordingly, we look to New Jersey law to determine the prism of our review of the NJDEP's denial of the petitioners' request for an adjudicatory hearing. Similar to review under the APA, judicial review of New Jersey administrative agency decisions is generally limited to a determination of whether the decision "is arbitrary, capricious or unreasonable," but no deference is owed to "the agency's interpretation of a statute or its determination of a strictly legal issue." In re Taylor, 158 N.J. 644, 731 A.2d 35, 42 (1999) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 312 A.2d 497, 501 (1973) ). Likewise, we afford no deference to a state agency's interpretation of federal law, which we instead review de novo. See, e.g., MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 516 (3d Cir. 2001). The NJDEP regulations implementing the FWPA allow a party to request an adjudicatory hearing to challenge the grant of an FWW permit. The FWPA explicitly provides for the availability of such a hearing where the requestor is the permit seeker, N.J. Stat. Ann. § 13:9B-20, and-as recognized in the NJDEP regulations, see N.J. Admin. Code § 7:7A-21.1(e) (FWW) ; § 7:14A-17.2(c) & (f) (dewatering) -the New Jersey Administrative Procedure Act recognizes the rights of "[p]ersons who have particularized property interests or who are directly affected by a permitting decision" to such a hearing, N.J. Stat. Ann. §§ 52:14B-3.1(b) & 3.2(c). Under its regulations, when a third party asserting such a property interest seeks an adjudicatory hearing regarding a permit, the NJDEP has the responsibility in the first instance to either deny the request-and in doing so to provide the reasons for the denial-or to approve the request and to forward the matter to the Office of Administrative Law, where an ALJ will hear the dispute and then issue a report and recommendation for the consideration of the NJDEP Commissioner. N.J. Admin. Code § 7:7A-21.1(f)-(g), 7:14A-17.5(b) ; see also N.J. Stat. Ann. § 52:14B-10(a) - (c). Although the FWW regulations do not articulate a standard by which the agency must decide whether to approve or deny a petition for an adjudicatory hearing, the denial of a request for a hearing on a dewatering permit is limited to an enumerated list of reasons. N.J. Admin. Code §§ 7:7A-21.1(f) ; 7:14A-17.4. In either case, the NJDEP must clearly articulate the reasoning behind its decision so that a reviewing court can determine whether the decision was in error. See id. §§ 7:7A-21.1(f); 7:14A-17.4(e); see also In re Authorization For Freshwater Wetlands Statewide Gen. Permit 6, Special Activity Transition Area Waiver For Stormwater Mgmt., Water Quality Certification, 433 N.J.Super. 385, 80 A.3d 1132, 1147 (2013) ; Atl. City Med. Ctr. v. Squarrell, 349 N.J.Super. 16, 793 A.2d 10, 16 (2002). Here, the NJDEP denied the petitioners' request for an adjudicatory hearing on the FWW and dewatering permits on the sole basis that, pursuant to the NGA, the federal Courts of Appeals have exclusive jurisdiction to hear any challenges to final decisions granting permits, and accordingly that the provisions permitting an adjudicatory hearing to contest such decisions were preempted. Because we conclude that the NJDEP's reading of the NGA was erroneous as a matter of law and that the NGA does not preempt the regular progression of intra-agency review of a permitting decision, the NJDEP's denial of the petitioners' request for an adjudicatory hearing based on that misunderstanding was unreasonable and so cannot stand. The NJDEP and Transco urge that jurisdiction properly lies in this Court because the permit decision was final and because requiring exhaustion of state remedies would run counter to the NGA's purpose of streamlining natural gas permits. This may be so. However, the determination of whether we may assert jurisdiction immediately upon a permitting decision does not answer whether the agency is simultaneously stripped of jurisdiction to provide an administrative adjudicatory hearing in the ordinary course. Our limitation to considering only final orders, see Delaware III, slip op. at 10, is a constraint on our own jurisdiction, not a determination that we are the only forum available to consider final orders. Indeed, if the NJDEP and Transco are correct that the NJDEP orders at issue here were final when issued, see Transco Br. 24; NJDEP Br. 10, 12, New Jersey clearly provides for a 30-day window to seek an adjudicatory hearing to contest that final order. We therefore do not necessarily disagree with the NJDEP and Transco's assertion that the petitioners could have immediately appealed the NJDEP's orders to this Court. Nor do we disagree that, assuming the petitioners sought immediately to bring such a civil action-and again putting aside the question of finality-this Court would be the only judicial body to which such a challenge could be brought. Our holding is only that (1) instead of bringing a civil action in this Court, the petitioners were entitled under New Jersey law to have alternatively first sought an intra-agency adjudicative hearing, and (2) the NJDEP violated New Jersey law by unreasonably denying the petitioners' request for such a hearing based on its misreading of the NGA and this Court's precedent. In sum, although the plain language of the NGA strips state courts-as well as federal district courts-of jurisdiction to hear civil actions challenging an administrative agency's permitting decision regarding interstate natural gas pipelines, it does not purport to meddle with the inner workings of the agency's approval process or to insert federal appellate courts arbitrarily into the state administrative scheme. The language of the statute merely requires that judicial challenges to the outcome of the administrative process come straight to us. If, however, a state allows for an internal administrative review of a permitting process, such a process does not contravene the NGA. Because the NJDEP denied the petitioners' request for an adjudicatory hearing based on its belief to the contrary, we will remand to the agency with instructions to reconsider the petitioners' request for a hearing in light of our clarification. In doing so, we express no opinion on the petitioners' ultimate entitlement to an adjudicatory hearing based on New Jersey law. V. Conclusion In light of the foregoing, we will deny in part and grant in part the petitions for review, and remand to the NJDEP for proceedings consistent with this opinion. All three petitioners challenge the New Jersey Department of Environmental Protection's actions, Docket No, 17-3207, but only the Townships challenge the Federal Energy Regulatory Commission's orders, Docket No. 17-1047. For convenience, we use "petitioners" interchangeably throughout the opinion to refer to both groups. Whereas the SRL-as a purely intrastate pipeline-would not be subject to FERC's jurisdiction or oversight, the PennEast pipeline, which will traverse Pennsylvania and New Jersey, would be. See 15 U.S.C. § 717(b) -(c). Transco also applied for and received a Flood Hazard Area Individual Permit and Flood Hazard Area Verification, but subsequently relinquished the Permit after being able to move the Project out of the area subject to it, and the petitioners do not challenge the provision of those permits on appeal. We note that it is not FERC, but the Environmental Protection Agency, that is tasked with administering the CWA, so FERC's views are not entitled to deference. See, e.g., Scafar Contracting, Inc. v. Sec'y of Labor, 325 F.3d 422, 423 (3d Cir. 2003). In so holding, we agree with the reasoning of the Court of Appeals for the District of Columbia Circuit in Del. Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017). The petitioners reply that nothing in the CWA "limit[s] the scope of covered permits to those [actions] that directly or immediately may result in a discharge" and that under the plain definition of "result"-meaning "a physical, logical, or legal consequence"-the certificate "which authorizes Transco's pipeline, may 'result' in a discharge." Reply 13-14 (quoting Black's Law Dictionary (10th ed. 2014) ). But given the express condition that Transco obtain all the required state permits before obtaining authorization to begin construction-which the petitioners do not contest is the only conduct that could proximately result in discharge-the certificate alone neither "logically" nor "legally" results in the consequence of a discharge. It is black letter law that an independent intervening act-here, the state permit and FERC's authorization to commence construction-severs the causal chain. See, e.g., Texas v. United States, 809 F.3d 134, 160 (5th Cir. 2015) (explaining that "the Supreme Court [has] held that an injury [is] not fairly traceable" to an action where the "independent act of a third party was a necessary condition of the harm's occurrence, and it was uncertain whether the third party would take the required step"), aff'd by an equally divided court, --- U.S. ----, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016). In summary, because no discharge-creating activity can commence without New Jersey independently awarding Transco with a Section 401 permit, no activities that may result in a discharge can follow as a logical result of just FERC's issuance of the certificate. Notably, only a few pages later in their brief, the petitioners again cite to page 887 of the appendix, but this time assert that the Project's "sole purpose was to connect one of [Transco's] existing pipelines to a new intrastate SRL pipeline to be constructed by NJNG." Pet. Br. 22. It goes without saying that the "sole purpose" of the pipeline cannot be both to connect to PennEast and to connect to the Transco Mainline. The Zone 6 pooling point is located north of Station 205 (where the gas would divert down Transco's Trenton-Woodbury lateral for delivery to NJNG at Station 203), which is itself located north of the point where PennEast is set to connect to the Transco Mainline. Because NJNG's contract with Transco makes no mention of PennEast, the petitioners' reliance on the Court of Appeals for the District of Columbia Circuit's rejection of an argument similar to the one FERC advances here in inapposite. In DRN I, the court accepted that proof of a project's "commercial and financial viability ... when considered in isolation" from the other projects that were allegedly being segmented was "potentially an important consideration in determining whether the substantial independent utility factor has been met," but concluded that the "shipping contracts in this case" were insufficient because the contracts themselves tended to show that the projects were in fact "interdependent." 753 F.3d at 1316 (emphasis added). Specifically, the court noted that the contract at issue calculated its rates by taking into account the costs and capacities of the other projects and had a provision explicitly allowing for a rate adjustment in the event of a the construction of one of the improperly segmented projects. Id. at 1317. These provisions highlighted the interconnectedness of the projects. Here, by contrast, Transco and NJNG's contract makes no mention of PennEast, the negotiated rate does not depend on the source of the gas, and the contract clearly establishes that NJNG is solely responsible for acquiring the gas supply. Unlike in Delaware Riverkeeper, then, the Project is financially independent of PennEast, because it will be paid for and utilized regardless of PennEast's existence. Under Delaware Riverkeeper's own framework, this evidence is an "important consideration" in the independent utility analysis. Id. at 1316. On this point, it is noteworthy that as of the time this case was submitted, the Project had been completed and placed into service, see FERC Docket CP15-89, Submittal 20180329-5212 (Mar. 29, 2018), whereas the PennEast pipeline had only just been approved by FERC, see PennEast Pipeline Co., 162 FERC ¶ 61,053 (2018). See generally, e.g., Town of Norwood v. New Eng. Power Co., 202 F.3d 408, 412 (1st Cir. 2000) (holding that courts may take judicial notice of "the underlying FERC proceedings"). That the Project is operational and transporting gas even though PennEast has not yet even begun construction shows conclusively that the Project is not reliant on PennEast's existence. Rightly so, given that the "determination of the size and location of the relevant geographic area 'requires a high level of technical expertise,' and thus 'is a task assigned to the special competency of' the Commission." Sierra Club, 827 F.3d at 49 (quoting Kleppe, 427 U.S. at 412, 96 S.Ct. 2718 ). The determination of whether a cumulative impacts analysis is required in the first place depends on a consideration of "the likelihood that a given project will be constructed"; "[t]he more certain it is that a given project will be completed, the more reasonable it is to require a[n] ... applicant to consider the cumulative impact of that project." Soc'y Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 182 (3d Cir. 2000) ; see also id. at 181 ("[T]he concept of 'cumulative impact' was not intended to expand an inquiry into the realm of the fanciful."). Here, the petitioners try to have it both ways. In arguing that FERC improperly determined that there was a public need for the Project, the petitioners accuse FERC of accepting Transco's "speculative" assertion of need given that "there is a very real possibility that ... the SRL will [not] go forward." Pet. Br. 22. Nevertheless, the petitioners simultaneously demand that FERC consider the worst-case scenario of environmental impacts from the SRL as part of its approval of the Project, without accounting for the state-mandated mitigation that would necessarily attach to any approved plan. But obviously, if the SRL's construction is at this point so speculative that it cannot be the basis of Transco's proof of public need, then FERC need not consider the hypothetical cumulative impacts of that speculative project. Especially where, as here, we have concluded that FERC was correct to segment the Project and the SRL, our precedent demands that it be "sufficiently certain that [the] other projects will be constructed" before an agency is required to include a cumulative impact analysis in its EA. Id. at 182. The petitioners' explicit contention that this certainty is lacking is itself a reason to reject their complaints about the sufficiency of FERC's cumulative impacts analysis. For instance, the petitioners argue that FERC failed to consider the "cumulative impacts on ... aquatic species" associated with the construction of the Project and the SRL. Pet. Br. 21. But the EA is clear that the Project "would not impact any waterways." App. 1445; see also App. 58 (reiterating that restrictions aimed at protecting certain fish species were inapplicable because "no surface waters will be affected by project activities"). Obviously, to the extent that the Project is expected to have no impact on aquatic species, it cannot incrementally impact whatever aquatic species are impacted by the SRL. Nor have the petitioners advanced any reason to believe that minor passing impacts to several individually owned wells would have cumulatively significant impacts. The petitioners assert that the mitigation measures are insufficient because Transco is not required to affirmatively report impacted wells and FERC cannot adequately impose remedial measures if Transco fails to comply. FERC reiterated in its order denying rehearing, however, that if Transco's post-construction testing showed decreased well yield or water quality, FERC has authority to require Transco to mitigate the impact. App. 88. FERC's clarification implies Transco's responsibility to inform FERC of any changes. Moreover, landowners can be expected to complain to Transco if there is a noticeable change in their well's yield or water quality, complaints which Transco is expressly required to pass on to FERC. If the impacts on the wells are so negligible that the landowner does not even notice them, then such impacts are-as FERC predicts will be the case-insignificant and do not require mitigation. Finally, the petitioners in their Reply brief do not challenge FERC's authority to enforce any required remediation, which we conclude is amply supported by the applicable federal legislation. See 15 U.S.C. § 717o (granting FERC the "power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions" of the NGA); id. § 717f ("The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require."); id. § 717t-1 (granting FERC the power to impose civil fines of up to $1 million per day for the violation of "any rule, regulation, restriction, condition, or order made or imposed by the Commission under authority of this chapter"). The petitioners concede that "the precedent agreements may be binding on NJNG" even if the SRL is not built, but curiously insist that this "does not mean the NJNG will remain obligated to continue with the precedent agreement if the SRL is not completed." Reply Br. 5 n.1. We discern no meaning to the word "binding" other than "having legal force to impose an obligation," Black's Law Dictionary (10th ed. 2014), and so fail to understand the petitioners' hypothetical in which a party to a binding agreement is nonetheless free to shirk its enforceable obligations thereunder. To the extent that the petitioners claim that the alleged failure to provide notice implicated their constitutional rights to Due Process and thus must be subjected to more exacting review, we note that the petitioners at the very least received constitutionally sufficient notice of Transco's project, as evidenced by their participation in the notice and comment period following the EA and their petitioning for rehearing. See All. Pipeline L.P. v. 4.360 Acres of Land, More or Less, 746 F.3d 362, 366 (8th Cir. 2014) (concluding that landowners "received notice 'reasonably calculated ... to apprise' them of [the company's] FERC application" where, in the months between the company's application and FERC's order granting the certificate, the company negotiated with the landowners to seek an easement and filed a lawsuit for permission to survey the property in relation to the project (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ) ); Moreau v. FERC, 982 F.2d 556, 569 (D.C. Cir. 1993) (holding, in a case where parties had actual notice before FERC granted the certificate, that the "Due Process Clause does not require notice where those claiming an entitlement to notice already knew the matters of which they might be notified"). The Green Acres Land Acquisition and Recreation Opportunities Act of 1975 ("Green Acres Act") was "designed to provide State funding to assist municipalities with the acquisition and development of property for conservation and recreation" and "required State-level approval of the sale ... of all conservation or recreational properties" either purchased with, or owned at the time of, the municipality's receipt of the funding. Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 584 A.2d 784, 785 (1991). Although FERC must consider the environmental impacts of the pipeline's siting and to the extent feasible to respect state conservation designations, see, e.g., 18 C.F.R. § 380.15, as a purely process-oriented statute NEPA cannot and does not require FERC to undertake any substantive acts, such as specifically complying with a state's land-use regulations. And the petitioners have not argued on appeal that FERC's consideration of the Green Acres property violated NEPA's procedures. In any event, we note that FERC's granting of the certificate (thereby accepting that the pipeline would pass through land subject to the Green Acres Act) was not irreconcilable with Transco thereafter going through the process mandated by the Act, which Transco has indeed agreed to do. To the extent that Transco would have had to utilize the right to seek eminent domain that is conveyed by the receipt of the certificate, it would only be because Bordentown-the landowner actually subject to the Green Acres Act-refused to agree to seek a diversion under the Act or because New Jersey refused to permit a diversion. The petitioners' argument suggests to the contrary that the granting of the certificate immediately condemns the property, notwithstanding state law. This is plainly incorrect, as the certificate merely signals FERC's approval of the Project's siting, based on the assumption that Transco will either receive the landowner's permission to use the property or else exercise its statutory right to condemn the property. Because FERC could issue the certificate and Transco could still (and, in fact, did) thereafter proceed via the Green Acres Act, it is unclear what additional "caution" the petitioners expect FERC to afford to the Green Acres Act scheme or, indeed, how much caution would in their view suffice. Reply 16. Although the statute directs the United States District Court overseeing the condemnation proceeding to "conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated," this requires district courts to attempt to mirror the state courts' condemnation proceedings, not to adopt the state's administrative scheme concerning the alienation of the land at issue. 15 U.S.C. § 717f(h). In Delaware II and III, we distinguished Berkshire on the basis that the Pennsylvania statute allowed construction to begin immediately upon the issuance of the agency's decision, whereas the Massachusetts statute at issue in Berkshire did not allow any action on the permit until the expiration of the period for seeking an adjudicatory hearing. For present purposes, however, the technical details of the state's administrative scheme are irrelevant. If the NJDEP and Transco are correct that the clear text of the statute demands that all review of permitting decisions must occur in this Court only, it would be counterintuitive to assert that we will ignore the statute's mandate and permit administrative review in contexts where the state's administrative scheme established that an initial decision is not final until the parties have an opportunity for review. Cf. Delaware III, slip op. at 12-13 ("Although the decisionmaking process we are reviewing is defined by Pennsylvania law, we nevertheless apply a federal finality standard to determine whether Congress has made the results of that process reviewable under the [NGA]."). Rather, accepting the NJDEP's and Transco's view, the statute-by eliminating any review other than federal Court of Appeals review-would operate to make final the state's initial permitting decision, notwithstanding whatever administrative review scheme the state otherwise had in place. Nor, for that matter, do the NJDEP or Transco assert that any such carve-out exists for state schemes that create a single or unitary proceeding that includes administrative review. But as we made clear in Delaware III, such distinctions in the state administrative scheme are "probative of whether that decision is final." Id. at 16. The petitioners assert that they meet this standard. In denying the petition for a hearing, the NJDEP expressly withheld decision on the claim, NJDEP App. 37 n.4, and neither the NJDEP nor Transco address this fact-specific issue on appeal. Given our disposition, we need not reach the issue, which we leave for the NJDEP to address in the first instance when reconsidering the petitioners' hearing request. We need not determine whether or not a NJDEP permitting decision is already final during the period when a party may still seek an adjudicatory hearing to challenge the permit because, as explained below, the fact that we may have immediate jurisdiction to hear a challenge to a permitting decision does not mean that the agency charged with administering the permitting process is thereby divested of its authority to review challenges to its permits via its established administrative procedures. In other words, our own limitation to hearing only final orders is not necessarily tantamount to creating an exhaustion requirement in the state process. See, e.g., Delaware III, slip op. at 17 ("[F]inality is 'conceptually distinct' from the related issue of exhaustion of administrative remedies." (quoting Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ) ); Berkshire, 851 F.3d at 110 (explaining that "[f]inding that a statute requires final agency action is different from finding that it requires exhaustion" (citing Darby v. Cisneros, 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) ) ). Assuming that a state considers an order final even though additional state agency procedures may be available-and that the classification is consistent with federal finality standards-we may consider a judicial challenge to the order despite the petitioner's failure to exhaust those further state administrative remedies. See Delaware III, slip op. at 12-13, 17. And conversely, even though a petitioner might have the right immediately to commence a civil action in this Court, this does not necessarily extinguish his or her right instead to seek redress via the available administrative avenues before filing that civil action.

Atchafalaya Basinkeeper v. Chustz

PER CURIAM: The Atchafalaya Basinkeeper and the Louisiana Environmental Action Network (collectively “Appellants”) are private entities with an interest in protecting Bayou Postillion in Iberia Parish, Louisiana. They sued the Atchafalaya Basin Program (“Program”), alleging that the Program violated the conditions of a permit issued to it by the Army Corps of Engineers (“Corps”) under the Clean Water Act (“Act”), 33 U.S.C. § 1344. The district court dismissed Appellants’ case after determining that the Act does not allow citizen suits to enforce the conditions of a § 1344 permit. We AFFIRM. I. The Corps issued the Program a permit under § 1344 of the Act, allowing it to dredge Bayou Postillion in Iberia Parish, Louisiana. Dredging activities such as those allowed under the Program’s permit result in “spoil banks,” which are large piles of dredged material that must be deposited along the sides of the Bayou. According to the complaint, the Program violated the conditions of its permit by failing to maintain appropriate gaps in its spoil banks to allow the natural water flow and flooding necessary to sustain certain wetland plant life. Appellants sued the Program and its Acting Director under the Act’s citizen suit provision, § 1365, to enforce the conditions of the Program’s § 1344 permit. The district court concluded that § 1365 does not allow such a citizen suit. This appeal followed. II. We review a district court’s grant of a Rule 12(b)(6) motion to dismiss de novo. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir.2012) (citing Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th Cir.2010)). We accept as true the facts pleaded in the complaint. Id. (citing Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 318 (5th Cir.2009)). For a complaint to state a claim, the non-moving party must plead enough facts to state a claim to relief that is plausible on its face. Id. (citing Wampler, 597 F.3d at 744). The Clean Water Act is a comprehensive statutory regime designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To that end, it prohibits “the discharge of any pollutant,” including dredged spoil, unless in compliance with certain enumerated exceptions. §§ 1311(a), 1362(6). Two of those exceptions, § 1342 and § 1344(a), create permitting schemes through which the discharge of pollutants may be authorized. Section 1344 grants the Corps the authority to issue permits “for the discharge of dredged or fill material,” and § 1342 authorizes the Environmental Protection Agency to issue a permit for the discharge of all other pollutants. The Corps has played an important role in the management of the navigable waters of the United States for over 100 years. Long before the Clean Water Act, the Rivers and Harbors Act of 1899 prohibited construction in navigable waters without permission from the Corps. 33 U.S.C. § 401. The § 1344 permit framework largely preserves the Corps’ historical responsibilities for the navigable waters of the United States. Accordingly, the Corps can enforce § 1344 itself as well as the conditions of the permits it issues under § 1344(a). The Act also allows citizen enforcement of certain specific and limited types of violations. Section 1365(a)(1), the Act’s citizen-suit provision, provides, in relevant part, that “any citizen may commence a civil action on his own behalf ... (1) against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter.” Section 1365(f), in turn, provides a seven-part definition of “effluent standard or limitation under this chapter.” Two of § 1365(f)’s grounds for citizen suit are relevant here. First, § 1365(f)(1) allows citizen suits for “an unlawful act under subsection (a) of section 1311 of this title.” Section 1311(a), titled “[ijllegality of pollutant discharges except in compliance with law,” provides that “[ejxcept as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” Second, § 1365(f)(6) allows citizen suits for violations of “a permit or condition thereof issued under section 1342 of this title.” III. Appellants claim a private right to sue the Program for violating a condition of a permit issued and administered by the Corps. The district court rejected Appellants’ argument for two reasons. First, it explained that Appellants’ interpretation of one subsection of the Act renders another subsection of the Act redundant. Second, the district court explained that the subsection of the Act under which Appellants claim a private right of action does not actually address § 1344 permit condition violations. We need not reach the district court’s second reason because we agree that Appellants’ interpretation of the Act renders one of its subsections redundant. It is an established rule of statutory interpretation that no provision should be construed to be entirely redundant. See Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (invoking the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant”). Appellants claim a right to sue under § 1365(f)(1), arguing that violations of § 1342 and § 1344 permit conditions are “unlawful acts” under § 1311(a). As the district court explained, however, if § 1365(f)(1) provided citizen suits for § 1342 permit condition violations, then § 1365(f)(6), which provides citizen suits in the case of a violation of “a permit or condition thereof issued under section 1342 of this title,” would have been unnecessary. Appellants attempt to explain away this redundancy objection, but the interpretation they must support to avoid it simply cannot be called a plain reading of the Act. They point out that § 1311(a) renders only “discharges” in violation of § 1342 and § 1344 unlawful acts and, therefore, proper grounds for citizen suit. Noting that § 1365(f)(6) never mentions “discharges,” Appellants insist that Congress’s one-word omission indicates its intent to limit § 1365(f)(6) to non-discharge related § 1342 permit condition violations. According to Appellants, § 1365(f)(6) thus covers something § 1365(f)(1) does not, and reading § 1365(f)(1) to provide citizen suits for permit condition violations would not render § 1365(f)(6) redundant. We reject that interpretation. Only someone who consulted § 1311(a) could notice the absence of the word “discharge” in § 1365(f)(6). But it is unclear why anyone interpreting § 1365(f)(6) would ever look to § 1311(a) in the first place. After all, § 1311(a) is not part of the Act’s citizen suit provision, and § 1365(f)(6) does not reference it. Yet Appellants contend that the presence of the word “discharge” in § 1311(a) is evidence of a drastic limitation on the scope of § 1365(f)(6), which omits the term and is otherwise unrelated. It is highly unlikely that Congress would so obliquely signal an extreme departure from § 1365(f)(6)’s plain language. That conclusion is strongly reinforced by Congress’s provision of citizen suits for § 1342 permit condition violations in the unmistakably clear language of § 1365(f)(6). It would be especially odd for Congress to provide citizen suits for § 1342 permit condition violations so plainly in the text of § 1365(f)(6) and simultaneously to bury the right to sue for § 1344 permit condition violations within a trilevel maze of statutory cross-references. If Congress had intended to allow citizen suits for § 1344 permit condition violations, it did not need to resort to the complicated method Appellants urge. Instead, it could have simply added another subsection to § 1365(f), providing the same right to sue for § 1344 permit condition violations that it provided for § 1342 permit condition violations in § 1365(f)(6). See Khalid v. Holder, 655 F.3d 363, 374 (5th Cir.2011) (“In sum, the better view [of the statute] is the simpler one.”). This reasoning is also consistent with the Supreme Court’s warning to lower courts not to infer private rights of action from such oblique statutory interpretations. Where a statute has “elaborate enforcement provisions,” as does the Act at issue here, the Supreme Court has warned that: [I]t cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens .... [I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate. Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (internal quotation marks and citations omitted). Congress has relied on the Corps to enforce the permits it issues for more than 100 years, and there are no strong indicia of congressional intent to provide citizen suits for § 1344 permit condition violations. Cf. Louisiana Envtl. Action Network v. City of Baton Rouge, No. 11-30549, 2012 WL 1301164, at *2 (5th Cir. Apr. 17, 2012) (“[T]he citizens’ role in enforcing the Act is ‘interstitial’ and should not be ‘intrusive.’ ”) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 61, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). rv. For these reasons, we hold that the Act does not provide citizens the right to sue to enforce the conditions of § 1344 permits. AFFIRMED.

George v. NYC Department of City Planning

DENNIS JACOBS, Circuit Judge. The complaint alleges that the New York City Department of Buildings granted various building permits for a fence that obstructed a public right of access to a beach on the Atlantic Ocean, and that the City approved the fence without reviewing its environmental impact, violating public and private rights guaranteed by the Coastal Zone Management Act, 16 U.S.C. § 1451 et seg. (2004). Magistrate Judge Lois Bloom filed a Report and Recommendation in October 2004 recommending that the complaint be dismissed on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, on the ground that the Act does not afford a private right of action against city agencies. The United States District Court for the Eastern District of New York (Feuerstein, /.), adopted the Report and Recommendation in its entirety. We affirm. DISCUSSION A grant of judgment on the pleadings is reviewed de novo; we affirm only if plaintiff would not be entitled to relief under any set of alleged facts. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Plaintiff challenges the City’s compliance with the following chapter of the Act: State and local governments submitting applications for Federal assistance under other Federal programs, in or outside of the coastal zone ... shall indicate the views of the appropriate state or local agency as to the relationship of such activities to the approved management program for the coastal zone.... Federal agencies shall not approve proposed projects that are inconsistent with the enforceable policies of a coastal state’s management program, except upon a finding by the Secretary that such project is consistent with the purposes of this chapter or necessary in the interest of national security. 16 U.S.C. § 1456(d) (2000) (emphasis added). To discover whether Congress intended that the Act be enforceable by a private right of action, we look to the “text and structure” of the statute. Sandoval, 532 U.S. at 288, 121 S.Ct. 1511. Where the text explicitly contemplates public enforcement only, courts will assume Congress intended to preclude private enforcement. Id. at 290, 121 S.Ct. 1511; Gerosa v. Savasta & Co., 329 F.3d 317, 322 (2d Cir.2003). Nothing in the text of the Act renders the City liable to plaintiff for granting defendant a building permit without reviewing whether the project is consistent with the coastal zone. And the “structure” of the Act only reinforces the view that the Act affords no private right of action. The Act specifies a remedy against state or city agencies that proceed without consistency review: the denial of “applications for Federal assistance under other Federal programs.” 16 U.S.C. § 1456(d); see also, 16 U.S.C. § 1455(b) (2000) (“The Secretary may make a grant to a coastal state under ... this section only if the Secretary finds that the management program of the coastal state meets all applicable requirements of this chapter.... ”). It is telling that the Act specifies a mechanism for enforcing the consistency requirement against state and city agencies without mention of any private right of action. As the Third Circuit concluded, the Act’s “general statement of intent to enhance state authority, given effect through explicit measures in the statute itself, cannot be taken to indicate an intent also to create rights of actions that the statute fails to mention.” Dep’t of Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403, 423 (3d Cir.1994); see also California ex rel. Brown v. Watt, 683 F.2d 1253, 1270 (9th Cir.1982), rev’d on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984) (assuming, though not deciding, that no private right of action is available under the Act). District courts within the Second Circuit have likewise declined to find a private right of action in the Act. See Town of N. Hempstead v. Vill. of N. Hills, 482 F.Supp. 900, 905 (E.D.N.Y.1979) (“[The Act] is neither a jurisdictional grant, nor a basis for stating a claim upon which relief can be granted.”); see also New York v. DeLyser, 759 F.Supp. 982, 987 (W.D.N.Y.1991) (suggesting that only possible private right of action under the Act would be against the federal government through the Administrative Procedure Act). We adopt the interpretation favored by other circuits and by district courts in this Circuit, namely, that the Coastal Zone Management Act creates no private right of action against city agencies. We have considered all of plaintiffs other claims and consider them to be without merit. The decision of the district court is affirmed.

Save Our Community v. U.S. Environmental Protection Agency

PER CURIAM: Appellee, Save Our Community (“SOC”), brought suit challenging the draining of several ponds on the site of a proposed expansion of a 73-acre landfill (the “Skyline Landfill”) near the City of Ferris, Texas, operated by appellant Trinity Valley Reclamation, Inc. (collectively “Trinity”). SOC sought a preliminary injunction and a declaratory judgment that Trinity violated the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., by failing to obtain a permit pursuant to section 404 of the Act before starting to drain the ponds. SOC also sought a declaration that appellants the United States Army Corps of Engineers (“Corps”) and the United States Environmental Protection Agency (“EPA”) (collectively “Federal defendants”) either failed to perform a duty to enforce section 404 provisions or incorrectly interpreted the CWA by determining that draining is not a regulated activity under the Act. The district court held as a matter of law that the draining activity required a permit. It issued a permanent injunction. We reverse. I. FACTS Trinity- owns and operates the Skyline Landfill located near Ferris, Texas. In contemplation of expanding the landfill to encompass a total area of 340 acres, Trinity solicited an opinion from the Corps in May of 1987 as to whether the Corps had jurisdiction over-any portion of the proposed expansion area as constituting waters of the United States. The area included seven man-made ponds. The Corps determined that these ponds were waters of the United States, and, as such, were protected under the CWA. The EPA subsequently sent a letter to Trinity concurring in the Corps’ determination and advising it of the need for a permit if any discharge into these ponds was contemplated. Since filling the ponds with landfill would violate the CWA, Trinity began draining the ponds by the use of a mechanical pump, utilizing the water extracted to irrigate the sod covering areas of the existing landfill. According to Trinity, maintaining a proper sod cover over the existing landfill necessitated irrigation, and the ponds provided the only water available in the area. Moreover, Trinity, as well as the Corps, expressed a concern that the rubble dams creating the ponds were unstable, and thus were a risk to public safety, further necessitating the removal of water from the ponds. More important, Trinity planned to drain the ponds and utilize these areas for landfill purposes. Unsure whether this pumping activity would ever fully drain the ponds, Trinity asserted, and the Corps concurred, that Trinity subsequently would seek another determination from the Corps as to whether these drained areas still constituted waters of the United States prior to utilizing the areas for landfill purposes. During the course of this pumping operation, the result of which had lowered the surface area of the ponds down from 20 to 10 acres, Trinity, in January 1989, applied to the Texas Department of Health (“TDH”) for a permit to expand the Skyline Landfill from 73 acres to 340.399 acres. The TDH referred along the application to the Fish and Wildlife Service of the United States Department of the Interior (“FWS”) for its review. FWS replied that there was “an apparent attempt to circumvent the regulations” on the part of Trinity, and recommended that “in the interest of fish and wildlife resources and wetland conservation ... the permit application be denied.” FWS expressed its concerns regarding the project and reported that it “noted a variety of wildlife using the ponds on our on-site visit including leopard frogs, beaver, and various birds.” FWS also drew Trinity’s attention to the depositing of fill material occurring in one of the ponds. On April 2, 1990, claiming that the draining activity required a permit from the Corps pursuant to section 404 of the CWA, the City of Ferris and SOC filed their Original Complaint, Application for Temporary Restraining Order, and Application for Preliminary Injunction under the citizens’ suit provision of the CWA. They sought to enjoin the further removal of water from the ponds. The City of Ferris and SOC also asked for a declaration that the Corps and the EPA had either misinterpreted the CWA by concluding that Trinity did not require a section 404 permit to drain the ponds or had failed in their duties under section 404. The next day, citing the need to prevent further drainage of the ponds, the district court issued a TRO enjoining Trinity from draining or otherwise altering wetlands located on the Skyline Landfill property. In the weeks that followed, the EPA and the Corps filed a Motion to Dismiss arguing that no permit was required for Trinity’s draining activity. Nonetheless, on May 3, 1990, the district court rendered its decision in a published opinion, Save Our Community v. EPA, 741 F.Supp. 605, 617 (N.D.Tex.1990), enjoining Trinity from “draining, dredging, building on, discharging into or otherwise altering, by any means, the seven ponds classified as wetlands ... unless and until Trinity procures a § 404(b) permit from the Corps for the activities listed above, or until the entry of final judgment or until further order, of this Court.” Because it believed that, “in light of its ruling, the Corps and the EPA [would] carry out their duty to make a determination under § 404(b),” it refused to grant injunctive relief against the Corps or the EPA. In reaching this conclusion, the district court engaged in a policy-based analysis of the CWA — its legislative history, regulatory guidelines issued pursuant to it, and particular language excised from cases applying it. Focusing nearly entirely on the clearly destructive aspects of Trinity’s draining project, and offended by what it perceived to be a direct subterfuge of section 404 by permitting a landowner to drain a wetland and then claim “[pjermit for what wetland?”, the district court held: [A]s a matter of law that pursuant to the Clean Water Act, its regulations, and relevant case law § 404(b) of the Act requires a permit where draining a wetland presents the threat of significant alteration or destruction of the wetland. 741 F.Supp. at 615. Despite a fact finding that “[s]ome minor discharges ha[d] occurred,” and ignoring the urging of amici curiae — the Environmental Defense Fund and the National Wildlife Federation — to “consider a supplemental basis for its ruling that takes into account discharges,” the district court refused to consider the issue of discharge in making its decision: “Because the Court decides that the draining activities in this case require a § 404(b) permit, it need not rule on the issue of whether a de minimis discharge requires a permit.” Id. at 613 n. 11. Because the parties continued to refer to alleged discharges in subsequent proceedings, the court continued to mention them. But it always found them irrelevant to its decision: On June 13, 1990, SOC moved for summary judgment and a permanent injunction, claiming that no genuine disputed issue of fact remained following the district court’s prior ruling. At this juncture, once again, Trinity and the Federal defendants contended that the district court lacked jurisdiction over the subject matter because Trinity’s draining activity did not require a section 404 permit. The district court, however, found jurisdiction and awarded summary judgment and a permanent injunction. It ordered that Trinity pay SOC’s attorneys’ fee as well as costs. The court asserted that if Trinity’s activity is “viewed as a whole,” it unquestionably requires a permit. According to the court, “[t]o divorce the drainage of the wetlands from their subsequent filling with waste matter is to be blinded by abstractions and to ignore the actual controversy between the parties.” On appeal, Trinity challenges the district court’s ruling that draining activities that significantly alter wetlands require a section 404 permit. Trinity also takes issue with the district court’s assessment of SOC’s attorneys’ fees, expenses, and court costs against it. II. DISCUSSION A. Standing As a preliminary matter, Trinity challenges SOC’s Article III standing to sue as seeking enforcement of the CWA under the Act’s citizen suit provision. Standing analysis focuses upon “[w]hether a party has a sufficient stake in an otherwise justi-ciable controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). SOC seeks to represent the interests of its members. Such “representational standing” is appropriate where: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” O’Hair v. White, 675 F.2d 680, 691 (5th Cir.1982) (en banc) (quoting Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)). Trinity asserts that SOC’s individual members lack standing to pursue this suit on their own; consequently, SOC as an organization lacks standing. The Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), enunciated the requirements for individual standing: [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” ... and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” In its complaint, SOC defined its raison d’etre as “promoting the protection of the wetlands in and around their communities.” Further, SOC supported with affidavits the assertion that its members resided in the vicinity of or owned property near the wetlands on the Skyline Landfill, and enjoyed “the wildlife, aesthetics, open space, ecological and other values of the wetlands, ... and [were] directly and beneficially interested in the continued protection, preservation, and enhancement of these values.” We find that SOC has stated an injury sufficient to satisfy the first element of the standing requirement under Valley Forge. The Supreme Court held in Morton, 405 U.S. at 734-35, 92 S.Ct. at 1366, that harm to aesthetic, environmental, or recreational interests is sufficient to confer standing, provided that the party seeking review is among the injured. Further, as the Third Circuit recently acknowledged, “[t]hese injuries need not be large, an ‘identifiable trifle’ will suffice.” Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3rd Cir.1990) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973)), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). As the district court noted, other Courts have consistently recognized this low threshold for sufficiency of injury. See, e.g., United States v. Metropolitan St. Louis Sewer District (MSD), 883 F.2d 54, 56 (8th Cir.1989) (conferring representative standing where two of the group’s named members alleged that many of the 25,000 members have visited, crossed, and frequently observed the river, as well as periodically have used it for recreational purposes); Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1112 n. 3 & 1113 (4th Cir.1988) (finding injury to aesthetic and environmental interests sufficient where pollution would affect river along which a single group member hiked), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.1985) (holding that two affidavits testifying to the recreational use of the river and finding the pollution offensive to aesthetic values sufficient to demonstrate injury). With the first element of the Valley Forge test satisfied, we turn now to the second factor — whether the injuries suffered by SOC’s members are “fairly traceable” -to Trinity’s alleged failure to obtain a permit. Trinity acknowledges that its activities on the Skyline Landfill have reduced the total acreage of the ponds by half, and that the FWS has reported that, “[b]ecause the upper ponds have been drained, they now have considerably less value for wildlife.” Further, as the Third and Fourth Circuits have suggested, the “fairly traceable” element does not require that the plaintiffs “show to a scientific certainty that defendant’s effluent, and defendant’s effluent alone, caused the precise harm suffered by the plaintiffs.” Powell Duffryn, 913 F.2d at 72; Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 n. 7 (4th Cir.1992). Under the developed tests, we find the second element satisfied. To meet the third requirement, SOC’s members must demonstrate that their injuries are “likely to be redressed by a favorable decision.” The redressability factor focuses upon the connection between the plaintiff’s injury and the judicial relief sought. Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984). It is obvious the third element is satisfied. Enjoining Trinity’s activities would redress the injuries suffered by SOC’s members by preventing the further destruction of the wetlands. We conclude that the district court held properly that SOC, as a representational organization, had standing to bring this suit. SOC has shown more than a mere “general interest in environmental preservation.” B. Statutory Coverage SOC maintains that because Trinity’s continued draining of, discharging into, and ultimate filling of the wetlands without a permit is a violation of sections 301 and 404 of the CWA, there is also federal question jurisdiction. Trinity contends that because section 505, the citizen’s suit provision, refers to a violation of an effluent standard, limitation, or order, SOC is precluded from bringing suit against Trinity for failure to seek a permit. Trinity argues that without a discharge of effluent no violation exists, and no jurisdiction is created. Passed in 1972 with the stated objective of restoring and maintaining the integrity of the waters of the United States, the CWA seeks to achieve this goal “by the application of increasingly more stringent ‘effluent limitations’ designed to reduce gradually the amount of pollutants discharged into waterways.” Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir.), cert. denied, 484 U.S. 985, 108 S.Ct. 501, 98 L.Ed.2d 500 (1987). In precise language, the CWA prohibits “the discharge of any pollutant by any person” except as authorized by specific sections of the Act. 33 U.S.C. § 1311(a). Specific authorization includes the discharge of “dredged or fill material” pursuant to a permit issued under section 404 of the CWA. 33 U.S.C. § 1344(a). Any discharge of this material without such a permit is, of course, prohibited. Violations of the provisions of the CWA may be redressed through a private citizen enforcement action: [A]ny citizen may commence a civil action on his own behalf — (1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. ... 33 U.S.C. § 1365(a). Thus, the CWA “intertwines the jurisdiction of the district court with the grounds for relief in a citizen enforcement action.” Sierra Club, 817 F.2d at 1171. Without the violation of either (1) an effluent standard or limitation under the CWA, or (2) an order issued with respect to these standards and limitations, the district court lacks jurisdiction to act. The basic question is: do these requirements constitute the sole ground for coverage under the statute? The decision of the district court went beyond these two defined violations and found that draining a wetland, per se, requires a permit under section 404 of the CWA. No discharge was relied upon as any part of the justification by the court of its decision. In interpreting the statute to determine whether it covers a violation as recognized by the district court, “we begin, of course, with the words of the statute.” Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir.1990). In so doing, our function “is to construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Ass’ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). The district court, in its interpretation of the CWA, relied heavily, if not entirely upon the Act’s legislative history to divine its congressional intent. However, “[t]he most persuasive evidence of Congressional intent is the wording of the statute.” Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir.1977). By its clear and unambiguous terms, the CWA proscribes “the discharge of any pollutant by any person” into the waters of the United States. 33 U.S.C. § 1311(a) (emphasis added). It then specifically requires a permit, with exceptions irrelevant in this case, “for the discharge of dredged or fill material” into these waters. 33 U.S.C. § 1344(a) (emphasis added). The conclusion is inescapable. The existence of discharge is critical. The discharge must be of effluent or dredged or fill material. The discharge of effluent is not, as SOC urges, merely an aggravating factor when addressing whether or not a section 404 permit is required. On the face of the statute, it is the requirement for statutory coverage. The plain language of a statute cannot be wholly bypassed on the way to an interpretation of its more indeterminate legislative history. “Where the statute is so lucid, we need not look to the legislative history for further guidance.” Phillips, 895 F.2d at 1035. While legislative history admittedly aids in discerning the parameters and purpose of an ill-defined statute, “[i]n the absence of a ‘clearly expressed legislative intention to the contrary,’ the language of the statute itself ‘must ordinarily be regarded as conclusive.’ ” United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986) (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). We conclude that the statutory provisions are clear and unambiguous. Throughout the course of this case, the EPA and the Corps have vigorously agreed with the conclusion that the CWA only addresses discharges of effluent. The unequivocal language found in their own regulations and guidelines promulgated pursuant to section 404(b) of the Act bolsters this contention: The purpose of these Guidelines is to restore and maintain the chemical, physical, and biological integrity of waters of the United States through the control of discharges of dredged or fill material. 40 C.F.R. 230.1(a); These Guidelines have been developed ... under section 404(b)(1) of the Clean Water Act (33 U.S.C. 1344). The Guidelines are applicable to the specification of disposal sites for discharges of dredged or fill material into waters of the United States. 40 C.F.R. 230.2(a). See also 33 C.F.R. 320.-2(f) (describing the Corps’ authority pursuant to section 404 of the CWA “to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the waters of the United States at specified disposal sites”). Further, 33 C.F.R. 323.1 describes the Corps’ program as the regulation of “discharge of dredged or fill material into waters of the United States”. We accord substantial weight to these interpretations, as “[a]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985) (citing Chemical Manufacturers Ass’n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 1107-08, 84 L.Ed.2d 90 (1985)); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)). Even if we would have arrived at a different interpretation, “if the agency’s interpretation is reasonable the court must respect it.” Avoyelles Sportsmen’s League, Inc. v. Marsh (Avoyelles III), 715 F.2d 897, 910 (5th Cir.1983) (citing Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). Recognition of the “discharge” requirement as the triggering mechanism for section 404 coverage is by no means novel. Courts have consistently applied section 404 only after finding that discharges of effluent into navigable waters were involved. See, e.g., Riverside Bayview Homes, Inc., 474 U.S. at 124, 106 S.Ct. at 458 (holding wetlands property to be subject to Corps’ section 404 permitting authority after Corps sought to enjoin placement of fill materials on wetland area); United States v. Tilton, 705 F.2d 429, 430 (11th Cir.1983) (enjoining the further discharge of fill material “consisting of wood-chips, pine bark and soil” without a section 404 permit); Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898 (Fed. Cir.1986) (holding that if there was no discharge of pollution, then the Corps “had no statutory authority to act” under section 404), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); United States v. Larkins, 657 F.Supp. 76, 80, 85 (W.D.Ky. 1987) (requiring a section 404 permit for the “use of earthmoving equipment to construct earthen dikes and levees on wetlands,” which had resulted in “unauthorized deposition of material into water of the United States”), affd 852 F.2d 189 (6th Cir.1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1131, 103 L.Ed.2d 193 (1989). The cases relied upon by the district court in ruling that a discharge is not required to trigger the coverage of section 404 belie the court’s conclusion. See Save Our Community v. EPA, 741 F.Supp. at 613-15. Beginning with Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 923-24 (5th Cir.1983), the district court apparently did not view as critical the fact that in addressing the landowners’ landclearing activities in Avoyelles, this Court held that the district court “correctly decided that the landclearing activities on the [wetland tract] constituted a discharge within the meaning of the [CWA].” Affirming that the bulldozers and backhoes used in the landclearing were “point sources” that created discharges by collecting “into windrows and piles material that may ultimately have found its way back into the waters,” 715 F.2d at 922, this Court held “that the material discharged in this case was ‘fill,’ if not ‘dredged,’ material and hence [was] subject to the Corps’ regulation under section 404, as long as the activities did not fall within the section 404(f) exemption.” Id. at 924., Next, the district court construed our decision in Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 647 (5th Cir.1983) to stand for the proposition that a section 404 permit will not be required when an activity will not convert or destroy wetlands by materially affecting their drainage patterns. So, conversely, the district court inferred that when wetlands are converted or destroyed in this way, a section 404 permit is required. Again, this reliance is misplaced. Our decision in Sands that a section 404 permit was not required turned instead upon the Corps’ determination that, under the facts and circumstances of that case, the “materials” produced by the clearing of wooded swampland “[did] not qualify as dredged or fill materials under [the Corps’] definitions.” 711 F.2d at 647. Consequently, it was not, as the district court contended, the fact that the wetlands in Sands would not be entirely destroyed that distinguishes that case from Avoyelles Sportsmen’s League v. Alexander, 473 F.Supp. 525 (E.D.La.1979) (“Avoyelles I”). Instead, as we specifically noted in Sands, “[t]he definition of fill material highlights the fundamental difference that exists between this case and the Avoyelles decision.” 711 F.2d at 647. Thus, in these cases and all the other cases upon which the district court relied, the holdings were based upon a finding of a discharge of pollutants. We must conclude that without the existence of an effluent discharge of some kind, there is no coverage under section 404. There is no jurisdiction for the agencies or the courts to act. We must remind again that the federal government has not taken upon itself to resolve all environmental issues which arise in the United States. Save Barton Creek Ass’n v. Federal Highway Administration, 950 F.2d 1129, 1144 (5th Cir.) cert. denied, — U.S.-, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992). Determining whether a discharge of effluent occurred in this case, therefore, becomes crucial. The activity at issue here involved the draining of wetlands via the use of a mechanical pump. Trinity utilized the water pumped to irrigate the sod cover on the landfill. While filling activity was indisputably contemplated after the draining had caused the area to lose its wetlands characteristics, Trinity undertook to avoid any and all discharges of fill, or other material, during the draining phase. Both the EPA and the Corps assured Trinity that if no discharges were involved, then the removal of water from the ponds did not constitute a regulated activity under the CWA, and thus did not require a section 404 permit. Few cases involve the narrow issue of whether the removal of water from wetlands constitutes a discharge and requires a permit from the Corps. The dearth of case law on this issue is not surprising. We have found no suit in which the Corps undertook to prevent the removal of water from wetlands. In a case solidly controlling, we held that the deliberate draining of a swamp is not a discharge of fill material. In Orleans Audubon Society v. Lee, 742 F.2d 901 (5th Cir.1984), the Orleans Audubon Society sued the New Orleans District of the Corps of Engineers to require the Corps to take action to prevent the draining of a cypress-tupelo gum swamp by C.I.T. Corporation. By draining and later filling the wetland area, C.I.T. intended to convert the tract for residential use. Orleans contended that the installation of two drainage culverts between a wetlands area and an adjacent drainage canal to accomplish the draining “violated the CWA because they resulted in the depositing of dredged or fill material into either the C.I.T. tract itself or into the [drainage canal]_” Id. at 910. The record explicitly showed, however, that only clear water flowed through the culverts into the canal, i.e., no discharges of effluent occurred. We held in agreement with the Corps’ determination that there was no section 404 requirement for C.I.T. to obtain a permit for the drainage operation: “Clear water is not within the definition of a pollutant under the CWA.” Id. at 910. Orleans further argued that section 404(f)(2) (related to dredged or fill material only) prohibited the drainage of the water from the C.I.T. tract. The drainage, Orleans maintained, was “incidental to an activity which is intended to bring about the conversion of a wetland, the C.I.T. swamp, into non-wetland area which can then be developed into a residential area without governmental approval.” Id. n. 16. We found that, although cognizant of this possibility, as was the Corps, we could not require an exercise of nonexistent jurisdiction. We said that “Section 404(f)(2) applies only when dredged or fill material has been discharged, and water is simply not dredged or fill material. Orleans’ assertion that vegetation from the tract (which, it argues, constitutes a pollutant) was also being removed through the culverts was not supported by the record.” Id. (emphasis in original). The district court undertook to distinguish Orleans’ pivotal holding. Our finding in the body of the opinion was that, absent a finding of discharge, draining activity that converts a wetland does not trigger section 404 jurisdiction requiring a permit. Instead, the district court focused upon our dismissal of Orleans’ claim that section 404(f)(2) applied. This limitation of the scope of Orleans led the district court to the conclusion that “the [Orleans ] court restricted its discussion to the limiting clause of § 404(f), which provides for very narrow exceptions to the permit requirement.” Save Our Community, 741 F.Supp. at 615 n. 17. Thus, the district court held, “[t]he Orleans court’s brief analysis cannot be understood to mean that the Act permits the wanton destruction of wetlands through draining activities. However, to the extent that Orleans conflicts with Avoyelles III, Save Our Wetlands, and [Louisiana Wildlife Federation, Inc. v.] York [761 F.2d 1044 (5th Cir.1985) ], this Court follows the path cleared by the latter decisions.” Id. We did not, however, limit our holding to the application of section 404(f). Furthermore, our reading of these later cases fails to discern any divergence from our Orleans approach. As an alternative argument to its assertion that drainage alone requires a permit, SOC contends that even if draining without a discharge is not regulated under the CWA, discharging pollutants certainly is. According to SOC, the district court made a finding of fact that there were some “minor” discharges. Save Our Community, 741 F.Supp. at 609, Finding of Fact No. 14. SOC relies primarily on two observations by the FWS. First, it cites FWS' May 27, 1989 correspondence to the TDH recommending the denial of Trinity’s landfill permit application: Pumped water has been discharged into a makeshift ditch resulting in significant erosion above the ditch’s outfall to Pond F and subsequent deposition of fill material in Pond F. Second, it cites other FWS correspondence to Trinity on February 22, 1990, reiterating similar contentions: Regarding siltation, the most prominent example noted by our staff in a site-visit on March 14, 1989, was the deposition of recently eroded soil in Pond F resulting from water pumped from Pond A into a make-shift ditch. Trinity counters first by stating that by the district court’s own admission, whether minor discharges have occurred or not was declared to be irrelevant to the district court’s decision. The only basis for the court’s prohibition against draining was its determination that draining is a regulated activity under section 404. Second, it asserts that the district court’s finding concerning discharge is clearly erroneous. Under State of Missouri ex rel. Ashcroft v. Department of the Army, Corps of Engineers, 526 F.Supp. 660, 678 (W.D.Mo.1980), aff'd, 672 F.2d 1297, 1304 (8th Cir.1982), as a matter of law, erosion of soil as a result of releases of water is simply not a discharge regulated by the CWA. Third, a finding of minor discharge is not equivalent to a finding of a violation of section 301(a). According to Trinity, many minor discharges are authorized pursuant to broad nationwide permits issued under section 404(e), 33 U.S.C. § 1344(e), and 33 C.F.R. § 330.5. Trinity also urges that a genuine dispute concerning material facts remains on the issue as to whether any discharge at all occurred. At the district court level, Trinity disputed the factual accuracy of the discharges finding by proffering an affidavit from Trinity’s Environmental Engineer Manager-Texas stating that Trinity would not discharge any dredged or fill material into the pond areas without a determination that those areas were not jurisdictional waters, or if they were, a section 404 permit would be obtained from the Corps. First, we emphasize that it is not contested that the district court relied exclusively on its finding of draining, not discharge, to find section 404 jurisdiction. The Federal defendants urge and even Trinity concedes that denial of the summary judgment and the remand is necessary to resolve this disputed factual issue. As to Trinity’s second assertion, SOC seeks to characterize the siltation alleged as redeposited wetlands material. It cites to Avoyelles III, 715 F.2d at 923, for the proposition that the term “discharge” under the section 404 regulations covers the redepositing of materials taken from the wetlands. Faced with an incomplete factual record on this issue, we also must leave its determination for the district court. Third, SOC maintains that contrary to Trinity’s contentions, the discharges observed by FWS are subject to section 404 jurisdiction, even if they constitute de min-imis discharges. A de minimis exception is not explicitly mentioned under section 404. But it is recognized in regulations exempting from section 404’s permit requirement those activities involving only de minimis discharge. The Corps’ current definition of “discharge of dredged material,” at 33 C.F.R. 323.2(d), provides that “de minimis, incidental soil movement occurring during normal dredging operations” is not considered to be within this regulatory definition. Further, the EPA’s regulations contain a similar definition with the same exclusion. See 40 C.F.R. 232.2(e). Because it is unclear from the record the extent of or if any prohibited discharge has occurred, we need not now consider the issue of the extent to which de minimis discharges require permits under section 404 of the CWA. C. Attorneys’ Fees The district court awarded SOC attorneys’ fees, expenses, and court costs as the prevailing party in this lawsuit. See 33 U.S.C. § 1365(d). Since we determine that the district court erred in finding that Trinity’s activities required a permit under section 404, the award of attorneys’ fees to SOC was not justified. See Chemical Manufacturers Ass’n v. United States EPA, 885 F.2d 1276, 1279 (5th Cir.1989) (“an award is usually ‘appropriate’ when a party has advanced the goals of the statute invoked in the litigation”). III. CONCLUSION We hold that the wetlands draining activity per se does not require a section 404 permit under the CWA, as only activities involving discharges of effluent necessitate obtaining such a permit. Consequently, we dissolve the injunction. Further, viewing the evidence and drawing all inferences in the light most favorable to Trinity, the non-moving party, we conclude that there are disputed issues of material fact regarding the existence of the exact nature of a discharge alleged. Bozé v. Branstetter, 912 F.2d 801, 804 (5th Cir.1990) (per curiam). Because the existence, nature, and extent, including redepositing, of an alleged discharge were not considered by the district court, we reverse the summary judgment and remand to the court, as coverage of the statute turns upon this determination. We find the mandate of the statute is clear. INJUNCTION DISSOLVED, SUMMARY JUDGMENT REVERSED. REMANDED. . This case originally proceeded on behalf of SOC and the City of Ferris. In the district court’s grant of the application for preliminary injunction, the court found that while SOC had standing, the City of Ferris was not an appropriate party to the suit. Save Our Community v. EPA, 741 F.Supp. 605, 611 (N.D.Tex.1990). . Trinity Valley Reclamation, Inc. is a wholly-owned subsidiary of Waste Management of North America, Inc., which is in turn a wholly-owned subsidiary of Waste Management, Inc. In the proceedings below, the Waste Management entities were collectively referred to as Waste Management by both SOC and the court. However, because the Waste Management entities refer to themselves as Trinity on appeal, to alleviate confusion, we likewise do so. . SOC is an unincorporated association of individuals organized and existing to oppose expansion of the Skyline Landfill. Members of SOC reside in the-cities of Ferris, Dallas, and Palmer, and in rural areas in Ellis and Dallas Counties. SOC seeks to promote the protection of the wetlands in and around its members’ communities. SOC’s members assert that they enjoy the wildlife, aesthetics, open space, ecological and other values of the wetlands, which have been and may or will be drained and/or filled, and are directly and beneficially interested in the continued protection, preservation, and enhancement of these values. . The Corps and the EPA jointly administer the CWA section 404 regulatory program. The CWA confers broad authority to the Corps and the EPA to regulate activities involving a discharge of dredged or fill material into the nation’s waters, including wetlands. 57 Fed.Reg. 26894 (1992) (to be codified at 33 C.F.R. pts. 323 & 328 and 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, and 401) (proposed June 16, 1992). Under the Memorandum of Agreement between the EPA and the Corps delineating jurisdictional authority under the CWA with regard to standard permit applications, the Corps makes most of the jurisdiction decisions though it must abide by EPA guidance. A tracking system is also provided whereby the Corps supplies the EPA with a record of all its jurisdictional determinations to enable the EPA to review decisions. See Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions Under Section 404(f) of the Clean Water Act (Jan. 19, 1989). . According to a recent commentary, draining a wetland without attaining a section 404 permit has emerged as a common vehicle to destroy wetlands. Comment, Pumping With the Intent to Kill: Evading Wetlands Jurisdiction Under Section 404 of the Clean Water Act Through Draining, 40 DePaul L.Rev. 1059, 1080 (1991). In essence, the draining is accomplished, as in the instant case, through the installation and use of a mechanical pump or other dewatering device. Consequently, the water is drained out of the wetland, destroying the water, soil, and vegetation conditions necessary to characterize the area as "waters of the United States,” subject to protection by the CWA. . After Trinity was advised that the ponds, in their present condition, were jurisdictional waters fringed with wetlands, Trinity met with officials from the Corps, the EPA, and the Fish and Wildlife Service ("FWS”) on several occasions to discuss Trinity’s plans to drain these ponds. All three agencies advised Trinity that no permit was required for Trinity's draining activities as long as Trinity did not discharge any pollutants into any jurisdictional waters of the United States. Trinity maintains that it is committed to wetlands protection and preservation. It is cognizant that its plan to de-water the ponds will result in some loss of wetland habitat (arguably all), and, consequently, has sought voluntarily to propose to replace the ponds with a high-quality wetlands wildlife habitat elsewhere on Trinity's property in an area adjacent to Ten Mile Creek. Trinity has submitted its proposed Wetlands Development Plan to the Corps, the EPA, and the FWS for their review and comment. According to Trinity, it has been verbally advised by representatives from these agencies that the new proposed wetlands wildlife habitat "will be superior to the existing water-filled pits [ponds]." .On May 30, 1991, Trinity applied to the Corps for a permit for the draining of the ponds at issue in the instant case, the destruction and removal of the rubble dams, and the creation of new replacement wetlands elsewhere. The permit application anticipates that the discharge of "dredged or fill material for this project will include discharges resulting from the pumping of water, removal of the rubble dams and dredging of the benthic soils from existing im-poundments A-F.” According to the Federal defendants, though the SOC, the amici curiae, the Environmental Defense Fund ("EDF"), and National Wildlife Federation ("NWF”) appear to take the application as an indication that the draining of the ponds requires a permit, the application and notice do not support the inference. Although Trinity may drain the ponds without a permit if no discharge occurs, it would be easier for Trinity if the project would progress without the need to prevent discharges. Further, as Trinity also concedes, it is unclear whether Trinity will be able to drain the ponds completely or whether the pond sites will cease to be wetlands regardless of Trinity’s careful draining. Thus, the Corps suggests that it was wise to apply early for a permit. . Ultimately, after a four-week hearing in April, and after voluminous post-hearing briefing by all parties, TDH denied Trinity’s landfill expansion permit application on August 8, 1990. Trinity’s motion for rehearing was denied on February 20, 1991. . As a peripheral argument, SOC contends that the Federal defendants lack standing to appeal because the district court declined to grant relief against them. In order to have standing to appeal, a party must be aggrieved by the judicial action from which it appeals. See Deposit Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 1171, 63 L.Ed.2d 427 (1980). In response, the Federal defendants concede that they potentially lack standing to appeal. They contend, however, that since they side with Trinity who has the requisite standing, the matter is of little import. Second, they are entitled to appeal because they were party to the suit below. In any case, they conclude, they could always file their briefs as amicus curiae. See Fed.R.App.P. 29. Further, the Federal defendants assert that SOC’s argument that the district court correctly determined that it had jurisdiction over the government (an issue not on appeal) is somewhat inconsistent with its argument that the district court’s judgment is not binding on the government and therefore not appealable. Because the resolution of this issue has no bearing on the substantive case, we need not explore it further. . The CWA confers standing to the limits of the Constitution. Under the CWA, “any citizen may commence a civil action.” 33 U.S.C. § 1365(a). A "citizen" is “a person or persons having an interest which is or may be adversely affected.” Id. § 1365(g). . Our standing analysis need not apply the reasoning recently employed by the Supreme Court in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). There, the Court faced a question of statutory, as distinguished from constitutional standing, see Powell Duffryn, 913 F.2d at 84 (Aldisert, J., concurring) (recognizing constitutional/statutory distinction in Lujan), and addressed alleged violations under NEPA, the APA, and the Federal Land Policy and Management Act of 1976 ("FLPMA”), but not the CWA. As the Court noted, neither the FLPMA nor NEPA provides a private right of action for violations of its provisions — thus judicial review of agency action was possible only if authorized by § 10(a) of the APA. 497 U.S. at <-, 110 S.Ct. at 3185. Because the CWA does specifically provide such a private right of action, 33 U.S.C. § 1365(a), we properly employ a constitutional standing analysis, as opposed to a statutory analysis under the APA. . The term "discharge of a pollutant” is defined by the statute as constituting "any addition of any pollutant to navigable waters from any point source_” 33 U.S.C. § 1362(12). The CWA then, in turn, defines "pollutant” as the following: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. 33 U.S.C. § 1362(6). . Dividing authorizing jurisdiction between the EPA and the Corps, the CWA allocates responsibility to the Corps to issue permits for the discharge of dredged or fill material into navigable waters pursuant to section 404 (33 U.S.C. § 1344). The EPA, on the other hand, is responsible for issuing permits for all other discharges of pollutants under section 402 (33 U.S.C. § 1342). . Specifically, "[t]he Corps’ on-site investigator reported that he found ‘no evidence of any discharges regulated under section 404 of the Clean Water Act.’” 742 F.2d at 910. . At oral argument, SOC contended that the recapture provision in section 404(f)(2) should be read broadly, in essence, to apply outside of the context of section (f)(1). According to SOC, the recapture provision states that "[a]ny discharge of dredged or fill material into the navigable waters incidental to any activity" that converts a wetland requires a permit. Thus, since Trinity’s drainage operation has as its purpose changing the use of the subject waters where “the reach of such waters” may be reduced, compliance with CWA via a permit is necessary. Under this interpretation, any discharge, even if de minimis, requires regulation. Although we need not decide this issue today, we point out that the argument contrasts with our decisions in Avoyelles III, 715 F.2d at 926 (stating that ”[r]ead together, the two parts of section 404(f) provide a narrow exemption for agricultural and silvicultural activities that have little or no adverse effect on the nation’s waters"). In Orleans, the statutory exemption under section 404(f) was not directly at issue, but we intimated its narrow application. . The Federal defendants express a similar concern. They assert that the district court did not rely on the existence of a discharge as the basis for its permanent injunction, and in fact made it clear that such a discharge was immaterial to its decision. Further, since the district court's finding of a discharge was based solely on two letters from the Fish and Wildlife Service, this can "hardly form a firm basis” for a conclusion that discharge has in fact occurred. They assert, nonetheless, that if this Court accepts the argument that the CWA requires permits only for discharge of a pollutant, the appropriate remedy would be to remand to the district court for reconsideration under a correct interpretation of the CWA — potentially, whether a discharge has occurred. . Proposed rules concerning a de minimis discharge are in the commentary phase. In the commentary, the Corps and the EPA note that the de minimis exclusion serves in part "to avoid duplicative regulation of dredging itself in waters within the jurisdictional scope of the Rivers and Harbors Act.” As the Corps and the EPA concede, however, "[o]ver the years, application of this 'de minimis’ language has become problematic, especially when applied to activities which did not involve dredging for the purposes of maintaining navigation in traditionally navigable waters.” 57 Fed.Reg. at 26895. Under its proposed rules, the new language would undertake to clarify by providing: [A]part from the exclusion for "normal dredging operations,” the term "discharge of dredged material” includes any discharge, i.e., addition or redeposition, of excavated material into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation, which has or would have the effect of destroying or degrading any area of the waters of the United States. The term "discharge of dredged material” does not include de minimis soil movement incidental to activities which do not or would not have such an effect.” Id.

Harmon Cove Condominium Ass'n v. Marsh

OPINION OF THE COURT SEITZ, Circuit Judge. Appellant Harmon Cove I Condominium Association, Inc. (the Association) appeals from the final order of the district court dismissing its action against John O. Marsh, Secretary of the Army (the Secretary), Hartz Mountain Industries, Inc. (HMI), and Hartz Mountain Associates (HMA). We have jurisdiction under 28 U.S.C. § 1291 (1982). I. In April 1974, HMI requested a permit to dredge and fill portions of the Hackensack River, in order to build the Harmon Cove condominium complex in Secaucus, New Jersey. The Secretary, acting through the U.S. Army Corps of Engineers (Corps), is authorized to grant such permission under Section 10 of the Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. § 403 (1982), and Section 404 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1344 (1982). On September 30, 1975 the Secretary issued Permit No. 9444, authorizing HMI to dredge and fill portions of the River in accordance with certain stipulated terms. The permit requires HMI to “maintain the structure or work authorized herein in good condition and in accordance with the plans and drawings attached.” A Special Condition of the permit provides that HMI is not relieved “from taking all proper steps to insure the integrity of the structure permitted herein and the safety of boats moored thereto from damage by wave wash [from passing vessels].” In addition, a Special Condition provides that “when the work authorized herein includes periodic maintenance dredging, it may be performed under the permit for 10 years from the date of issuance of the permit.” The permit was effective until September 30, 1985. HMI proceeded to build the condominium complex. On September 30, 1985 the Association filed this action. The complaint alleges HMI has delegated some of its duties under the permit to HMA. It then alleges that, despite the conditions of the permit, both HMI and HMA failed to maintain the marina area in good condition and in accordance with the plans approved by the Corps. It also alleges that HMI and HMA failed to prevent damage to the piers and embankments from wave wash and failed to perform periodic maintenance dredging. The failures of HMI and HMA are alleged to have resulted in damage to the marina and other structures comprising the condominium complex and to have created a potential for danger to condominium residents and other persons. Finally, the complaint alleges that the Association on several occasions had requested the Secretary to require HMA and HMI to comply with the conditions of the permit, but that the Secretary had taken no action. At a hearing on the defendants’ motions to dismiss, the district court stated that “there is no jurisdiction under the FWPCA for mandamus,” and that, even “assuming there [is] subject matter jurisdiction, it is inappropriate to grant [mandamus] here because what we have here is not a ministerial act, but a discretionary act in the nature of a decision of whether ... to prosecute.” By order entered on June 5, 1986 the district court dismissed the Association’s claims. This appeal followed. II. The first count of the complaint requested the issuance of a writ of mandamus under 28 U.S.C. § 1361 (1982) to compel the Secretary to enforce the conditions of the permit. The Association contends that the district court erred in dismissing its request. Our review of this issue is plenary- The Secretary makes two basic arguments in support of the district court’s order dismissing the Association’s mandamus petition: (1) the FWPCA precludes actions against him under Section 1361, and (2) in any event, mandamus is not available because the Secretary owes no non-discretionary duty to the Association. We shall assume without deciding that the FWPCA does not bar the Association’s claim under Section 1361, and turn to the Association’s contention that it is entitled to relief under that Section. The Supreme Court has stated that relief is available to a plaintiff under Section 1361 “only if he has exhausted all other avenues of relief and only if the defendant owes him a clear, nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984). This court has explained further that [i]n order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act “devoid of the exercise of judgment or discretion.” An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt. Richardson v. United States, 465 F.2d 844, 849 (3rd Cir.1972) (en banc) (citations omitted), rev. on other grounds, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); See also Naporano Metal and Iron Co. v. Secretary of Labor, 529 F.2d 537, 542 (3rd Cir.1976). In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) the Supreme Court stated that agency decisions whether to take enforcement action are generally committed to agency discretion. Id. at 831-32, 105 S.Ct. at 1655-56. For this reason, the Court concluded such decisions are presumptively immune from judicial review under the Administrative Procedure Act. Id. at 832, 105 S.Ct. at 1656. The Court noted that the presumption “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833, 105 S.Ct. at 1656 (footnote omitted). The Association argues that the Chaney principle that enforcement decisions are committed to agency discretion does not apply in this case. It contends that enforcement decisions of the type discussed in Chaney “were already made when the Secretary issued Permit No. 9444,” that “[t]he types of assessments discussed in [Chaney ] ... are not implicated in the present case at this stage,” and that “[t]he Secretary now has an obligation to act consistently with [the previously-made enforcement] determinations____” We must reject the Association’s argument. There is no support for the Association’s contention that enforcement decisions regarding Permit No. 9444 were made when the Secretary issued it. In addition, the Secretary’s decision whether to compel compliance with the conditions of the permit is a classic example of the enforcement decisions described in Chaney. In evaluating the Association’s claim that it is entitled to mandamus relief, following Chaney, we commence with the proposition that the Secretary’s decision whether to enforce compliance with the conditions of Permit No. 9444 is presumptively unre-viewable. The Association can rebut that presumption only by showing that pertinent sections of RHA or FWPCA provide guidelines for the Corps to follow in exercising its enforcement powers. The Association first contends that the permit itself imposes a duty on the Secretary to enforce compliance with its conditions. Even if a permit such as Permit No. 9444 could impose such a duty on the Secretary, nothing in the language of Permit No. 9444 limits the Secretary’s discretion. Accordingly, Permit No. 9444 does not by its terms impose a duty on the Secretary to enforce compliance with its conditions, much less provide guidelines. The Association next argues that Section 10 of the RHA, 33 U.S.C. § 403, imposes a duty on the Secretary to enforce compliance with the conditions of the permit. This provision, however, does not restrict the Secretary’s enforcement discretion in any way. For this reason, we conclude that Section 10 of the RHA does not impose a duty on the Secretary to enforce compliance with the provisions of the permit. The Association then contends that Section 404 of the FWPCA imposes a duty on the Secretary to enforce compliance with the conditions of the permit. Section 404 provides, in relevant part: Whenever on the basis of any information available to him the Secretary finds that any person is in violation of any condition or limitation set forth in a permit issued by the Secretary under this section, the Secretary shall issue an order requiring such person to comply with such condition or limitation, or the Secretary shall bring a civil action in accordance with paragraph (3) of this subsection. This section does not limit the Secretary’s discretion to enforce compliance with the conditions of the permit m the instant circumstances. The statute imposes no duty on the Secretary to make a finding of violation, because it contains no guidelines for the Secretary to follow in choosing to initiate enforcement activity. Thus, no mandamus remedy is available to the Association. Cf City of Seabrook v. Costle, 659 F.2d 1371, 1375 (5th Cir.1981) (construing virtually identical language of Section 113(a) of the Clean Air Act, 42 U.S.C. § 7413, and concluding that EPA Administrator does not have a nondiseretionary duty to make a finding regarding every alleged violation of a state implementation plan). The Association also asserts that the Secretary did not have unlimited discretion in determining the content of the permit issued to HMI. Therefore, the Association argues, “[t]he limitations on the Secretary’s discretion that guide the content of the permit when it is issued must logically extend to the Secretary’s duty to enforce the specifications and conditions of the permit once it has been issued.” Assuming the soundness of the premise, the Association fails to explain how its conclusion inexorably follows. Because the Association offers no support for its argument, and because the argument ignores the teachings of Chaney, and the statutory language, we must reject it. The Association argues finally that “it would be anomolous to suggest that the Secretary has no duty to ensure that [permit] guidelines are complied with after a permit has been issued.” The short answer is that in the absence of some guidelines binding the Secretary’s enforcement decisions, this court is bound by the Supreme Court’s ruling that such determinations are left to the Secretary’s discretion. Because we discern no guidelines for the Secretary to follow in deciding whether to find violations of permits, we conclude the Secretary’s decision is committed exclusively to his discretion. Consequently, the Secretary owed no duty to the Association. For this reason, the Association is not entitled to mandamus relief under Section 1361, and the district court properly dismissed count one of the complaint. III. The Association also contends the district court erred in dismissing its claims against HMI and HMA seeking to compel them to comply with the permit requirements and to pay for damages. The Association invoked jurisdiction of the district court under 28 U.S.C. § 1331 (1982). Our review of this issue is also plenary. The Association argues that it has stated claims against HMI and HMA under the RHA and FWPCA. It is well settled, however, that RHA does not explicitly provide a private cause of action, California v. Sierra Club, 451 U.S. 287, 289-90, 101 S.Ct. 1775, 1777, 68 L.Ed.2d 101 (1981), and that there are no implied private causes of action under Section 10 of RHA. Id. at 298. Similarly, the citizens’ suit provision of FWPCA, 33 U.S.C. § 1365 (1982), does not authorize an action against HMA or HMI on the facts alleged in this case, and the Supreme Court has held that there are no implied private causes of action under FWPCA. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 18, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981). While the Association contends that Sierra Club and Sea Clammers do not govern here because those cases did not involve alleged violations of permit conditions, the distinction is not a principled reason for declining to follow the clear teachings of those cases. Accordingly, we conclude that the Association’s claims against HMA and HMI were properly dismissed. IV. For the foregoing reasons, the order of the district court will be affirmed. . Section 1361 provides: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. . This case does not require us to consider whether regulations can provide the guidelines necessary to impose an enforceable duty on the Secretary. See Chaney, 470 U.S. at 836, 105 S.Ct. at 1658. . Section 10 provides: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, road-stead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . We note that the Secretary has promulgated regulations to implement Section 404 of FWPCA. We give substantial deference to the Secretary’s interpretation of the statute. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980). 33 C.F.R. 326.5 (1986) states that "Reevaluation of a permit to assure compliance with its purposes and conditions will be carried out as provided in 33 C.F.R. 325.7.” 33 C.F.R. 325.7 authorizes discretionary Corps action. . Because we are not confronted with a situation where the Secretary has made a finding that a permit holder is in violation of a condition of a permit, we need not consider whether mandamus relief would be available to compel the Secretary to issue an order requiring such person to comply with such condition or to bring a civil action against the permit holder. . The Association argues that even if the Secretary has complete discretion to decide whether to require compliance with permit conditions, it has still stated a claim for relief under Section 1361 because it is entitled to a determination of whether enforcement action will be taken, as well as the reasons for the decision, and it has yet to receive these. Because the Association does not point to anything requiring the Secretary to so determine, we find no legal basis for requiring him to do so. See abo City of Sea-brook, 659 F.2d at 1374-75. . The Association alternatively suggests that the district court entertain these claims on the basis of pendent jurisdiction. Since the mandamus claim was dismissed for failure to state a claim, the district court was justified in not exercising its pendent jurisdiction. Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir.1976).

Green Mountain Realty Corp. v. Leonard

LIPEZ, Circuit Judge. This appeal arises from an attempt by appellant Green Mountain Realty Corp. to secure permits and regulatory approval to construct a 140-foot cellular phone tower in Milton, Massachusetts. Green Mountain’s applications to the Town of Milton Zoning Board of Appeals (the “Board” or “BOA”) and the Milton Conservation Commission (the “Commission” or “MCC”), both necessary steps in the approval process, were denied. Green Mountain subsequently challenged those decisions in the United States District Court for the District of Massachusetts, naming the BOA, the MCC, and the BOA’s individual members as defendants. It argued that the decisions of the BOA and the MCC were not supported by “substantial evidence,” as required by the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332(c)(7)(B)(iii), and that the decisions also constituted an “effective prohibition” on the provision of wireless services in the area, also in violation of the TCA, id. § 332(c)(7)(B)(i)(II). Green Mountain also claimed that the BOA’s action exceeded its authority and was arbitrary and capricious, violating Massachusetts state law. The district court granted summary judgment for the BOA and MCC, finding that the decisions of those bodies complied with governing law, and this appeal ensued. We affirm the district court’s decisions with regard to Green Mountain’s substantial evidence claims against the BOA and MCC. Given the deference due to the decisions of a local regulatory body under the substantial evidence rubric, we will not disturb the district court’s decisions on these issues. However, the district court did not adequately address Green Mountain’s evidence supporting its effective prohibition claim against the BOA and completely failed to address the effective prohibition claim against the MCC. These are not claims that we should decide in the first instance, dependent as they are on factual findings to be made by the district court. Accordingly, we vacate the district court’s grant of summary judgment in favor of the BOA and MCC on Green Mountain’s effective prohibition claims and remand for reconsideration of those claims. I. A. The Proposed Site Green Mountain owns and manages personal wireless communications facilities (“PWCFs”), commonly known as cellular phone towers, as well as other tower facilities. Green Mountain leases space on PWCFs to federally licensed providers of wireless telecommunications services (“carriers”), who mount antennae on the PWCFs to service their cellular networks. On October 20, 2008, Green Mountain entered into an agreement with an agency of the Commonwealth of Massachusetts to lease land located adjacent to Interstate 93 (“1-93”) in Milton, Massachusetts. The land is an unzoned triangular section, totaling approximately 2,700 square feet, formed by the intersection of 1-93 and the Exit 3 southbound on-ramp leading to 1-93 (the “Site”). The Site is in close proximity to Blue Hills Reservation, a Massachusetts state park, and the Carisbrooke Road residential neighborhood. The purpose of the lease was to enable Green Mountain to construct a PWCF on the site, and Green Mountain obtained letters of intent from two carriers, T-Mobile and metroPCS, stating their intention to locate antennae on the proposed tower. The Site was chosen because it is located within an area of degraded service for certain carriers, including T-Mobile and metroPCS. According to Green Mountain, the section of 1-93 near the Site “has consistently suffered from a lack of adequate telecommunications coverage resulting in dropped calls, a possibility of being unable to complete emergency calls and an inconvenience to the traveling public.” Before Green Mountain could begin construction, it had to obtain regulatory approval from the BOA and MCC. B. The BOA Proceeding The Zoning Bylaws of the Town of Milton (“Bylaws”) include a subsection “regulat[ing] the siting, construction and removal of wireless telecommunications facilities so as to promote the safety, welfare and aesthetic interests of the Town of Milton.” Bylaws § 111(G)(1). Pursuant to the Bylaws, a special permit must be issued by the Board prior to construction of a PWCF or other telecommunications facility. Id. § 111(G)(3)(c). To obtain a special permit, one must submit a detailed application to the Board, participate in a public hearing on the application, pay any fees assessed by the Board to fund review by independent consultants chosen by the Board, as well as cooperate with those consultants in their review. The Board will issue a special permit only if three conditions are met: “(1) existing facilities do not adequately address the need for service, (2) there exists no feasible alternative to the proposal that would adequately address the need in a less intrusive manner, and (3) the proposed use is in harmony with the general purpose and intent” of the Bylaws to promote the Town’s “safety, welfare and aesthetic interests.” Id. § 111(G)(4)(d), (G)(1). In accordance with these requirements, Green Mountain submitted an application to the Board on May 21, 2009, seeking a special permit for construction of a 140-foot monopole tower on the Site. The application noted: The proposed facility will consist of a 140' monopole designed to accommodate up to five (5) antenna mounts for wireless carriers as well as Mass Highway Department video equipment.... An eight foot high chain link fence will be installed around the tower base for security purposes to comply with Mass Highway requirements to minimize visual obstructions for merging traffic. The plan also included space for ground equipment to service the monopole and antennae. According to Green Mountain, “radio frequency analysis provided to us by our prospective tenants has indicated that 100' would be the lowest mounting height that effectively fills the current coverage gap.” Because “carriers’ [antennae] must be separated from each other’s installation by approximately 10',” the tower must be at least 140 feet to accommodate five different carriers. Along with its application, Green Mountain submitted statements from metroPCS and T-Mobile indicating the existence of a coverage gap and the need for the PWCF. Green Mountain also filed a statement that it had considered existing structures, as well as alternate sites, and concluded that a PWCF at the proposed Site was the only feasible option. It submitted numerous maps showing the coverage provided by various carriers.' In response to suggestions from neighbors and other interested parties, Green Mountain considered five alternative sites, but rejected each as unworkable. It explained that the chosen Site was suitable because “[t]he subject property is non-residential in nature, has existing small towers in place, is located away from residential uses, and has reasonable vehicle access and availability of utilities.” Green Mountain also submitted a National Environmental Policy Act (“NEPA”) Report that evaluated the tower’s potential impact on environmental and historical areas. The NEPA Report, which was prepared by consultants, did not find any significant impact on the environment or historical sites. Both Green Mountain and those opposed to the PWCF project attempted to document how the tower would affect the landscape and views in the surrounding area, especially within the Blue Hills Reservation. Green Mountain raised a crane at the Site to the approximate height of the proposed tower and took pictures from various locations. It is undisputed that the tower would be visible from several areas within the Blue Hills Reservation, including from two of its highest hills. The tower would also be visible from the Carisbrooke Road neighborhood. Green Mountain reported that the proposed tower would not carry Federal Aviation Administration markings or lights, and it suggested methods to camouflage the tower to the extent possible. At public hearings held on June 16, July 13, and August 19, 2009, there was almost unanimous public opposition to the proposed tower. While the BOA received one letter in support of the project, no interested citizen spoke in favor of the project and numerous people testified in opposition. Representatives of the Friends of the Blue Hills, a charitable trust formed to restore, preserve, and protect the Reservation, argued that the need for the tower did not outweigh the significant negative aesthetic effects. Several other concerned citizens spoke at the hearings, and the BOA received petitions signed by twenty-seven Carisbrooke Road neighborhood residents expressing concerns about the tower’s aesthetic impact on the Blue Hills Reservation and nearby neighborhoods. On August 19, 2009, the BOA voted to deny Green Mountain’s application for a special permit. In a written denial, issued on September 24, 2009, it emphasized the public opposition to the proposed tower and the importance of protecting the character and aesthetic beauty of the Blue Hills Reservation. The Board further noted that “[s]uch a monopole would also be visible to the Carisbrooke Road neighborhood in particular and would substantially detract from the character of the neighborhood.” Additionally, the Board found that “[t]he existing coverage while not perfect is reasonable and adequate under all of the circumstances.” In reaching this conclusion, the Board relied on the percentage of dropped calls mentioned by Green Mountain’s attorney at a public hearing — approximately 0.66% — and not the figure provided by an engineer for one of the carriers, 2.00%-3.00%. Ultimately, the Board found that Green Mountain “failed to carry its burden of proof for the issuance of a special permit” because it failed to show that the proposed tower “promote[s] the safety, welfare or aesthetic interests of the Town of Milton” and thus was “not in harmony with the [zoning] Bylaw.” C. The MCC Proceeding The MCC is a local body charged with administering the Milton Wetlands Bylaws (distinct from the Zoning Bylaws), as well as the Massachusetts Wetlands Protection Act (“WPA”), Mass. Gen. Laws c. 131, § 40. The WPA provides, inter alia, that no person shall “alter ... any riverfront area” without receiving authorization from the appropriate conservation commission or other body. Id. Under the terms of the WPA, [i]n the case of riverfront areas, no order issued by a conservation commission ... shall permit any work unless the applicant, in addition to meeting the otherwise applicable requirements of this section, has proved by a preponderance of the evidence that (1) such work, including proposed mitigation measures, will have no significant adverse impact [on various environmental interests] ..., and (2) there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects.... Id. Pursuant to Massachusetts regulations, the MCC must presume that the affected riverfront area is significant to the various environmental interests identified by the WPA. 310 Mass.Code Regs. 10.58(3). However, “[t]he presumption is rebuttable and may be overcome by a clear showing that the riverfront area does not play a role in the protection of one or more of these interests.” Id. The WPA “establishes minimum Statewide standards leaving local communities free to adopt more stringent controls.” T.D.J. Dev. Corp. v. Conservation Comm’n of N. Andover., 36 Mass.App.Ct. 124, 629 N.E.2d 328, 330 (1994). “When a municipality adopts a by-law or ordinance that is consistent with the [WPA], but that imposes more stringent controls than the standards set by the Legislature, the local requirement trumps what is required under [the WPA].” Id. Milton has adopted wetlands bylaws supplementing the WPA. The application process laid out in those bylaws largely tracks that established by the WPA and charges the MCC with approving or denying applications and issuing permits for work covered by the bylaws and the WPA. Milton Wetlands Bylaws, ch. 15, § IIA. The Milton Wetlands Bylaws also create a “non-disturbance zone” extending 25 feet from the edge of the protected wetland. Id. § XI. Any activity altering the zone is prohibited without a vote of the majority of the MCC and a finding that “granting of such relief will not have a significant adverse impact upon the interests protected by [the bylaws].” Id. Because of its proximity to the Blue Hills River, the Site was subject to the WPA and Milton Wetlands Bylaws and the specific provisions relating to riverfront areas. On February 12, 2009, Green Mountain submitted the requisite notice and request for approval, emphasizing that the Site was already degraded by the presence of 1-93. It noted that while 4,612 square feet of riverfront area would be altered by the proposed project, only 92 square feet fell within 100 feet of the Blue Hills River; the remainder was not only more than 100 feet away from the river, but also separated from the river by the I-93 on-ramp, which is itself roughly 100 feet from the river. Green Mountain also pointed out that only 109 square feet of Bordering Vegetated Wetland (“BVW”), a category of protected land, would be affected by the project. It acknowledged that this area “will be unavoidably impacted.” It emphasized, however, that “this BVW is already in a state of chronic impact due to its location between the highway and its on-ramp. Sand, salt, trash and untreated stormwater are repeatedly discharged to this wetland from the concrete surfaces directly adjacent to the proposed cell tower site.” Green Mountain argued that because of proposed mitigation measures, its project would actually improve the degraded area. Green Mountain’s application was discussed at a series of MCC meetings. The minutes for a March 10, 2009 meeting state, “Applicant did not address Commission concerns: Aesthetics affecting Blue Hills, alternative analysis[] regarding site location and tower height efficiency ratings and failed to address the Town by Law [sic] regarding the ‘no significant adverse impact’ standard for justifying a waiver of the non-disturbance regulation.” In several subsequent meetings, Green Mountain attempted to address these concerns. At the request of the MCC, Green Mountain submitted the NEPA Report it had previously submitted to the BOA. It also proposed a series of mitigation measures to limit the impact of the project and improve the area. The MCC also requested an alternative site analysis prepared by the Massachusetts Highway Department that Green Mountain referred to at an MCC meeting. Green Mountain has since acknowledged that this analysis did not exist in written form. At the May 12, 2009 meeting of the MCC, Green Mountain requested that the hearing on its proposal be continued until after the BOA made a decision. After the BOA denied Green Mountain’s application, the MCC met on September 15, 2009. The minutes of that meeting reflect the MCC’s displeasure with Green Mountain’s failure to respond to its requests for information. In particular, the Commission was concerned that Green Mountain failed to provide a meaningful analysis of potential alternative sites that the developer had repeatedly referred to and the Commission had requested. On September 19, 2009, the MCC voted to deny Green Mountain’s request for relief from the non-disturbance zone established by the Milton Wetlands Bylaws, as well as its application under the WPA. In a brief written statement issued on October 9, 2009, the MCC explained that Green ' Mountain’s failure to provide a meaningful alternatives analysis prevented it from approving the proposal. It noted that such an analysis, required by Massachusetts regulations, had been requested on multiple occasions. Additionally, the MCC emphasized the importance of the aesthetic interest it is charged with protecting. It stated that “the height of the tower was, and remains, an important factor for consideration .... Once again, the applicant failed to provide the requested data relating to the efficacy of a lower tower height, which data was requested on three occasions.” Responding to Green Mountain’s argument that the Site was already degraded, the MCC stated that “it is the opinion of the MCC that if those wetlands, which the applicant seeks to further alter, are already degraded, those wetlands are in greater need of protection, rather than less.” D. The District Court Proceeding Green Mountain challenged the decisions of the BOA and MCC in a single action in the United States District Court for the District of Massachusetts, arguing that they violated multiple provisions of the TCA. “[T]he TCA reflects Congress’s intent to expand wireless services and increase competition among ... providers.” Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir.2001). “Under the TCA, local governments retain control ‘over decisions regarding the placement, construction, and modification of personal wireless service facilities.’ ” Id. (quoting 47 U.S.C. § 332(c)(7)(A)). However, “this control is now subject to several substantive and procedural limitations that ‘subject [local governments] to an outer limit’ upon their ability to regulate personal wireless services land use issues.” Id. (alterations in original) (quoting Town of Amherst v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 15 (1st Cir.1999)). One of the primary limits on local authority is the requirement that “[a]ny decision ... to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in the written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Another is the requirement that local decisions not “prohibit or have the effect of prohibiting the provision of personal wireless services.” Id. § 332(c)(7)(B)(i)(II). Green Mountain argued both that the decisions of the BOA and the MCC were not supported by “substantial evidence,” and that they also constituted an impermissible “effective prohibition” on the provision of wireless services in the area. Green Mountain also claimed that the BOA’s action exceeded its authority and was arbitrary and capricious in violation of state law. In evaluating an “effective prohibition” claim, “district courts are free to consider additional evidence” not in the administrative record. Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.2002); see also Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 24 (1st Cir.2002) (“On the ‘effective prohibition’ issue, district courts may take evidence beyond the record.”). Green Mountain offered additional evidence to the district court on its effective prohibition claim, beginning with extensive expert testimony to establish the existence of a coverage gap. It also offered affidavits and deposition testimony from the president of Green Mountain, as well as from a consultant, describing why Green Mountain felt that there were no viable alternatives to the proposed site. They noted that a suitable site requires appropriate topography, access for maintenance, utility connections, size, and availability. Green Mountain also noted that it explored the possibility of using a network of smaller antennae, rather than a single large PWCF, but determined that this option was not feasible. The district court granted summary judgment for the defendants on all of Green Mountain’s claims. First, the court found that the BOA’s decision was supported by substantial evidence. Explaining this conclusion, it stated that Green Mountain failed to show that existing service was inadequate and that the BOA had sufficient justification to deny the permit because of aesthetic concerns. Furthermore, it found that Green Mountain failed to adequately explore alternative sites. Second, on the effective prohibition claim, the court found with scant discussion that Green Mountain failed to show that the standard applied by the BOA would be impossible for any applicant to meet, and that Green Mountain had not demonstrated that its proposal was the only feasible plan. Finally, the court found that Green Mountain failed to meet its burden of showing that the MCC’s conclusion that the project would have a significant adverse impact on surrounding wetlands was not supported by substantial evidence. The district court’s written decision did not address Green Mountain’s argument that the MCC’s decision was an effective prohibition or Green Mountain’s state law claim challenging the BOA’s decision. II. A. The Substantial Evidence Standard In evaluating whether a decision is supported by substantial evidence, we review the written record considered as a whole. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing court must take into account contradictory evidence in the record. But the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Sw. Bell, 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir.1999)). Thus, “[t]he ‘substantial evidence’ standard of review is the same as that traditionally applicable to a review of an administrative agency’s findings of fact ... [, and] judicial review under this standard, even at the summary judgment stage is narrow.” Id. (citation omitted) (internal quotation marks omitted). Despite this limited oversight, we have cautioned that “substantial evidence review is not a rubber stamp.” Penobscot Air, 164 F.3d at 718 n. 2. A local regulatory agency or other body “is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Sw. Bell, 244 F.3d at 59 (internal quotation marks omitted). Accordingly, decisions “must be set aside when the record before a Court of Appeals clearly precludes the agency’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” Penobscot Air, 164 F.3d at 718 (alterations omitted). Ultimately, the burden of demonstrating that the determination of a local authority is not supported by substantial evidence is with the party seeking approval, Sw. Bell, 244 F.3d at 63, and “courts defer to the decision of the local authority, provided that the local board picks between reasonable inferences from the record before it,” Nat’l Tower, 297 F.3d at 23. Because the focus of our review is the administrative record, “we ... apply the same legal standards that pertain in the district court and afford no special deference to that court’s decision.” Sw. Bell, 244 F.3d at 59 (internal quotation marks omitted). Therefore, we consider the decision of the district court only to the extent that it is persuasive. B. The BOA’s Decision: Substantial Evidence As described above, pursuant to the Milton Zoning Bylaws, the BOA may issue a special permit only if three conditions are met: “(1) existing facilities do not adequately address the need for service, (2) there exists no feasible alternative to the proposal that would adequately address the need in a less intrusive manner, and (3) the proposed use is in harmony with the general purpose and intent” of the bylaws. Bylaws § 111(G)(4)(d). Accordingly, a decision to deny issuance of a permit must be affirmed if there is substantial evidence supporting the Board’s finding that any one of these three factors is not present. In this case, the Board’s written decision addresses only two of the three factors — the adequacy of existing cellular coverage and the proposal’s consistency with the purpose and intent of the bylaws. 1. The Adequacy of Existing Coverage The BOA justifies its finding that the existing cellular coverage is adequate by pointing to the statement of Green Mountain’s attorney that approximately 2,000 of 300,000 calls are dropped in the coverage area. In particular, the BOA states that [w]hile there is a small dead spot in the area between Route 24 in Milton and Route 138 in Canton, the dropping of any 2,000 of 300,000 or [0.66%] of calls is a marginal loss of service when compared to the dramatic intrusion of the 140 foot monopole on the Reservation and near[b]y neighborhood. The existing coverage while not perfect is reasonable and adequate under all of the circumstances. Green Mountain argues here that the 0.66% figure was simply a misstatement by its attorney at a Board meeting, and that it was error for the Board to rely exclusively on this figure when it also presented testimony from engineers that the actual dropped call rate was much higher. It points to testimony of a T-Mobile engineer, estimating that the figure was actually 2-3%, as well as an affidavit submitted by the same engineer, stating that if the permit were denied “a significant area of inadequate, unreliable coverage would remain in T-Mobile’s wireless network. This lack of service area or ‘gap’ in coverage would adversely impact ... [T-Mobile’s ability] to provide ... decent coverage to traffic on 1-93 between SR-138 and SR-24.” Similarly, Green Mountain submitted an affidavit from an engineer employed by metroPCS stating that “Milton is an area where metroPCS has identified a need to locate a [PWCF]. A [PWCF] in this vicinity is necessary to provide coverage in the area and resolve a significant gap in metroPCS’ wireless network.” In these circumstances, we cannot conclude that the BOA’s finding regarding the adequacy of existing coverage was supported by substantial evidence. It was clearly erroneous for the BOA to adopt the dropped call figure mentioned by Green Mountain’s attorney — 0.66%—when Green Mountain presented evidence in the form of written statements and testimony from engineers employed by the carriers stating that a more significant coverage gap existed. See Sw. Bell, 244 F.3d at 59 (stating that a local regulatory agency “is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands” (quoting Penobscot Air, 164 F.3d at 718) (internal quotation marks omitted)). Disregarding the oral testimony of T-Mobile’s engineer, the district court accurately noted that neither of the statements submitted by the engineers provided quantifiable data identifying a coverage gap. However, we have never required that the percentage of calls dropped, or signal strength, cross a certain threshold before recognizing a significant gap. See Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir.2009) (stating that “[a]lso relevant could be data about percentages of unsuccessful calls or inadequate service during calls in the gap area,” but refusing to adopt a “bright-line” rule with regard to signal strength (emphasis added)); see also MetroPCS, Inc. v. City and Cnty. of San Francisco, 400 F.3d 715, 733 (9th Cir.2005) (“ ‘[Significant gap’ determinations are extremely fact-specific inquiries that defy any bright-line legal rule.”). Accordingly, while certainly valuable, such data is not essential. Additional evidence identifying a coverage gap, including data, was presented to the district court in connection with Green Mountain’s “effective prohibition” claim. However, in evaluating a “substantial evidence” claim, we are limited to the evidence in the record before the local body. See Sw. Bell, 244 F.3d at 58. Accordingly, we do not consider this additional evidence in reviewing the BOA’s decision under the substantial evidence standard. In the absence of any evidence to the contrary, statements from two different carriers identifying a coverage gap, as well as oral testimony indicating that 2-3% of calls in the area are dropped, is substantial evidence that existing facilities do not adequately address the need for service. Presented with this evidence, the Board, in its written decision, cherry-picked a single, non-testimonial statement by Green Mountain’s attorney and ignored the other evidence in the record. This the Board may not do. See Sw. Bell, 244 F.3d at 58 (“The reviewing court must take into account contradictory evidence in the record.”). Keeping in mind that we must review the record as a whole, id., the Board’s decision, relying solely on an attorney’s statement, is not based on substantial evidence. That is, taking into account the evidence to the contrary, it is not “adequate to support [the Board’s] conclusion.” Id. Thus, we must consider whether the other rationale relied upon by the Board supports its denial of the permit. 2. The Proposal’s Harmony With the Purpose and Intent of the Bylaws The subsection of the Milton Zoning Bylaws governing wireless telecommunications facilities states that its purpose is to “regulate the siting, construction and removal of wireless telecommunications facilities so as to promote the safety, welfare and aesthetic interests of the Town of Milton.” Bylaws § 111(G)(1). To further this purpose, the provision states an intent to “[discourage the construction or location of free-standing towers,” id. § 111(G)(1)(e), and to “[m]aintain and preserve the residential character of the Town of Milton by eliminating or minimizing the adverse visual and aesthetic impact of all wireless telecommunications facilities,” id. § 111(G)(1)(f). The Board’s written decision focuses on this aesthetic interest in denying Green Mountain’s application for a special permit. It states: [T]he construction of a 140' telecommunications monopole at the proposed location will be widely visible from the Reservation and will substantially detract from the view, vistas and natural setting of the Reservation. Such a monopole would also be visible to the Carisbrooke Road neighborhood in particular and would substantially detract from the character of the neighborhood.... [It] will effectively deprive [Carisbrooke Road] residents of one of the primary reasons they moved to this area. In addition, the Board noted the public opposition to the project and observed that the objections were not merely “a small number of generalized comments of concern or ‘not in my backyard’ complaints but rather constitute[] virtual unanimous concern of a thoughtful community to the unsightly intrusion of a 140' monopole upon their existing views and vistas of the Reservation from their residences and from the neighborhood generally.” The Board took special note of the objections raised by the Friends of the Blue Hills, noting that “[t]he informed opposition of the Friends to the proposed monopole is interposed, in good faith, based upon over 44 years of experience in protecting and preserving this historic Reservation.” Ultimately, the Board found that “[t]he proposed monopole does not promote the safety, welfare or aesthetic interests of the Town of Milton as required by the Wireless Telecommunications Facilities Bylaw,” and thus that Green Mountain’s application “is not in harmony with the general purpose and intent of the Bylaw.” The question of whether there is sufficient evidence in the record to support the Board’s “aesthetic interests” justification is close. A number of courts, including this one, have recognized that cell towers are inherently aesthetically displeasing. See Sw. Bell, 244 F.3d at 61; VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 (7th Cir. 2003) (“[BJecause ‘few people would argue that telecommunications towers are aesthetically pleasing,’ a local zoning board’s ‘aesthetic judgment must be grounded in the specifics of the case.’ ” (quoting Sw. Bell, 244 F.3d at 61)). As said in Helcher v. Dearborn County, 595 F.3d 710, 723 (7th Cir.2010), “[although local governments are entitled to weigh the aesthetic effect of a wireless tower in deciding whether to permit its construction, generalized aesthetic concerns are not alone sufficient to justify the denial of a permit.” Rather, an “aesthetic judgment must be grounded in the specifics of the case.” Id. In Southwestern Bell, we explained that, under the TCA, local boards retain their “traditional prerogative to restrict and control development based upon aesthetic considerations, so long as those judgments do not mask, for example, a de facto prohibition of personal wireless services.” Id. at 61. Furthermore, we noted that, “[i]n assessing the visual impact of the proposed tower, the Board was entitled to make an aesthetic judgment about whether that impact was minimal, without justifying that judgment by reference to an economic or other quantifiable impact.” Id. However, in order to ensure that aesthetic considerations were not used as a pretext to prohibit all tower-like structures, we cautioned that “generalized aesthetic concerns ... applicable to any tower, regardless of location” would not suffice. Id. (citing Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir.1999)). Similarly, we noted that objections from local residents or zoning boards that reflect a misunderstanding as to the tower or the site, or that are contrary to the objective evidence, cannot be the basis for a denial. Id. (listing cases). Here, the Board cited in support of its denial on aesthetic grounds a petition signed by 27 neighborhood residents. If the decision rested on those stated complaints alone we would be given pause. Such reliance presents a risk that the accomplishment of the Congressional goals in the TCA could, contrary to Congress’s intent, be defeated by the “generalized aesthetic concerns” of local constituents. Members of local boards are likely “to find the opinions of angry constituents compelling.” PrimeCo Personal Commc’ns, L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1063 (N.D.Ill.1998) (cited in Oyster Bay, 166 F.3d at 496). Local decisions on aesthetic grounds are more often affirmed when there is objective evidence to support the conclusions, such as photographs, site plans, surveys, and the like. The Board’s decision here rests on such objective evidence. The Board saw plans indicating that, although there are some existing utility poles on the site, the proposed tower, at 140 feet, would be more visible than everything already in place. In making its decision, the Board also relied on photographs of the crane tests conducted by Green Mountain and residents’ testimony about those tests to measure the visual impact of the proposed tower. Additionally, the Board received statements from the Friends of the Blue Hills describing the effect of the tower on views from that historic state park, providing some limited support. The parties dispute how widely visible the proposed tower would be from within the Reservation. However, the evidence before the Board indicated that the tower would be visible from at least four different locations within the 8,000-acre Reservation. In aggregate, this evidence is sufficiently grounded in the specifics of the case to satisfy the substantial evidence standard. See Helcher, 595 F.3d at 724 (“The photographic representations of the tower as viewed from the property of ... neighbors, accompanied by the objections of many residents who purchased land and built homes in this area specifically because of the natural views, provided the Zoning Board with substantial evidence to reject the permit.”); Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir.2009) (finding substantial evidence supporting denial of permit where the city council reviewed “mockups of the proposed [PJWCFs and a report that detailed the aesthetic values at stake,” as well as public comments, and concluded that the tower would “detract from the residential character of the neighborhood”); VoiceStream Minneapolis, 342 F.3d 818, 832 (finding substantial evidence where decision was based on “an on site investigation, and a map ... documenting] that the 185-foot tower would be visible for several miles along [a scenic] [rjiverway,” as well as testimony from “Park Service representatives, local residents and various state and local entities” documenting how the tower would interfere with the unique scenery on the river-way). Put another way, the evidence before the Board was “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion” that the proposed tower was not consistent with the purpose and intent of the bylaws. Sw. Bell, 244 F.3d at 58. Green Mountain has not carried its burden of demonstrating that the Board’s decision is not supported by substantial evidence. See id. at 62. C. The MCC’s Decision: Substantial Evidence As noted, pursuant to the WPA, Green Mountain must show that its proposal would “have no significant adverse impact on the riverfront area” with regard to the various environmental interests protected by the act. Mass. Gen. Laws ch. 131, § 40. Additionally, Green Mountain must show that “there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects.” Id. Massachusetts regulations create a presumption that a riverfront area, such as that at issue here, is significant to the interests protected by the WPA. 310 Mass. Code Regs. § 10.58(3). This presumption may be overcome only by “a clear showing that the riverfront area does not play a role in the protection of one or more of these interests.” Id. In this case, the MCC’s written decision explained that: 1) the fact that the site was already degraded by the presence of 1-93 did not by itself mean that Green Mountain’s project would have no adverse effect; 2) Green Mountain had not provided a requisite alternatives analysis demonstrating that there were no less harmful alternatives to its proposal; and 3) the proposed tower would negatively affect the aesthetics of the area. On appeal, Green Mountain argues that the MCC’s decision is not supported by substantial evidence. It relies on a letter submitted to the MCC by its environmental consultant, Alec MacLeod, on March 19, 2009, asserting that its proposal will not adversely affect the interests protected by the Bylaws and the WPA. This letter states: • The proposed project is located toward the narrow end of a triangle created by an on-ramp and the south-bound lanes of Route 93. • In this highly energetic and chronically disturbed location, it can be reasonably assumed that wildlife and fisheries habitat will not be a concern. • Given the site’s disconnection from the surrounding natural hydrology, it is also reasonable to conclude that the project will have no significant effect on public or private water supply. • Given the overwhelming stormwater effects created by the adjacent highway, and given that the only new impervious surfaces are the actual mechanicals supporting the tower and the 8x8 foot tower foundation, there should be no significant effect on storm damage or water pollution. • Sediment and erosion control will be accomplished by installation of a sediment and erosion control barrier and by virtue of the fact that the access surfaces will be gravel, not pavement. • No recreation can take place within or near the proposed area. This letter, and specifically this bullet-point list, is the sum of the evidence on which Green Mountain relies in its briefing. These statements, however, do not undermine the MCC’s conclusion. As the Commission points out in its brief, MacLeod also reported that “any flows entering the site from the surrounding highway surfaces slowly pereolate[ ] outward through the sandy substrate, contributing to the Blue Hill River via groundwater flow.” Thus, the Commission found, any further construction on the site, however slight, will adversely affect the wetlands area. Furthermore, it notes that Green Mountain’s application acknowledges that “[d]ue to the necessary location of the cell tower compound and ... minimization of resource area impacts, 109 square feet of [bordering vegetated wetland] will be unavoidably impacted.” The application concedes that there is no cost-effective way to replicate this lost area. Although the degraded condition of the site sets the baseline against which the adverse impact of Green Mountain’s proposal is measured, it is not dispositive. Even if the site is already degraded, the WPA and Milton Wetlands Bylaws require that the project have no further adverse impact. See Mass. Gen. Laws ch. 131, § 40. The sum of Green Mountain’s evidence as to this impact was MacLeod’s conclusory statements in his letter. Given that Green Mountain had the burden of establishing no adverse impact, and given that the Commission found that it had not sustained that burden, we may only find for Green Mountain if we conclude that their evidence compelled a contrary conclusion. See Nat’l Tower, 297 F.3d at 23 (“[C]ourts defer to the decision of the local authority, provided that the local board picks between reasonable inferences from the record before it.”). For the reasons identified by the MCC, Green Mountain’s evidence is not so compelling. Furthermore, there was substantial evidence supporting the Commission’s conclusion that Green Mountain failed to carry its burden of proving by a preponderance of the evidence that “there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects.” Mass. Gen. Laws ch. 131, § 40. Although Green Mountain provided a document that it styled an “alternative siting analysis,” the MCC explained its inadequacy. The minutes of the MCC’s September 15, 2009 meeting state: “[Green Mountain] submitted a map, which purports to be an ‘alternative site analysis’ proposed by the applicant. ... The site analysis is limited to the entrance ramp and exit ramp at the same locale, rather than an area wide assessment. The applicant did not provide a tower height efficiency analysis.” It was reasonable for the Commission to conclude that this single-page document, which failed to evaluate any locations outside of the immediate vicinity of the proposed Site or any alternative tower designs and/or heights, did not carry the applicant’s burden of showing that there were no alternatives to its proposal. The MCC also noted that Green Mountain failed to provide an alternatives analysis conducted by the Mass. Highway Dept. The written explanation of the MCC’s decisión states that despite its repeated requests for this alternatives analysis, which was purported to evaluate both alternative locations and different tower heights, “[t]o date, the applicant has failed, neglected or refused to provide the data which was requested.” The MCC goes on to note, “At a scheduled hearing date, on September 15, 2009, the representative of the applicant acknowledged that Mass Highway indicated that the analysis had been done, but he did not think it actually existed [in written form].” This sequence of events supports the MCC’s conclusion as to the inadequacy of Green Mountain’s attempts to show a lack of alternatives. Over the course of five months and three Commission meetings, Green Mountain referred to the Mass. Highway Dept, study as proof of a lack of alternatives and agreed to provide it to the MCC. It was not until after the BOA had rejected Green Mountain’s application that Green Mountain acknowledged that the study did not exist in written form, offering no other documentation of the study. Accordingly, the only evidence before the Commission on the issue of alternatives was Green Mountain’s map of the 1-93 exit 3 location, which evaluated only a fraction of the relevant area and provided no information regarding alternative heights or designs. Given Green Mountain’s lack of evidence as to less impactful alternatives— an important burden imposed on the developer by the governing law — the MCC was entitled to conclude that the developer had failed to carry its burden. See Mass. Gen. Laws ch. 131, § 40. III. A. The Effective Prohibition Standard We have explained that the effective prohibition standard “can be violated even if substantial evidence exists to support the denial of an individual permit under the terms of the town’s ordinances.” Nat’l Tower, 297 F.3d at 20. ‘When a carrier claims an individual denial is an effective prohibition, virtually all circuits require courts to (1) find a ‘significant gap’ in coverage exists in an area and (2) consider whether alternatives to the carrier’s proposed solution to that gap mean that there is no effective prohibition.” Omnipoint Holdings, 586 F.3d at 48. Therefore, while “an individual denial is not automatically a forbidden prohibition ... [,] we [cannot] rule out the possibility that— based on language or circumstances— some individual decisions could be shown to reflect, or represent, an effective prohibition on personal wireless service.” Town of Amherst, 173 F.3d at 14. With regard to the first prong of this test, a significant gap must be “large enough in terms of physical size and number of users affected” to distinguish it from “a mere, and statutorily permissible, dead spot.” Second Generation, 313 F.3d at 631. Indeed, “[flederal regulations contemplate that areas enjoying adequate coverage will still include spots without reliable service.” Id. (citing 360° Commc’ns Co. v. Bd. of Supervisors of Albemarle Cnty., 211 F.3d 79, 87 (4th Cir.2000)). Dead spots are defined as “[s]mall areas within a service area where the field strength is lower than the minimum level for reliable service,” 47 C.F.R. § 22.99, and the presence of dead spots does not mean that service is per se inadequate, see id. § 22.911(b). Additionally, we have held that the provision of coverage by one carrier in a certain area does not insulate a regulatory decision denying other carriers the ability to provide service in the same area from a claim of effective prohibition. Second Generation, 313 F.3d at 633-34. Alternatively stated, “[t]he fact that some carrier provides some service to some consumers does not in itself mean that the town has not effectively prohibited services to other consumers.” Id. at 634. Evaluating the second prong of the effective prohibition test, we have “identified two sets of circumstances where there is a prohibition ‘in effect.’ ” Id. at 630. “The first is where the town sets or administers criteria which are impossible for any applicant to meet.... The second involves the situation where the plaintiffs existing application is the only feasible plan; in that case, denial of the plaintiffs application ‘might amount to prohibiting personal wireless service.’ ” Id. (quoting Town of Amherst, 173 F.3d at 14). These two examples do not, however, represent the only ways to demonstrate an impermissible prohibition on wireless services. “[T]here can be no general rule classifying what is an effective prohibition. It is a case-by-case determination.” Id. In order to demonstrate an effective prohibition, the plaintiff must “show from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.” Town of Amherst, 173 F.3d at 14. An effective prohibition claim “presentís] questions that a federal district court determines in the first instance without any deference to the [local regulatory authority].” Nat’l Tower, 297 F.3d at 22. Thus, in evaluating an effective prohibition claim, unlike in our review of a substantial evidence challenge, we review the, district court’s opinion, not that of the Board, see Omnipoint Holdings, 586 F.3d at 47, and in determining whether an effective prohibition exists, a district court may rely on “evidence ... presented in court that is outside of the administrative record compiled by the local authority,” Nat’l Tower, 297 F.3d at 22. Therefore, “[i]f the district court makes evidentiary findings ... that go beyond the administrative record, ... we will review its factual findings for clear error and its legal conclusions de novo.” Id. B. The District Court’s Effective Prohibition Analysis As described, the’effective prohibition analysis is a two-part test, asking first whether there is a gap in coverage and, second, whether the absence of feasible alternatives to the proposed tower means that denial of an application effectively prohibits all wireless service in' the area. Omnipoint Holdings, 586 F.3d at 48. The parties disagree as to whether a coverage gap exists. In evaluating the effective prohibition claim against the Board, the district court assumed that such a gap existed, focusing its analysis on the second prong of the test. It held that, regardless of the outcome of the coverage issue, Green Mountain had not met its burden of demonstrating that there are no feasible alternatives or that the town’s Bylaws are impossible for any applicant to meet. Green Mountain Realty Corp. v. Leonard, No. 09-11559, 2011 WL 1898239, at *4 (D.Mass. May 18, 2011). With regard to the effective prohibition claim against the MCC, the court’s written decision makes no findings and states no conclusion. In explaining its decision on the effective prohibition claim against the Board, the court noted that the Board had approved other permit applications in the past and referred to the Board’s conclusory statement that the alternative sites identified by local residents to the Board may have been feasible alternatives. However, the court did not address the additional evidence provided by Green Mountain demonstrating its attempts to identify and evaluate alternative sites. The burden here is on Green Mountain. As we have explained, “[f]or a telecommunications provider to argue that a permit denial is impermissible because there are no alternative sites, it must develop a record demonstrating that it has made a full effort to evaluate the other available alternatives and that the alternatives are not feasible to serve its customers.” Sw. Bell, 244 F.3d at 63; see also Omnipoint Holdings, 586 F.3d at 52 (“The burden is on the carrier to prove it investigated thoroughly the possibility of other viable alternatives before concluding no other feasible plan was available.” (internal quotation marks omitted)). In this case, however, the district court did not acknowledge Green Mountain’s attempt to carry its burden or the additional evidence it submitted. In particular, Green Mountain submitted affidavits before the district court from its own president, as well as from the owner and manager of an independent consulting company hired to aid Green Mountain in the permitting process. These affidavits described efforts to identify alternative sites and explained why the sites suggested by local residents were unacceptable. The latter affidavit explained: [The consulting company] evaluated other potential alternatives and alternative sites within the coverage gap. The other potential alternatives were either unavailable, were not technically feasible or required greater zoning relief than the proposed Site and were deemed inferior to the chosen site. Nearly all of the land in Milton in the coverage gap is unsuitable to construct a PWCF due to the presence of zoning or conservation restrictions, wetlands, steep slopes, and/or no-curb cut areas. Similarly, the affidavit from Green Mountain’s president stated that he explored the possibility of locating a tower or antennae on an existing structure or constructing a network of dispersed antennae, but ultimately decided that neither option was viable. His affidavit also described efforts to locate alternative sites and the evaluation of the local residents’ proposed sites. Supplementing these affidavits, Green Mountain also submitted deposition testimony from both its president and the consultant describing efforts to locate and evaluate alternative sites. In addition, Green Mountain submitted a newly prepared report from an independent engineering firm, hired to evaluate alternative locations “in the vicinity of the interchange for the proposed cell tower.” While this report did not evaluate sites outside of the immediate area around Exit 3 in Milton, it did conclude that Green Mountain’s preferred site is “best suited for the tower installation, and likely the only location that [the Massachusetts Department of Transportation] will approve.” Finally, Green Mountain submitted statements, deposition testimony, and coverage maps from engineers working for T-Mobile and metroPCS. This evidence tended to show that a coverage gap existed within the networks of each of these carriers. We express no opinion as to whether this evidence is sufficient to carry Green Mountain’s burden of establishing that there were no feasible alternatives to its proposal and that the Board’s decision thus constituted an effective prohibition. Not surprisingly, the appellees argue, as they did before the district court, that the reasons given by Green Mountain for rejecting the alternate sites identified by local residents were inadequate. Green Mountain is correct that the district court should have made written findings resolving these factual disputes and evaluating the evidence offered by the BOA. Likewise, the court should have addressed the effective prohibition claim against the MCC in a similar fashion. Unlike the substantial evidence analysis, an effective prohibition claim “presents] questions that a federal district court determines in the first instance without any deference to the [local regulatory authority],” Nat’l Tower, 297 F.3d at 22, and a district court may rely on “evidence ... presented in court that is outside of the administrative record compiled by the local authority,” id. Here, the court failed to consider the evidence submitted by Green Mountain documenting its attempts to locate and evaluate alternative sites. Additionally, the court did not address Green Mountain’s effective prohibition challenge to the MCC’s decision. Accordingly, we must remand to the district court for reconsideration of the effective prohibition claims against the BOA and MCC. We leave it to the discretion of the district court whether to evaluate the claims on the current record or allow the parties to submit additional evidence. IV. For the foregoing reasons, we affirm the district court’s decisions with regard to Green Mountain’s substantial evidence claims against the BOA and MCC. However, we vacate the district court’s grant of summary judgment in favor of the BOA and MCC on Green Mountain’s effective prohibition claims, and remand the case to the district court for consideration of these claims. Each party shall bear their own costs. So ordered. . Green Mountain emphasizes that the Bylaws encourage the co-location of antennae on a single structure. See Bylaws § 111(G)(1)(c). . Green Mountain now says that the 0.66% figure provided by its attorney at the hearing was an error. . Appellees refer to both the "Wetlands Protection Act” and the "Rivers Protection Act” in their briefing. The Rivers Protection Act was a 1996 amendment to the Wetlands Protection Act and, accordingly, both are codified at section 40 of chapter 131 of the Massachusetts General Laws. For the purpose of this appeal, there is no practical distinction between the two. For ease of reference, we here refer to section 40 as simply the WPA. . The interests protected by the Milton Wetlands Bylaws include "[protection of] public or private water supply; aquifer and groundwater protection; flood, erosion and sedimentation control; storm damage and water pollution prevention; the protection of fisheries, shellfish and wildlife; recreation and aesthetics.” Milton Wetlands Bylaws, ch. 15, § I. . The context for the attorney's statement is not clear from the record. However, Green Mountain asserts that the statement was non-testimonial and appellees do not contest this assertion. . Several of the residents' complaints also referred to purported health concerns from negative environmental effects. However, these concerns are an impermissible ground on which to deny Green Mountain’s application. See 47 U.S.C. § 332(c)(7)(B)(iv); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494-95 (2d Cir.1999). . Other circuits have taken a similar approach in reviewing the decisions of regulatory boards that were required to consider the aesthetic impact of PWCFs. See, e.g., Sprint Spectrum, L.P. v. Platte Co., 578 F.3d 727, 733 (8th Cir.2009) ("[A]esthetic concerns can be a valid basis on which to deny [a provider’s] permit, so long as the aesthetic judgment is grounded in the specifics of the case and not based on generalized aesthetic concerns that are applicable to any tower, regardless of location.” (internal quotation marks omitted)); Cellular Tel., 166 F.3d at 495-96 (stating that while aesthetics could be a valid ground for denial of a permit under the TCA, a "few generalized expressions of concern with 'aesthetics' cannot serve as substantial evidence”). . Green Mountain conducted two crane tests at the Site approximately four months apart Although the record is not clear, it appears that during the latter test, the crane was raised to a height of 160 feet because one of the camouflaging options considered by Green Mountain would require a tower at this height. This option would have involved mounting antennae inside the monopole rather than on its exterior. However, in its application to the BOA, Green Mountain stated that the first test was at a height of 140 feet and it submitted photos of this test along with its application. The photos from the 140-foot test show that the crane could be seen above the tree line from multiple vantage points. . The Board’s decision also states that the Blue Hills Reservation is designated a Massachusetts historic district and is listed in the National Registry of Historic Districts. As an alternate ground for denial of Green Mountain’s application, it notes that the Bylaws forbid freestanding PWCFs within such districts. However, the proposed site is not within the Blue Hills Reservation, but adjacent to it. This conclusion was therefore in error. . Green Mountain linked its Massachusetts state law claim to its substantial evidence claim against the BOA. In its entirety, its argument to the district court on its state law claim states that ”[f]or all the reasons stated above in regards to the absence of substantial evidence supporting the Board's denial, the Board’s denial was not based upon evidence and was therefore unreasonable, arbitrary and capricious in violation of M.G.L. Chapter 40a, Section 17.” Green Mountain's argument in its briefing to us is a similarly conclusory assertion of the same point. Although the district court did not address the state law claim directly, we assume that in finding the Board's decision to be supported by substantial evidence the court also found that it was not arbitrary or capricious in violation of Massachusetts law. We do likewise. . Of course, the MCC was not entitled to insist that Green Mountain improve the condition of the Site. Although Green Mountain argued that its proposal may improve the Site, there is 'no indication that the MCC imposed this requirement. . Green Mountain provided slightly more evidence on the issue of alternatives to the BOA, in the form of coverage maps showing the effect of a tower at the alternate locations proposed by local residents. However, the record does not reflect that this evidence was ever presented to the MCC. . Of course, Green Mountain is not a carrier, but a developer leasing the land on which it hopes to build a PWCF. However, "[a] landowner tower developer is in no better position than a carrier and has an equally heavy burden.” Second Generation, 313 F.3d at 629. In fact, "[t]he landowner who wishes to build a tower on its site is a unique plaintiff. A landowner does not have an incentive to identify possible sites on land it does not own.” Id. at 629 n. 7. The same is true of a lessee. . Green Mountain asserts that, because the Board did not address the issue of alternatives in its written decision, it was not entitled to raise the issue in defending the effective prohibition claim before the district court, and that the district court erred in considering the issue. This argument fails because "[t]he TCA does not itself expressly authorize local zoning boards to consider whether individual decisions amount to an 'effective prohibition.’” Second Generation, 313 F.3d at 630. Thus, a local entity’s defense of an effective prohibition claim cannot be limited to the reasons given in its written decision. It makes sense to restrict a local entity’s defense of a substantial evidence claim to the rationale provided in its written decision, for such a claim challenges the reasoning of that decision. See Nat’l Tower, 297 F.3d at 20-21. In contrast, an effective prohibition claim asserts that the decision, even if supported by the evidence, has an impermissible effect, and thus the district court considers the question de novo, taking, if it chooses, additional evidence not in the administrative record. See Second Generation, 313 F.3d at 629. Green Mountain points to our National Tower decision as an example of a case in which a local zoning board was barred from arguing that feasible alternatives existed. However, in that case, the local zoning board did not deny the permit on the grounds that feasible alternatives were available. The record showed that a remand for consideration of this issue would be inappropriate given the board’s unwillingness to grant a permit under any circumstances. 297 F.3d at 23-24. . Green Mountain was subject to the permitting requirements of both the BOA and MCC, and either agency's decision could have independently been an effective prohibition. The existence of an effective prohibition may turn on the rationale for the denial of an application or the specific criteria relied upon by the administrative body. To say that there is a feasible alternative under one set of regulatory standards does not mean that there are also alternatives under differing standards. The effective prohibition analyses with respect to the BOA and MCC may be largely, or even entirely, overlapping, but if that was the case the court should have explained why that was so.

United States v. Schoenborn

FAIRCHILD, Senior Circuit Judge. The United States brought suit seeking restoration of wetlands covered by an easement in its favor on the property of Jerome Schoenborn (Jerome) and an injunction against further violations. The district court granted relief to the government. Schoenborn appeals. I. FACTS On January 26, 1965, Benjamin Lukes, a United States Fish and Wildlife Service (FWS) employee, visited the Schoenborn farm (then owned by Jerome’s father, Edward) to obtain an easement for waterfowl management rights. Lukes and Ed Schoenborn walked the property and discussed the proposed easement. Lukes wanted an easement covering the entire 360 acre farm and offered $1,700. Mr. Schoenborn refused. Ultimately they agreed on a less comprehensive easement, the extent of which is now in dispute, and a price of $1,000. Lukes returned the next day with an indenture for conveyance of an easement. The form provided for payment of $1,000 and described the entire farm, but excepted ditches and wetlands “shown on a map certified by the Regional Director at the time of acceptance.” A map showing deletions was not then attached. Ed and Martha Schoenborn signed the indenture, which allowed the United States six months for acceptance. The easement agreement read in pertinent part as follows: [T]he parties of the first part [the Schoenborns] hereby convey to the United States, commencing with the acceptance of the indenture ... an easement or right of use for the maintenance of the land described below as a waterfowl production area in perpetuity, including the right of access thereto____ [The Schoenborns], for themselves and for their heirs, successors and assigns, covenant and agree that they will cooperate in the maintenance of the aforesaid lands as a waterfowl production area by not draining or permitting the draining, ... of any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes on the above-described tract, by ditching or any other means; by not filling in with earth or any other material or leveling, any part [of the land] on which surface water or marsh vegetation is now existing or hereafter reoccurs due to natural causes, and by not burning any areas covered with marsh vegetation____ Excepted are certain drainage ditches which [the Schoenborns] may maintain and/or wetlands which are deleted from the provisions of this easement. The above exceptions are shown on a map certified by the Regional Director at the time of acceptance. The importance of the accuracy of the map to be later attached must have been clear. In a letter dated April 28, 1965 and mailed April 30, the FWS Regional Director informed the Schoenborns that the easement had been accepted and was being recorded. The letter also stated that a copy of the drainage facility map was enclosed, that they should check the map carefully, and inform FWS immediately of any errors. The letter stated that acceptance of the easement payment, which was to arrive after completion of recording, would be considered an endorsement of the accuracy of the map. Ed and Martha testified that they did not examine the map, but when the check arrived, they cashed it and returned a receipt for $1,000 on May 17, 1965. The dispute over the extent of the easement arises as follows: There are over 60 ponds or potholes of varying sizes (sometimes referred to as basins) scattered over the 360 acre Schoen-born farm. Much of the farm was wooded. Ed Schoenborn testified that he agreed with Lukes (orally) to an easement covering only five basins in wooded areas, three in the northeastern and two in the west central portions of the farm. The map attached to the indenture excepted only four basins and related ditches, all in cultivated portions of the farm. Thus a number of basins were not excepted and some of them lie in cultivated portions of the farm. Because the indenture included the entire farm, but described specific exceptions, a very much larger number of basins and ditches would have to have been excepted in order to limit the easement to the five basins Mr. Schoenborn said he agreed to. Lukes did not recall his conversations with Schoenborn, but testified to his standard practice, and that he had no reason to believe he deviated from it. Assuming he followed it, he had with him an aerial photograph of the farm on which he had outlined the basins in ink. He reviewed this with Schoenborn during their discussions, and in his presence marked the areas agreed to be deleted. Later he transferred the markings to a transparent overlay, or mylar, which became the drainage facility map certified by the Regional Director, and attached it to the indenture. There is in evidence an aerial photograph dated July 25, 1958 showing the Schoenborn farm and bearing some notations in Lukes’ handwriting. The numerous basins are outlined in the manner to which he testified, and the markings indicating basins and ditches to be deleted are the same as on the final mylar and Drainage Facility Map. Lukes testified to the system by which the compensation to be paid was determined, and that if the easement covered only the five basins to which Mr. Schoenborn said he agreed, the payment would only have been about $325. On April 22, 1972, Jerome and Ann Schoenborn bought the family farm from Ed and Martha. Ed informed Jerome that there was an FWS easement on some of the basins and indicated where the basins were. Jerome received the easement documents, but neither he nor his wife looked at them. Ed also told Jerome that the easement allowed Jerome to maintain all ditches on the farm. It is evidently the government’s position that the cleaning or maintaining of a ditch existing when the easement was created was a violation of the covenant not to drain lakes, ponds, etc. “by ditching or any other means.” Although defendant would prefer to be free to clean and maintain ditches, he has not directly argued for a narrower interpretation of the language. The FWS began investigating possible easement violations on the Schoenborn farm in the mid-1970s. FWS personnel took aerial and ground photographs of the alleged violations in the late 1970s and early 1980s and visited the farm on several occasions. Eldon McLaury testified that he met with Jerome in May and June of 1979. McLaury followed his investigation with a letter to Jerome detailing the restoration that was needed to return the covered wetlands to their previous condition. The Schoenborns did not make the restorations. Jerome raised four arguments on appeal. II. ARGUMENTS A. Estoppel As Jerome sees the facts, Lukes promised, or represented to the senior Schoenborns, that the easement would cover only five basins, but then created only four exceptions instead of the 55 or more which would have confined the easement to five basins. He also claims that Lukes also promised or represented that the Schoen-borns would remain free to maintain all existing ditches. Leaving aside any distinction between a promise and a misrepresentation of an existing fact, Jerome would treat the unfulfilled promises or representations, if made, as a basis for estoppel against enforcement by the government of the easement in its final form. Judge Devitt did not make findings resolving the conflict as to the conversations between Ed Schoenborn and Lukes. Lukes could not recall the details and described his customary practice culminating in the final form of the document. Although Ed Schoenborn, with some corroboration from his wife and another son, seemed definite in his testimony, Judge Devitt seemed unwilling to credit him fully, for he remarked that “[a]t the time of trial, memories of the discussion had faded.” He also found that “fraudulent conduct ... has not been established.” Judge Devitt found that the senior Schoenborns did not reasonably rely on Lukes. “The easement and drainage facility map had been available for their examination before they were bound by it. The easement referred to the map, and the map was attached to the easement when Edward and Martha accepted payment from the government and when they transferred their encumbered property to Jerome.” They did not look at these documents. “Their neglect was unjustifiable.” The United States Supreme Court has left open the question whether there could be any circumstances under which estoppel may run against the government, although it is well settled that the government may not be estopped on the same terms as any other litigant. Heckler v. Community Health Services, 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). “But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present.” Id. at p. 61, 104 S.Ct. at p. 2224. One of those elements is reasonable reliance. Id. at p. 59, 104 S.Ct. at p. 2223. The Eighth Circuit has also left undecided the question of applying estoppel against the federal government. See McDermott v. United States, 760 F.2d 879, 882 (8th Cir.1985); Chien-Shih Wang v. Attorney General of the United States, 823 F.2d 1273, 1276 (8th Cir.1987). This court has recognized that “even if equitable estoppel is applicable against the government only a showing of ‘affirmative misconduct’ will suffice.” McDermott, 760 F.2d at 882. “Estoppel requires a representation, to a party without knowledge of the facts and without the means to ascertain them, upon which the party asserting the estop-pel justifiably relies in good faith to his detriment.” Ridens v. Voluntary Separation Program, 610 F.Supp. 770, 777 (D.C. Minn.1985) (emphasis added). The district court found that Ed Schoenborn had the means to acquire knowledge that the easement he thought he had given was not portrayed on the map he received in April of 1965. He must have known in January the importance of an accurate map, and the admonition in April to examine the map was clear. Reliance on Lukes’ representations, if made as claimed, was not justified. Further, the district court determined that “fraudulent conduct ... has not been established.” At most, Lukes may have been mistaken or negligent in drawing the map. These findings of the district court are supported by the record and are not clearly erroneous. B. Validity of the Easement 1. Jerome makes an argument based on the fact that the written instrument signed by the parties January 27, 1965 was not complete. It provided for exceptions to be shown on a map to be attached at a later date. Lukes’ testimony as to his usual practice suggests that markings on an aerial photograph were then in existence, had been agreed upon, and would be reflected in the map to be later certified if the government accepted the easement. But any possible merit to the argument that the indenture is invalid because at the date it was signed it omitted this significant material vanished in May, 1965 when the certified map was attached, the Schoenborns were asked to check the map and point out errors, and they accepted and cashed the tendered check. The document was complete by that time. 2. Two other arguments, claiming lack of informed consent by the senior Schoenborns, and mutual or unilateral mistake, rest upon the proposition that Ed’s testimony as to his oral agreement with Lukes was accurate. There was no finding that it was, and Judge Devitt found that memories of the event had faded. There was a conflict between Ed’s testimony that he agreed to an easement covering five basins, and Lukes’ testimony (admittedly based on customary practice) that the map showed the only exceptions. The conflict has not been resolved except to the extent that Judge Devitt found that fraudulent conduct has not been established. We conclude, however, that the parol evidence rule forecloses the claim that the parties orally agreed in 1965 to something different from the completed document on record. C. Violations of the Easement Judge Devitt found violations with respect to six ditches and four basins, and ordered Jerome to restore them, expressing the hope that the parties could proceed toward that end in a mutually agreeable manner. He also enjoined further draining and filling in violation of the easement. In general, the government’s evidence consisted of aerial photographs at different dates, testimony interpreting them, and testimony of visual observations. Jerome argues that the findings of violation are clearly erroneous. We will discuss the violations in several groups. 1. Ditches 1, 2, 5, 6 and 8 Judge Devitt found that these ditches “have been leveled and some have debris in them.” As we read the easement the filling or leveling of a drainage ditch is not a violation unless this activity increases the capacity of the ditch to drain “surface water including lakes ...” etc. Jerome testified that he had cut down the steep sides of some of the ditches, “veed” them, in order to get farm machinery across them more easily. Where that is all that occurred, and the operation did not increase the drainage capacity of a ditch which was not already a violation of the easement, we agree with him that no violation has been shown. Ditch 6 runs from one small basin to another in the central part of the farm. It existed in 1966. We have found no evidence in the record that cleaning or other work has been done on it. Accordingly, we modify the judgment so as not to require restoration of Ditch 6. The other ditches in this group will be dealt with later. 2. Basins A & B and Ditches 1 & 5 Basins A and B are in the east central portion of the farm. Ditch 1 runs from B to A and Ditch 5 from A into another Basin. Water flows from B to A. Judge Devitt found that excavations and alterations of Ditches 1 and 5 have affected Basins A and B. Exhibit E (1966) showed that Basins A and B contained water. In May, 1976 the woods surrounding the basins had been cleared. In May, 1978 Basin A contained a large pile of debris and had a poorly-defined ditch (5) running from it. Basin B was filled with water at the time and had no ditch flowing from it. By November, 1978 both basins were poorly defined and “worked up.” Basin A had soil in it. In May, 1979 debris around Basin A included acquatic vegetation. In June of that year, McLaury requested restoration of Basin B, particularly that soil be removed to the basin’s original depth. By May, 1980, McLaury no longer considered Basins A and B to be wetlands. In 1981, 18 inches of fill were found in A and both A and B were in standing crop in August of that year, although water was standing in other nearby wetland areas. The 1966 photo did not show Ditch 1, but by November, 1978 the ditch was constructed. In May, 1979 exposed clay indicated that soil had been removed from the ditch. Jerome admitted that he “veed out” the ditch to allow farm machinery to pass. In May, 1978 Ditch 5, leading from Basin A, was poorly defined. A November, 1978 photo showed excavation in the ditch, and a May, 1979 photo showed exposed clay. Jerome admitted that he removed trees in the area and “sloped out” the ditch. The finding of violation is not clearly erroneous and supports the order that defendant restore these ditches and basins. There was also evidence that there had been some filling of the basins, although there was a dispute over the extent. Judge Devitt made no specific finding on this point. If in the process of restoration, the parties are unable to agree on the amount and types of material to be removed from Basins A and B, it will be necessary for the court to make additional findings, hearing additional evidence, if necessary. 3. Basin C and Ditch 2 Basin C appears to be a swale crossing the southeast corner of the main portion of the farm. Ditch 2 lies within and along it, and appears to drain northeasterly onto adjoining land. Judge Devitt found that Ditch 2 had been leveled and also evidenced exposed clay and wheel tracks from leveling activities. Basin C did not clearly show a ditch within it in the 1966 photograph. In May, 1976, a photo showed the woods had been cleared, but the basin remained intact. By November, 1979, Ditch 2 had been excavated and previously-deposited material had been smoothed out within the basin. In May, 1980, brush and vegetation had been removed from the basin. A year later Ditch 2 had been further excavated and by August was cut starkly in Basin C. Jerome admitted he removed trees from Basin C (not in itself a violation), but claimed Ditch 2 was a natural waterway and he had only “veed” it out. The finding is not clearly erroneous. The type of work found to have been done in Ditch 2, running as it does through a swale, must necessarily have increased drainage of the swale, and thus have violated the easement. 4. Basin D and Ditch 3 Basin D is in the central portion of 80 acres which adjoin the main portion of the farm at the southwest. Ditch 3 runs east from Basin D. Judge Devitt found that the government produced evidence that Ditch 3 had been constructed. There was evidence that Basin D was filled with water in May, 1979, and a ditch was constructed heading east from D through woods to a downhill gradient. In May, 1980, Basin D was cultivated and not well defined. By August, 1981, Basin D could hardly be seen under standing crop. The finding is not clearly erroneous. Although restoration, presumably filling, of Ditch 3, is not referred to in the judgment, restoration of Basin D is ordered, and necessarily includes prevention of drainage through Ditch 3. 5. Ditch 7 Ditch 7 is the westerly portion of the 80 acres above referred to. A township road is the north boundary of the 80 acres at that point, and Ditch 7 runs south from the culvert. It has not been shown that Ditch 7 drains any wetland except a pond or slough on neighboring property, which drains through the culvert. A portion of that pond, at another location, lies on Schoenborn land. Judge Devitt found that Ditch 7 “has been cleaned out exposing the clay.” A photograph clearly supports this proposition. Jerome, however, makes the point that the culvert limits the drainage from the pond north of the road, and therefore any cleaning or deepening of Ditch 7 could not increase the drainage from the pond. The only answer by the government was the suggestion by a witness that the town had reconstructed the culvert and Ditch 7 had been worked on at the same time. Under these circumstances, including the involvement of the town, we conclude that the finding does not support the order to restore Ditch 7, and we modify the order accordingly. 6. Ditch 8 Ditch 8 runs southerly, beginning a short distance from the southerly end of Ditch 7. Its upper portion lies within a basin. Judge Devitt found that it had been leveled (presumably cleaned out). On the 1966 photograph (Exhibit E), it appeared as a poorly defined and vegetated ditch or natural waterway. In 1976, it was well-defined and cleaned out and had soil piled at each end. In August, 1978, it had two years’ growth of vegetation in it. Jerome admitted sloping it out. Like Ditch 2, Ditch 7 drains the basin within which it runs, and cleaning it out would necessarily increase that drainage. We conclude that the finding was not clearly erroneous and supports an order for restoration. D. Jury Trial When Jerome filed his answer and counterclaim, he also entitled it “Jury Demand.” One week before trial, the government moved for an order striking the jury demand, pointing out (1) that the government’s action was in equity where there is no right to a jury trial, (2) that some of the counterclaims were also in equity, (3) that all the counterclaims were against the United States, (4) that there is no constitutional right to trial by jury of an action against the United States, and (5) that no statute grants a right to trial by jury on any of these claims. Judge Devitt granted the motion September 22, 1986, the day before trial. He acknowledged that the motion was untimely, but agreed with the propositions stated by the government. He noted that the only jurisdictional basis alleged in the counterclaim was 28 U.S.C. § 2409a, Real property quiet title actions. Subs, (f) provides that an action under that section shall be tried by the court without jury. Jerome argues that Judge Devitt abused his discretion in striking his jury demand upon the untimely motion of the government. He does not take issue with the proposition that he had no constitutional nor statutory right to a jury trial, but relies only on the late filing of the government’s motion. He points out that on March 15, 1985 the magistrate had signed a pretrial schedule providing that “All nondispositive motions, specifically those which relate to discovery and the discovery period shall be filed and heard prior to December 1,1985.” He argues that this applied to the government’s motion to strike the jury demand and that the government failed to obtain an enlargement of time under Rule 6(b), Fed. R.Civ.P. for cause and excusable neglect. Rule 39(a) provides that when a jury demand has been filed there shall be a jury trial unless “the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.” Jerome virtually concedes that Judge Devitt would have had discretion to strike the jury demand on his own motion. He argues, however, that the interest of the court in enforcing its pretrial orders made it an abuse of discretion to consider an untimely motion. Assuming the pretrial schedule applied to a motion to strike a jury demand, it was clear that Jerome had no right to a jury trial, and we find no abuse of discretion in considering the question of striking the demand. The judgment appealed from is MODIFIED so as not to require restoration of Ditches 6 and 7, and in all other respects is AFFIRMED. . The authority to provide for acquisition of wetlands easements for waterfowl production areas is derived from 16 U.S.C. § 718d(c). See United States v. Albrecht, 496 F.2d 906, 910 (8th Cir.1974). . The Honorable Edward J. Devitt, United States District Judge for the District of Minnesota. . Mylar is a clear plastic material. The mylar overlay contained an outline of the Schoenborn property which matched the aerial photograph. The overlay was put over the photograph and the wetlands and ditches to be deleted were then traced onto the mylar. The easement deletions were drawn in with a permanent marker. . On cross-examination Mr. Lukes indicated that in 1965 the farm was worth $60 per acre. The FWS schedule permitted him to offer $1,700 for an easement covering the entire farm and $1,000 for the easement described in the indenture and map. No evidence was offered to demonstrate that the $1,000 paid by the government was disproportionate to the reduction in value of the farm resulting from the easement. . The wetlands targeted for restoration in the McLaury letter do not coincide exactly with those listed in this case and the numbering of the basins and ditches in the letter is not the same as on Government Exhibit 4. . In October, 1981 Jerome was tried in a criminal action and acquitted of knowingly injuring the property of the United States. Although the judge found that the easement was valid and enforceable, and that Jerome had caused drainage and thereby injured property of the National Wildlife Refuge System, he decided that the government failed to prove that Jerome had “knowingly" drained the prohibited areas. Because of the acquittal, Judge Devitt declined to consider Jerome collaterally estopped by the findings against him on validity and damage. . See Azar v. United States Postal Service, 777 F.2d 1265, 1269-70 (7th Cir.1985) with respect to standard of review of a finding on this issue. . There is in evidence a handwritten note, dated April 30, 1965. It purports to be signed by Edward and Martha Schoenborn and to acknowledge receipt and correctness of the easement and drainage facility map. There was testimony identifying markings which showed it was received in the FWS Office May 14, 1965. The Schoenborns testified that they neither wrote nor signed the letter, and contend it was a forgery. Judge Devitt noted that neither party produced a handwriting expert and that resolution of the dispute would not affect the outcome. He declined to offer an opinion on the authenticity of the signatures. We do not rely on this letter. . Ditches are numbered 1 through 9 and Basins A through D on Exhibit E, an aerial photograph dated July 30, 1966, with transparent overlays. . Jerome’s counterclaim included causes of action for rescission, reformation, fraud, unconstitutional taking, estoppel, quiet title (28 U.S.C. § 2409a), negligence, and malicious prosecution. The claims of fraud and malicious prosecution had been earlier dismissed on account of sovereign immunity. On September 22, 1986, Judge Devitt also dismissed the claims of reformation and rescission on the same ground. He considered 28 U.S.C. §§ 1346 and 1491 (the Tucker Act) and §§ 1346 and 2671 et seq. (the Tort Claims Act), though unpleaded, with respect to the claims of unconstitutional taking and negligence. Section 2402 provides that any action against the United States under § 1346 (except for subsec. (a)(1), not applicable here) “shall be tried by the court without a jury."

Allain-Lebreton Co. v. Department of the Army

PER CURIAM: The Allain-Lebreton Company sought declaratory and injunctive relief, and damages against the Army Corps of Engineers, the Department of Interior, Fish and Wildlife Division, and the Board of Commissioners, South LaFourche Levee District. The company alleged that the decision not to locate a hurricane protection levee on certain of its lands constituted a taking of its property without just compensation. The district court dismissed the action finding no justiciable controversy. We affirm. Pursuant to the Flood Control Act of 1965, 79 Stat. 1073, Pub.L.No. 89-298, the Levee District and the Corps entered an agreement for the construction of a hurricane flood control levee whereby the Levee District would appropriate the required easements using its power of eminent domain. The Levee District would thereafter issue construction permits to the Corps, which would then build the project. Under this agreement the Corps had responsibility for determining the location of the levee. The Allain-Lebreton Company, which owns property in the general area of the proposed project, offered a gratuitous easement for the levee on the condition that it be built over a specified portion of its land. The Corps rejected this offer, because locating the levee on lands of the company as proposed would enclose a tract of wetlands, a large portion of which is owned by the company. Instead, the Corps and Levee District proposed a location for the levee on other lands which would leave these wetlands in their natural state. The company desires to have the wetlands enclosed so that its portion of the lands may be drained and developed. The company’s complaint alleges that but for the Corps’ veto power the Levee District would have accepted the company’s proposed levee location; that the Corps’ decision deprives them of the intended use of their property; that they must sacrifice their property to the Corps’ wetland and wildlife mitigation plan; and that their liberty to contract has been unduly circumscribed. Therefore, it asserts that the Corps has assumed rights of ownership without tendering any compensation in violation of the Fifth Amendment to the United States Constitution. The district court granted the Corps’ and Levee District’s motion to dismiss because as of the hearing on the motion no taking had occurred. The court held there was no justiciable controversy. The court failed to rule however on the plaintiff’s allegations, raised specifically for the first time in the opposition it filed to the motion to dismiss, that the Corps’ decisionmaking was subject to scrutiny under the Federal Tort Claims Act, 28 U.S.C. § 1346 and the Administrative Procedure Act, 5 U.S.C. § 702, et seq. We agree with the district court that no taking has yet occurred and that therefore no justiciable controversy exists on the record before us. We so hold, even though we are mindful that a physical appropriation need not be the sole factor' in establishing a taking. See Penn. Central Transp. Co. v. City of New York, 438 U.S. 104, 130-31, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978). This record demonstrates neither an intent to take, Foster v. United States, 607 F.2d 943, 950 (Ct.Cl.1979), nor a substantial deprivation of the use and benefits of ownership, Donohoe Constr. Co. v. Montgomery County Council, 567 F.2d 603, 608 (4th Cir. 1977), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1148; Benenson v. United States, 548 F.2d 939, 947 (Ct.Cl.1977). Rather, the Corps and Levee District have decided not to take the offered property of the company, nor to interfere with it in any way. This refusal to take has merely denied to the company certain business opportunities which it could have enjoyed if the levee had been located where the company desired. In essence, the company’s complaint is that the Corps refuses to conduct its affairs so as to help the company develop its land. However, when the government leaves property alone, it is not a taking, see DeTom Enterprises, Inc. v. United States, 552 F.2d 337, 339 (Ct.Cl.1977), nor does a threat to condemn amount to a taking. NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct.Cl.1978). The sovereign must only pay for what it takes, not an opportunity the owner loses. Johnson v. United States, 479 F.2d 1383, 1392-93 (Ct.Cl.1973). The company’s claim that the Corps’ action denied it the freedom to contract with the Levee District is frivolous. Interference with contract rights generally does not give rise to a claim of taking of property. Sun Oil Co. v. United States, 572 F.2d 786, 818 (Ct.Cl.1978). That principle is most absolute here. Whatever promises the company made based on its desire to have the levee built where it wanted it built were undertaken solely at its own risk. Finally, as mentioned supra, the state Levee District is the condemnor here. Where there is no physical invasion of or physical damage to a claimant’s property by the United States or its authorized agents, the government can be held responsible for a fifth amendment taking only when its own regulatory activity is so extensive or intrusive as to amount to a taking. DeTom Enterprises, Inc. v. United States, 552 F.2d at 339. Since no taking has occurred here, we need not determine whether the United States’ involvement would have been sufficient to render it liable had there been a taking. Compare DeTom Enterprises, Inc. v. United States, 552 F.2d at 339-40. (The United States is not liable when it merely convinces a county to adopt a particular regulatory scheme, assuming that those regulations amounted to a taking). As to a taking by the state, just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge. Vazza v. Campbell, 520 F.2d 848, 850 (1st Cir. 1975) citing Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 688, 67 L.Ed. 1167 (1923). The company has made no allegation that Louisiana’s procedures are lacking in this regard. Having found no taking has yet occurred, there is no claim stated here under the Federal Tort Claims Act, 28 U.S.C. § 1346. Such a claim ultimately rests on the fifth amendment prohibition against taking private property for public use without just compensation. United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384, 91 L.Ed. 1789 (1947). Assuming without deciding the claim under 5 U.S.C. § 702 was properly plead and pursued, it is likewise without merit. The decision concerning where a levee would be best located is for the agency constructing it, not a court. United States v. 1550.4 Acres of Land in McLean County, North Dakota, 369 F.Supp. 1078, 1080 (D.N.D.1974); Hilliard v. Pennsylvania Game Commission, 308 F.Supp. 756, 760 (W.D.Pa.1970), aff’d, 438 F.2d 92 (3d Cir. 1971). Some courts have held that the Administrative Procedure Act, 5 U.S.C. § 706 does not even apply to judicial review of condemnation proceedings, United States v. 45,149.58 Acres in Dane County, North Carolina, 455 F.Supp. 192, 200 (E.D.N.C.1978), while others have stated that the power of review is at most extremely limited. United States v. 113.81 Acres of Land in Stanislous County, California, 24 F.R.D. 368 (N.D.Cal.1959). We need not choose between these alternative approaches because even an extremely limited review satisfies us that the Corps’ decision to reject the company’s proposal should not be disturbed. The decision to leave the company’s wetlands intact obviously reflects the weight given to the environmental importance of wetlands. This weighing is, of course, required under the Clean Water Act, 33 U.S.C. § 1251, et seq. and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Zabel v. Tabb, 430 F.2d 199, 209-214 (5th Cir. 1970). Finding that no taking has yet occurred, and that the attack on the Corps’ decision-making is without merit, we affirm the district court’s dismissal of this action. AFFIRMED.

Colorado River Water Conservation District v. United States

BARRETT, Circuit Judge. Colorado River Water Conservation District (CRWCD) appeals from a summary judgment granted in favor of Northern Colorado Water Conservancy District (Northern District), Municipal Subdistrict, Northern Colorado Water Conservancy District '(Subdistrict) and the United States (hereinafter collectively referred to as Defendants) denying CRWCD’s prayer for an injunction. Upon review, we are guided by the rule that a motion for summary judgment should be granted only when the moving party has established the absence of any genuine issue as to a material fact. Dzentis v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 F.2d 168 (10th Cir. 1974); James v. Atchison, Topeka & Santa Fe, 464 F.2d 173 (10th Cir. 1972). CRWCD alleges that the Defendants violated the Administrative Procedure Act, 5 U.S.C. §§ 552, 553, 555 (APA); the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (NEPA); the Colorado River Storage and Project and Participating Projects Act; and a Decree in Civil Actions Nos. 2782, 5016 and 5017. In March 1972 CRWCD learned that Defendants were discussing a contract whereby the United States would carry water for Subdistrict from the Western Slope of Colorado to the Eastern Slope of Colorado through the surplus capacity of the completed Colorado — Big Thompson Project. CRWCD filed objections to these contract proceedings and requested that it be permitted to participate in the negotiations. James M. Ingles (Ingles), Regional Director of the Lower Missouri Regional Bureau of Reclamation, replied that the discussions were simply informal and that CRWCD would be allowed to participate in the negotiations. On April 28, 1972, CRWCD repeated its request to participate in the negotiations. Although it is disputed, Ingles contends that he orally told CRWCD that negotiations were in progress. On August 28, the first draft of the water contract was completed. On September 11, 1972, CRWCD again made its request to participate in the negotiations and outlined its concerns relative to the contemplated action. Shortly thereafter, the United States said that it was processing CRWCD’s requests. CRWCD reiterated its concerns and asked to orally discuss them. On November 10, 1972, CRWCD received a letter from the Bureau of Reclamation stating that negotiations were occurring; it outlined the main context of the proposed contract. CRWCD replied that it wished to appear in the negotiations. On March 29, 1973, CRWCD received a final draft of the proposed contract. In June, the Bureau of Reclamation prepared a “Negative Determination of Environmental Impact” wherein it limited considerations to the impact of the proposal on the Colorado — Big Thompson facilities and the operations thereof. The contract was executed on October 3, 1973, before CRWCD had commented on it. The contract provided that the surplus capacity of the Colorado — Big Thompson facilities could be used to transport water for the Subdistrict, if the Subdistrict could obtain the necessary water rights and that: The United States will not transport Subdistrict water through the Colorado — Big Thompson conveyance system under this contract until the Subdistrict has provided its environmental assessment report, as specified herein, and the Final Environmental Statement has been processed in accordance with established National Environmental Policy Act compliance procedures, and the use of the Project works is thereafter approved by the Secretary, it being the intent of the parties hereto that such approval is to be based on environmental considerations only. [R., Vol. I, Supp., Ex. A, p. 14.] CRWCD contends that the trial court erred in granting the summary judgment because (1) it ignored the purposes of NEPA and allowed the Defendants to engage in a “Major Federal Action” without procedural compliance with said Act, and (2) Ingles’ activities violated § 555 of the APA in that CRWCD, as an interested party, was entitled to participate in the negotiations leading up to the contract of October 3, 1973, or to receive prompt notice of the denial of its request to participate. I. CRWCD contends that the October 3, 1973, contract required an environmental impact statement in compliance with the National Environmental Policy Act of 1969 (42 U.S.C.A. § 4332) prior to its consideration and execution. The contract provides that the surplus capacity of the Colorado — Big Thompson facilities could be used to transport the water for the Subdistrict. It specifically provides that it is contingent upon prior approval of a NEPA statement by the Secretary of the Interior. Before execution of the contract the Bureau of Reclamation promulgated a “Negative Determination of Environmental Impact.” This “Determination” was limited to considerations of the use of the Colorado — Big Thompson facilities. It determined that a NEPA statement was not required before the contract was signed but that “Any project plan developed as a result of signing the contract would be required to comply fully with NEPA.” [R., Vol. I, Supp., p. 32.] The trial court found that the October 3, 1973, contract was merely an agreement to enter into an agreement in the future, [R., Yol. I, p. 42.] and that the time was not then ripe for the promulgation of an E.I.S. (Environmental Impact Statement). NEPA provides in part that: The Congress authorizes and directs that, to the fullest extent possible: . (2) all agencies of the Federal Government shall . (c) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — • ... 42 U.S. C.A. § 4332. If the contract constitutes a “major Federal action” then, of course, a NEPA statement should have been promulgated prior to its execution. If, on the other hand, the contract does not constitute a major Federal action because it is simply an agreement that precipitated the planning for the transcontinental diversion of the subject water, then a NEPA statement is not required. To be sure, there is no question that the transcontinental diversion of water is a major Federal action that will require an environmental impact statement. The contract itself recognizes and acknowledges this fact. The main issue, then, is whether the environmental impact statement was required before October 3, 1973, when the contract was signed. The trial court determined that on October 3, 1973, the time was not ripe for the environmental impact statement. The agency determined likewise in its “Negative Determination of Environmental Impact” assessment. We agree. The “rational basis” test, under which the court will reverse an agency’s decision, applies if the decision has no warrant in the record and if there is no reasonable basis in the law. This test is applicable in determining whether the time is ripe for a NEPA statement. Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974); Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App. D.C. 395, 481 F.2d 1079 (1973). Applying this test, we hold that the trial court’s grant of summary judgment must stand. The record evidences that Subdistrict has not obtained the water to be carried. On that predicate, there cannot be a definite determination of the environmental impact on the area the water is to be transferred from. Again, the contract expressly recognizes that a NEPA statement must be prepared and approved. The stage of the proceedings we consider here is very similar to that considered by the Department of Commerce in Upper Pecos Association v. Stans, 452 F.2d 1233 (10th Cir. 1972), vacated and remanded to determine mootness, 409 U.S. 1021, 93 S.Ct. 458, 34 L.Ed.2d 313 (1972). The project there contemplated was not definitely defined and: Certainly the project must be of sufficient definiteness before an evaluation of its environmental impact can be made and alternatives proposed. 452 F.2d, at 1237. Nor do we have a “reversible commitment” such as that considered in Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, supra, because, in the instant case, if an environmental statement is not approved the federal facilities are not to be committed. The procedure employed here leading to and including the contract execution does not involve major Federal actions under NEPA. In Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975), the Court stated that a NEPA statement must be prepared only when an agency makes a recommendation or report on a proposed major Federal action. The Court observed: NEPA provides that “such statement shall accompany the proposal through the existing agency review processes” (emphasis added). It simply says what must be done with the “statement” once it is prepared — it must accompany the “proposal.” The “statement” referred to is the one required to be included “in every recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment” and is apparently the final impact statement, for no other kind of statement is mentioned in the statute. Under this sentence of the statute, the time at which the agency must prepare the final “statement” is the time at which it makes a recommendation or report on a proposal for federal action (emphasis added). 422 U.S., at p. 320, 95 S.Ct. at p. 2356. See also: Kleppe v. Sierra Club, et al., (427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576, United States Supreme Court, June 28, 1976). Here, the proposal for the transcontinental diversion is yet “on-going” through the agency review processes. The agency cannot recommend the proposal until the NEPA statement has been approved. In a practical sense, it would be overly burdensome to require an agency to prepare a NEPA statement before the plans for the proposal are prepared. II. CRWCD contends that 5 U.S.C.A. § 555, the Administrative Procedure Act (APA), was violated by the Defendants in that CRWCD, as an interested party, was entitled either to participate in the negotiations leading to the contract execution on October 3, 1973, or to receive prompt notice of the denial of its request to participate. CRWCD asserts that the Bureau of Reclamation’s duties are inter alia : (b) So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. . (e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement on the grounds for denial. 5 U.S.C.A. § 555. CRWCD argues that the Bureau of Reclamation was required to allow it to participate in the negotiations after it had so requested some five distinct times. CRWCD does not acknowledge, however, that it received a draft of a proposed contract six months before it was signed, and that during that period it did not request to comment orally relative to the contract nor did it submit written comments on the proposal. We agree with this language from Easton Utilities Commission v. Atomic Energy Commission, 137 U.S.App.D.C. 359, 424 F.2d 847 (1970): . We do not believe that the affirmative grant of a right to appear is blindly absolute, without regard to time of appearance, the status of the proceedings, the administrative avenues established by other statutes and agency rules for participation, or, most importantly, as “the orderly conduct of public business permits.” Our consideration of the procedure pursued in the instant case leads us to conclude that the APA was not violated. CRWCD did not exercise its opportunity to comment on the contract, even though the Bureau of Reclamation afforded it such opportunity. True, CRWCD did submit its requests at different times than the authorization from the Bureau of Reclamation. However, it is settled that the administrative agency may determine the appropriate time. In any event, the proceedings were so preliminary at the times CRWCD contends that it should have been permitted to appear that its presence may have been more disruptive than beneficial. WE AFFIRM.

Mississippi Commission On Natural Resources v. Costle

FAY, Circuit Judge: The Mississippi Commission on Natural Resources (Commission) challenges the authority of the United States Environmental Protection Agency (EPA) to promulgate a water quality standard on dissolved oxygen for Mississippi. The Commission filed a complaint seeking a declaratory judgment that EPA’s rejection of the state standard and promulgation of a federal standard were arbitrary, capricious, and beyond EPA’s authority. The Commission sought a preliminary and permanent injunction against enforcement of EPA’s standard. The district court granted the preliminary injunction. After cross-motions for summary judgment, the court granted judgment to EPA and dissolved the preliminary injunction. The Commission appeals pursuant to 28 U.S.C. § 1291 (1976). We affirm the district court. I. Statutory Framework Prior to 1972, the Federal Water Pollution Control Act (FWPCA) relied primarily upon state-promulgated water quality standards as the means for reaching its goal of enhancing the quality of the nation’s waters. A water quality standard has two components. The first is the use for the water in an area. Possible uses are for industry, agriculture, propagation and protection of fish and wildlife, recreation, and public water supply. The second component is the water quality criteria necessary to meet the designated use. For most pollutants, criteria are expressed as specific numerical concentration limits. For example, a state might set the water quality standard for a certain creek by designating it as a fishing area and requiring that the chloride concentration be no greater than 250 milligrams per liter of water. In 1965, Congress considered whether the states or a federal administrator should establish water quality standards. Concerned that federal promulgation would discourage state plans for water quality and “would place in the hands of a single Federal official the power to establish zoning measures over — to control the use of — land within watershed areas” throughout the nation, Congress gave the states primary authority to set water quality standards. H. Rep. 215, 89th Cong., 1st Sess., reprinted in [1965] U.S. Code Cong. & Admin. News pp. 3313, 3320-23. The state standards and plans were submitted to the federal administrator, who determined whether they were consistent with the Act’s requirements. If the state did not adopt complying standards, the administrator promulgated water quality uses and criteria. The Act “focused on the tolerable effects rather than the preventable causes of water pollution.” EPA v. California Water Resources Control Board, 426 U.S. 200, 202, 96 S.Ct. 2022, 2023, 48 L.Ed.2d 578 (1976). Problems with translating violations of standards into limits on particular polluters, the lack of enforcement, and the “awkwardly shared federal and state responsibility” led to amendments in 1972. Id. at 202, 96 S.Ct. at 2023; S. Rep. 92-414, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Admin. News pp. 3668, 3669-77. The major change was the establishment of the National Pollutant Discharge Elimination System (NPDES), under which it is illegal to discharge pollutants without a permit complying with the Act. The amendments focus on limiting the sources of pollution through EPA issüed permits. A state can issue NPDES permits upon EPA approval of its program. The permits are the primary means for reaching the national goal of eliminating discharge of pollutants into water by 1985 and the interim goal of reaching a level of water quality, wherever attainable, “which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water ... by July 1, 1983.” 33 U.S.C. § 1251(a)(l)-(2) (1976). In the Senate version of the amendments, section 302 utilized water quality standards as a way to measure the permit program’s effectiveness. If the effluent limitations were not stringent enough to meet the interim water quality goal, a more restrictive standard could be set after public hearing. The House added section 303 to the Act to continue the use of state water quality standards. The Conference Committee adopted section 302 of the Senate bill after deleting all reference to state authority. The Committee also added a modified version of the House amendment. As the Act was passed, states promulgate water quality standards, which are submitted to EPA for approval. EPA can promulgate standards if the state does not set standards consistent with the Act or whenever EPA determines that another “standard is necessary to meet the requirements of [the Act].” State standards are reviewed every three years. 33 U.S.C. § 1313 (1976). NPDES permits must contain not only any effluent limitations set by EPA and the states, but also any more stringent limits necessary to reach the water quality standards. Id. § 1311(b). If EPA determines that limits on discharges from a source or group of sources are insufficient for the water quality set for that area, it can, after hearing, set effluent limitations designed to reach that standard. Id. § 1312. In addition, EPA must develop and publish “criteria for water quality accurately reflecting the latest scientific knowledge.” Id. § 1314. II. Facts The dispute in this case arises from EPA’s refusal to approve the Mississippi water quality standard for dissolved oxygen (DO) and EPA’s subsequent promulgation of a DO standard. Dissolved oxygen is necessary for the protection and propagation of fish and aquatic life, and is generally measured in milligrams per liter (mg/1). In 1946, the Mississippi Game and Fish Commission adopted a regulation requiring a minimum average DO concentration of 3.0 mg/1 and an instantaneous minimum of 2.5 mg/1. Under this standard, the DO concentration could drop as low as 2.5 so long as compensating periods at higher concentrations raised the daily average to 3.0 mg/1. In response to state and federal legislation, the Commission adopted standards on January 17,1967 requiring a minimum daily average DO of 4.0 mg/1. The 1972 amendments to the Act allowed preexisting water quality standards to remain in effect upon approval by EPA. 33 U.S.C. § 1313(a)(1)-(2) (1976). These standards were approved in October, 1972. On January 18, 1973, EPA advised the Commission that it was time for the triennial review of its standards. After public hearings, the Commission submitted to EPA a DO standard of not less than an average of 5.0 mg/1, but allowing a level of 4.0 mg/1 during periods with extremely low water levels. The low flow standard applies to days with the lowest water level that occurs for seven consecutive days in ten years (7 days Q 10). On May 15, 1973, EPA approved the Commission’s water quality standards, stating they were in “full compliance with the 1972 Amendments to the Federal Water Pollution Control Act.” As noted above, one of EPA’s duties under the amendments is to develop and publish “criteria for water quality accurately reflecting the latest scientific knowledge.” 33 U.S.C. § 1314(a)(1) (1976). These criteria were to be published one year after October 18, 1972 and from time to time thereafter. Id. EPA gave notice of the availability of Quality Criteria for Water, also called the Red Book, on October 26,1973. It thereafter became EPA’s policy to request a state to justify its standards whenever the state submitted for approval water quality criteria less stringent than those in the Red Book. In 1976, at the time for Mississippi’s triennial review, EPA conferred with the Commission about upgrading its DO standard. Although the likelihood of the 7 day Q 10 rate’s occurring for seven straight days is only once in ten years, that particular low flow rate actually occurs for significant periods virtually every year. In addition, the 4.0 mg/1 7 day Q 10 standard is an average, which therefore allows the DO level to fall below 4.0 on numerous occasions each year. Higher DO concentrations reduce crowding of fish and the resulting susceptibility to disease and toxicants. Adult fish generally are more tolerant of lower DO levels than juvenile forms. Lower levels also interfere with fish spawning. The Commission forwarded to EPA for comment a proposed standard which required 5.0 mg/1 with an instantaneous minimum of 4.0 mg/1, but allowed the DO to range between 5.0 and 4.0 for short periods. The Commission also proposed a higher standard of 5.0 mg/1 for shellfish harvesting areas. In March, 1977, the Commission held hearings on the proposal. EPA advised that the proposal appeared to meet the Act’s requirements. The Commission, however, abandoned the proposal and on April 22, 1977, submitted to EPA its existing 5.0 mg/1 — 4.0 mg/1 7 days Q 10 standard. On June 9, 1977, EPA notified the Commission that it questioned the adequacy of the DO criteria. Specifically, Mississippi’s DO standard was the only one in its region below 5.0 for 7 day Q 10 conditions, and it was below the 5.0 mg/1 criteria established in the Red Book. In accordance with its policy, EPA requested justification for the lower standard. The Commission sent its report on July 21. Pending review of the report, EPA disapproved the DO criteria. On August 24,1977, EPA notified the Commission that it found Mississippi’s justification unpersuasive. EPA gave the Commission until October 24,1977 to promulgate an appropriate standard. EPA recommended a daily average of 5.0 mg/1 and a minimum of 4.0 mg/1. The Commission reconsidered its standard in September, 1977, and decided the state’s standard was in the public interest. EPA found this action insufficient and on July 13,1978, proposed a DO standard of 5.0 mg/1 at all times. In September, 1978, two public hearings were held in Mississippi as part of the rulemaking process. In response to public comment, EPA revised its proposed rule and adopted the less stringent standard of 5.0 mg/I daily average with an instantaneous minimum of not less than 4.0 mg/1. This standard, which was promulgated April 24,1979, was very similar to the one initially proposed and then abandoned by the Commission when the 1976 triennial review began. The Commission then filed this action for an injunction and declaratory judgment. III. The Commission’s Position The Commission argues that EPA exceeded its powers both in its disapproval of the state DO criteria and in its promulgation of a federal standard. As to the disapproval, the Commission emphasizes that Congress intended for the states to have primary responsibility in setting water quality standards. The Commission reasons that EPA therefore cannot substitute its judgment for the state’s unless the state standard is arbitrary, capricious, or totally unreasonable. According to the Commission, since the same standard was approved in 1973, it cannot be disapproved now. Furthermore, EPA can only disapprove standards that fail to meet the requirements of the Act. The Commission argues that EPA is enforcing its policies as though they were the Act’s requirements. In addition, the Commission claims that EPA improperly failed to consider economic factors in evaluating the DO criteria and that EPA ignored and misinterpreted evidence presented at hearings. The Commission also attacks EPA’s promulgation of its own standard. Because EPA did not promulgate the standard within ninety days, it therefore, according to the Commission, lost the power to act. The Commission also claims that nothing in the record supports a 4.0 mg/1 instantaneous minimum. The standards in nearby states are irrelevant. The Commission asserts that Mississippi’s flat topography and subtropical summer climate result in naturally low DO concentrations. According to the Commission, Congress intended for the individual states to account for these regional variations in setting criteria and did not intend for these differences to be ignored for the sake of bureaucratic uniformity. IV. The District Court’s Order The district court acknowledged that states are given the first opportunity to establish water quality standards, but held that states were not given unfettered discretion. Although the court agreed that EPA had missed its deadline for promulgating the standard, it disagreed on the result that produced. The court held that section 706 of the Administrative Procedures Act (APA) required consideration of whether the state had been prejudiced by delay, and held that no prejudice had been shown. The court addressed the state’s substantive challenges to EPA’s decisions and held that the agency’s actions were justifiable and reasonable, not arbitrary or capricious. V. Scope of Review The Commission does not question the application of APA section 706 to this case. That section provides in part: The reviewing court shall— (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law . In making the foregoing determinations, the court shall review the whole record or those parts cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706 (1976). Under section 706, generally a court must consider three questions: first, whether the administrator acted in the scope of his authority; second, whether ; the choice made was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; and third, whether the agency followed procedural requirements. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-17, 91 S.Ct. 814, 822-24, 28 L.Ed.2d 136 (1971); Texas v. EPA, 499 F.2d 289, 296 (5th Cir. 1974), cert. denied, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976). Those questions are “divisible into three categories — statutory, procedural and substantive.” Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1024 (D.C. Cir. 1978). For EPA to promulgate a water quality standard, it must determine that the state’s standard “is not consistent with the applicable requirements of [the Act]” or that “a revised or new standard is necessary to meet the requirements of [the Act].” 33 U.S.C. § 1313(c)(3), (c)(4)(B) (1976). Review is therefore centered around two issues: first, whether EPA’s disapproval of Mississippi’s DO standard was proper; and second, whether EPA properly promulgated the substitute standard. See Texas v. EPA, 499 F.2d at 294. The relevant statutory, substantive, and procedural aspects of each issue will be considered. VI. Disapproval of Mississippi’s Standard A. Scope of Authority The Commission contends that EPA exceeded its statutory authority by tipping the balance of federal and state power created by Congress in the FWPCA. The Commission argues that EPA may substitute its judgment only if a state fails to act or acts irresponsibly. Furthermore, the Commission asserts that EPA misconstrues its authority as allowing disapprovals of standards that do not meet the requirements of EPA policy instead of those not meeting the requirements of the Act. Congress did place primary authority for establishing water quality standards with the states. Furthermore, [i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. 33 U.S.C. § 1251(b) (1976). As noted above, the legislative history reflects congressional concern that the Act not place in the hands of a federal administrator absolute power over zoning watershed areas. The varied topographies and climates in the country call for varied water quality solutions. Despite this primary allocation of power, the states are not given unreviewable discretion to set water quality standards. All water quality standards must be submitted to the federal Administrator. 33 U.S.C. § 1313(c)(2) (1976). The state must review its standards at least once every three years and make the results of the review available to the Administrator. Id. § 1313(c)(1). EPA is given the final voice on the standard’s adequacy: If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this chapter, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. Id. § 1313(c)(3). In addition, EPA can override state water quality standards by changing the effluent limits in NPSES permits whenever a source interferes with water quality. Id. § 1312. EPA’s role also is more dominant when water quality criteria are in question. Although the designation of uses and the setting of criteria are interrelating chores, the specification of a waterway as one for fishing, swimming, or public water supply is closely tied to the zoning power Congress wanted left with the states. The criteria set for a specific use are more amenable to uniformity. Congress recognized this distinction by placing with EPA the duty to develop and publish water quality criteria reflecting the latest scientific knowledge shortly after the amendment’s passage and periodically thereafter. Id. § 1314(a)(1). EPA correctly points out that by leaving intact the Mississippi use designations it has acted in the manner least intrusive of state prerogatives. Nothing indicates a congressional intent to restrict EPA’S review of state standards to the issue of whether the state acted arbitrarily or capriciously. The FWPCA requires EPA to determine whether the standard is “consistent with” the Act’s requirements. The Commission argues that the Administrator has improperly construed his power as authorizing disapproval of state standards that do not meet EPA policy as embodied in the Red Book. The statute enumerates the following requirements for water quality standards: Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. 33 U.S.C. § 1313(c)(2) (1976). One purpose of the Act is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. Id. § 1251(a)(2). The EPA administrator did not improperly construe his authority by interpreting the FWPCA as allowing him to translate these broad statutory guidelines and goals into specifics that could be used to evaluate a state’s standard. One “requirement of the Act” is that EPA formulate these policies for water quality criteria. Id. § 1314(a)(1). It was not unreasonable for the EPA Administrator to interpret the Act as allowing him to require states to justify standards not in conformance with the criteria policy. The Commission’s reliance on Ford Motor Co. v. EPA, 567 F.2d 661 (6th Cir. 1977) and Washington v. EPA, 573 F.2d 583 (9th Cir. 1978) is misplaced. Those cases involved EPA’s veto of state NPDES permits in the absence of published guideline regulations. Unlike the water quality criteria section in question here, the statute requires EPA’s effluent limitations to be embodied in regulations. 33 U.S.C. § 1314(b) (1976). EPA veto of a permit is quite different from disapproval of the water quality standard in this case. EPA prepares and publishes the proposed revised water quality standard. Id. § 1313(c)(4). Following the informal rulemaking procedures of the APA, EPA allows input on the proposal through public hearings and comment before promulgating the standard. 5 U.S.C. § 553 (1976). The public is assured the opportunity to react to the EPA criteria policy before it is adopted as part of a water quality standard. With NPDES permits, this input is supposed to be received when the effluent limitations become regulations; a public hearing after a veto comes only if the state requests it. 33 U.S.C. § 1342(d)(4) (1976). We conclude that EPA did not exceed its statutory authority in disapproving the state water quality standard. B. Substantive and Procedural Aspects of the Disapproval We turn to a consideration of whether the disapproval was arbitrary or capricious. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823-24 (citations omitted). With a position that contains both procedural and substantive elements, the Commission argues that EPA’s approval of the 5.0 — 4.0 7 day Q 10 standard in 1973 estops EPA’s disapproval of it now and renders EPA’s action unreasonable. This position overlooks the congressional goal of attaining fishable and swimmable waters by 1983. Triennial review of state standards is a means of evolving and upgrading water quality standards. In addition, the Act authorizes EPA to set standards whenever the Administrator determines that a revised standard is necessary to meet the FWPCA’s requirements. 33 U.S.C. § 1313(c)(4)(B) (1976). If EPA were bound by its prior approvals, this power would be meaningless. We also note that the prior approval in this case was before the statutory deadline for developing criteria under § 1314 and before the Red Book was published. The Commission asserts that EPA failed to consider all relevant factors by excluding economic considerations in setting the DO criteria. EPA determined that while economic factors are to be considered in designating uses, those factors are irrelevant to the scientific and technical factors to be considered in setting criteria to meet those uses. 44 Fed.Reg. 25223, -24, -26 (April 30, 1979). When criteria cannot be attained because of economic factors, EPA states that the particular water can be designated for a less restrictive use, a process called “downgrading.” Id. at 25224. The Commission argues that the statute’s requirement that “use and value” be considered in setting standards makes economic factors relevant to both the designation of uses and the setting of criteria. 33 U.S.C. § 1313(c)(2) (1976). Furthermore, it claims that EPA’s policies against downgrading make its suggested solution illusory. We note at the outset that EPA states it did examine the economic impact of its criteria and “concluded that a significant impact [was] not likely to occur.” 44 Fed.Reg. at 25225-26. Nevertheless, we are convinced that EPA’s construction is correct. See E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, at 134-35, 97 S.Ct. 965, at 978-79, 51 L.Ed.2d 204. Congress itself separated use and criteria and stated that “the water quality criteria for such waters [shall be] based on such uses.” 33 U.S.C. § 1313(c)(2) (1976). The statute requires EPA to develop criteria “reflecting the latest scientific knowledge.” Id. § 1314(a)(1) (emphasis added). The interpretation that criteria were based exclusively on scientific data predates the 1972 amendments. Water Quality Criteria vii (1968). Furthermore, when Congress wanted economics and cost to be considered, it explicitly required it. See 33 U.S.C. §§ 1311(b)(2)(A), 1312(b), 1314(b) (1976). EPA policy does permit downgrading when “substantial and widespread adverse economic and social impact” would otherwise result. 40 C.F.R. § 130.17(c)(3) (1978) (now codified at id. § 35.1550(c)(3) (1979)). See also 43 Fed.Reg. 29588, 29590 (July 10, 1978). General downgrading is not possible in this case, however, because Mississippi has the same standard for all uses. Furthermore, the statute requires that waters be at least fishable and swimmable “wherever attainable.” 33 U.S.C. § 1251(a)(2). Mississippi’s lowest use is fishable water. EPA does allow downgrading for particular stream segments, see 43 Fed.Reg. 43741 (Sept. 27, 1978), and suggested this course to the Commission in its disapproval letter. Record, Appendix C, at 222. The Commission also argues that EPA’s disapproval was a clear error of judgment. EPA has determined that most fishable waters require a DO concentration of 5.0 mg/1. Quality Criteria for Water 224 (1976). It determined that the fish species in Mississippi, as throughout the South, would be adversely affected by a 4.0 mg/1 average during the stressful low flow periods. Record, Appendix C, at 221-23. EPA cited laboratory and field studies supporting its position. Its disapproval of the state standard was not arbitrary or capricious. VII. Promulgation of the Substitute Standard A. The New DO Criteria Because EPA’s disapproval of the DO standard was proper, it was within the scope of the Administrator’s authority to promulgate a substitute standard. The question is whether the EPA was arbitrary ór capricious in promulgating the DO criteria. Mississippi wants its waters to support a diversified fish population. See note 2 supra. By weight, about 85% of the Mississippi fish can be classified as course or rough fish, such as catfish, carp, drum, buffalo, and shad. Nevertheless, the waters also include higher oxygen demanding gamefish, such as bass, (large mouth, spotted, white, and striped), white perch, bream, crappie, flounder, redfish, speckled trout, white trout, sheephead, croaker, blue gills, and red ear sunfish. Data cited by EPA in both its disapproval and as support for its standard “point very strongly to 5 [mg/1] as the lower limit of dissolved oxygen, if the complex is to maintain a desirable fish faunae under natural river conditions.” Record, vol. V, at Exh. 73. Testimony and data of experts based on laboratory and field studies support EPA’s position that a 5.0 mg/1 concentration is needed to support a balanced and diverse fish population and that 4.0 mg/1 is the lowest safe level. In addition, fish are subject to more stress as water temperatures rise, a condition usually occurring during low flow periods. Record, Appendix A, at 18-19. The EPA’s DO criteria was not a clear error in judgment. Furthermore, EPA did not arbitrarily promulgate its 5.0 mg/1 criteria without considering the Mississippi situation. After reviewing the statements from the public hearings, EPA promulgated a lower standard that allows an instantaneous minimum of 4.0 mg/1. EPA did not act in an arbitrary or capricious manner. B. Procedural Defects The Commission asserts that EPA’s failure to promulgate its substitute criteria within ninety days after publishing the proposal precludes it from acting. See 33 U.S.C. § 1313(c)(4) (1976). EPA did miss the deadline. The question is what are the consequences of its tardiness. The FWPCA does not impose any sanctions for missing the deadline. The APA requires a consideration of whether prejudice has resulted. 5 U.S.C. § 706; see E. I. du Pont de Nemours & Co. v. Train, 430 U.S. at 131-32 n. 22, 97 S.Ct. at 976-77 (failure to meet statutory deadlines relating to NPDES permits.) As the district court found, no prejudice is shown on this record. The Commission’s arguments that the EPA failed to give proper notice of the 4.0 minimum and that the EPA order is unclear are without merit. EPA promulgated a less stringent standard than that originally proposed, one which was subject to public hearing and comment as part of the review process in 1977. Despite the Commission’s failure to raise the clarity issue in the district court, we hold that the order is not too unclear for judicial review. VIII. Conclusion The district court order dissolving the injunction and granting summary judgment to the government is AFFIRMED. . Although we will refer to the “Commission” throughout this opinion, most oi the acts detailed here were done by a predecessor of the current Commission, the Mississippi Air and Water Pollution Control Commission. That commission ceased to exist June 30, 1979 because of an agency reorganization. . The Mississippi standard reads as follows: Dissolved Oxygen: For diversified warm-water biota, including game fish, daily dissolved oxygen concentration shall be maintained at a minimum of not less than 4.0 mg/1 during the low 7-day, one-in-ten-years flow. However, at all greater flows dissolved oxygen shall be maintained at not less than 5.0 mg/1, assuming there are normal seasonal and daily variations above this level; except that under extreme conditions, with the same stipulations as to seasonal and daily variations, the dissolved oxygen level may range between 5.0 mg/1 and 4.0 mg/1 for short periods of time, provided that the water quality is maintained in favorable conditions in all other respects. That the 4.0 concentration is an average is clear from documents supplied to EPA by the Commission. Record, Appendix C, at 208. . Other courts have noted that the FWPCA imposed unrealistic statutory requirements and timetabies on the EPA, which is usually in good faith “attempting to discharge the ambitious and often ambiguous duties imposed upon it . .” Republic Steel Corp. v. Train, 557 F.2d 91, 94 (6th Cir. 1977). See, e. g., E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 122, 97 S.Ct. 965, 972, 51 L.Ed.2d 204 (1977); American Petroleum Institute v. EPA, 540 F.2d 1023, 1027 (10th Cir. 1976). EPA’s delay cannot be condoned, but in light of its duties it is understandable.

National Independent Meat Packers Ass'n v. United States Environmental Protection Agency

PER CURIAM. The petitioners seek review of regulations promulgated by the Environmental Protection Agency pursuant to the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., establishing effluent limitations applicable to slaughterhouses and meat-packing plants. Petitioners are the National Independent Meat Packers Association (NIMPA), an organization representing a number of relatively large slaughterhouses and meat processors throughout the nation, and some of its individual members. The petitioners advance a number of challenges to the limitations based on alleged, inadequacies and inaccuracies in the technical data upon which the EPA grounded its final determination. Petitioners also contend that the Agency’s final determination was not supported by the data. The regulations established limitations on three characteristics related to the pollutant qualities in effluent: (1) BOD5 (biochemical oxygen demand, or the oxygen-depleting capacity of effluent over a five day period); (2) TSS (total suspended solids, a measure of floating or suspended particles in effluent); and (3) ammonia. Limitations on these factors were established for four categories of point sources in two stages, to become effective in 1977 and 1983, respectively. The 1977 limitations were based on EPA’s determination of the “best practicable control technology currently available.” The 1983 limitations were based on EPA’s determination of the “best available technology economically achievable.” The validity of these regulations was fully considered by the Seventh Circuit in American Meat Institute v. EPA, 526 F.2d 442 (7th Cir. 1975). After extensive consideration, the Seventh Circuit upheld all of the limitations under review with the exception of the 1983 ammonia limitations and the 1977 and 1983 TSS limitations for complex slaughterhouses, which were remanded to the Agency for further consideration. The EPA is presently reconsidering those limitations, and the Seventh Circuit has retained jurisdiction over the remand proceedings. Uniform regulation of water pollution on a nationwide basis was a major purpose of the Federal Water Pollution Control Act Amendments. See E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). We are confident that inter-circuit conflicts as to the validity of regulations promulgated pursuant to the Act would seriously impede the EPA’s ability to effectively implement the program envisioned by Congress in passing the Act. The interest in avoiding inter-circuit conflicts is especially strong when the potentially conflicting decisions would present different interpretations of federal law intended to be uniformly applied on a nationwide scale. Because uniform regulation of water pollution was the primary purpose of this legislation, any requirements imposed by this court at variance with those already imposed by the Seventh Circuit in American Meat Institute would be highly undesirable. The same strong policy interests which prompted passage of the Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), militate in this case against subjecting the Agency to different requirements and creating disparate enforcement of the Act according to geographical area. These factors lend strong support to the conclusion that this court should defer to the judgment of the Seventh Circuit as to the validity of the limitations. Cf. American Iron and Steel Institute v. EPA, 560 F.2d 589 (3d Cir., filed Aug. 10, 1977) (AISI II). A review of the briefs and oral arguments in this action reveals that essentially all of the technical contentions raised by the petitioners in this court were presented to the Seventh Circuit in the American Meat Institute case. Moreover, the EPA has indicated that NIMPA could participate by intervention in the administrative proceedings being conducted with regard to revising the limitations remanded in American Meat Institute. This case involves review of the administrative determination of technical factors within the Agency’s area of expertise. Judicial review is limited to a determination of whether the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); National Renderers Association v. EPA, 541 F.2d 1281, 1285 (8th Cir. 1976). Thus, we are not confronted with any difficult legal issues which should be allowed to “mature through full consideration by the courts of appeals.” E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 135 n. 26, 97 S.Ct. at 978. The Seventh Circuit has fully considered the regulations and that court retains jurisdiction over the matters remanded in American Meat Institute. We join in that decision and find that the regulations are not arbitrary, capricious, and that their promulgation did not constitute an abuse of discretion. Our limited review of petitioners’ challenge does not point up any glaring deficiencies in the regulations or in the analysis of the Seventh Circuit. In view of the comity considerations discussed and in the interests of effective implementation of the comprehensive program for water pollution control envisioned in the Act without setting forth plenary analysis, we accept the decision of our sister circuit. The petition for review is dismissed. . The American Association of Meat Processors has filed an amicus curiae brief asserting the contentions of small-scale meat processors with regard to the regulations in question. Although the issues raised by amicus cannot enlarge the issues raised by the parties, the EPA has assured this court that the Agency is reconsidering the regulations as they affect small-scale operations and has documented its efforts. We understand a part of the EPA reevaluation is the exploration of the possibility of an exemption for small plants similar to that established at 40 C.F.R. § 432.101(b) for small-scale rendering plants. . The petitioners assert two nontechnical challenges to the regulations promulgated by the Agency. First the petitioners allege that the EPA acted arbitrarily and capriciously in failing to adopt the recommendations of the Effluent Standards and Water Quality Information Advisory Committee (ES&WQIAC). ES&WQIAC was created by Congress, 33 U.S.C. § 1374, to act as an advisory committee to EPA in the promulgation of effluent standards. ES&WQI-AC criticized the “exemplary plant” methodology used by EPA and recommended that a “matrix system” be used. The EPA argues that since the matrix system had not been fully developed, its failure to employ that method cannot be considered arbitrary and capricious. We agree. The petitioners’ second nontechnical challenge to the regulations is that the EPA’s failure to identify the exemplary plants in the publication of proposed regulations denied the petitioners an opportunity to meaningfully participate in the rulemaking proceedings. The petitioners rely on Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974), as the basis for this contention. The present case is distinguishable from Portland Cement, however. In that case, the tests relied on by the Agency in formulating air pollution control standards were not revealed until after the rules had been formally adopted. Here, the data relied on by the EPA was disclosed in the proposed regulation document. Only the identity of the exemplary plants was omitted from the published document, and that information was available upon request. We find the procedure sufficient for a notice and comment' rulemaking procedure. See K. Davis, Administrative Law of the Seventies § 6.01-1 (1976).

Minnesota v. Hoffman

TALBOT SMITH, Senior District Judge. The case before us is one of first impression and involves the dredging operations of the Army Corps of Engineers. The various procedural arguments made below have not been pursued on appeal. The issue, the parties are agreed, is the authority of the State of Minnesota under the Federal Water Pollution Control Act Amendments of 1972 (hereafter “the Amendments”), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (Supp. IV), to regulate the Corps of Engineers of the United States Army, in the Corps’ conduct of dredging operations in the navigable waters of the United States, within Minnesota. The District Court, writing before the recent interpretation of the 1972 Amendments by the Supreme Court in EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), held that § 402(b) of the Amendments, 33 U.S.C. § 1342(b) (Supp. IV), establishing the National Pollutant Discharge Elimination System (hereafter “NPDES”), “grants to Minnesota authority to require defendants to comply with state pollution abatement requirements including obtaining a state discharge permit.” Minnesota, Spannaus v. Callaway, 401 F.Supp. 524, 531 (D.Minn.1975). We reverse and remand for the entry of judgment in accordance herewith. The original Federal Water Pollution Control Act was passed in 1948, frequently revised, and codified at 33 U.S.C. § 1151 et seq. It proved to be inadequate. The result was the enactment of the Amendments of 1972, their objective being “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Although the Amendments retained the basic policy placing primary responsibility for the control of water pollution in the states, two major' changes were made. The first imposes direct restrictions on discharges of pollutants, phrased in terms of “effluent limitations” on “point sources,” thus making it unnecessary, as had been the case theretofore, to work backwards from a polluted body of water to determine the point source of the pollution. The second major change was the establishment of the National Pollutant Discharge Elimination System (NPDES) for the purpose of attaining and enforcing the effluent limitations. The Bill of Complaint alleged that the Corps of Engineers, for the purpose of aiding commercial navigation, maintains a navigation channel in the Mississippi River, various harbors on Lake Superior, and a harbor on Lake of the Woods by its dredging operations. These dredging operations are alleged to have caused deterioration in water quality. Both federal law and state law were relied upon and violations of both were alleged. The relief requested was a declaratory judgment that the “applicable federal law requires the dredging activity of the defendants to be carried out within the ambit of state laws and regulations,” and that the dredging activities of the defendants within the State of Minnesota “be conducted in accordance with the Minnesota Statutes and Regulations regarding water quality.” The Corps moved to dismiss under Fed.R. Civ.P. 12(b), arguing that the District Court lacked subject matter jurisdiction and that the complaint failed to state a claim for which relief could be granted. Oral argument on the motion was held, and, as the parties agreed that no question of material fact existed, the District Court considered the matter submitted on cross-motions for summary judgment, granted the state’s motion, and denied that of the Corps. First, the District Court’s conclusion that the Corps is required to obtain discharge permits from the State of Minnesota cannot be maintained, in light of State Water Resources Control Board, supra. In, State Water Resources Control Board, the Supreme Court held that agencies of the federal government do not need to obtain NPDES discharge permits from the states. We turn now to the major question posed by this case. In support of its argument that the Corps is required to conform to the State’s water quality standards and effluent limitations, Minnesota relies primarily upon two sections of the Amendments, § 313, 33 U.S.C. § 1323 (Supp. IV), and § 510, 33 U.S.C. § 1370 (Supp. IV). The former, § 313, requires that: Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. * * * This provision of the Amendments, it is argued, “clearly and explicitly requires Federal entities to comply with State requirements respecting the control and abatement of pollution.” In addition, in support of its position, the State urges to us the requirements of § 510, 33 U.S.C. § 1370 (Supp. IV), providing, in part, that: Except as expressly provided in this Act, nothing in this Act shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; * * * The Corps, per contra, raises a basic constitutional issue, asserting that the Supremacy Clause of the United States Constitution (Art. VI, Cl. 2), absent Congressional authorization, bars state regulation of its dredging operations, which are performed in the navigable waters of the United States to maintain navigation, and that Congress has nowhere in the 1972 Amendments authorized such state regulation. Per contra, it urges that § 404 of the Amendments, 33 U.S.C. § 1344 (Supp. IV), creates an exclusive program for dredged or fill material, including dredged spoil. Under this section, it is argued, the sole and exclusive responsibility for the administration of the program is vested in the Secretary of the Army, acting through the Chief of Engineers, and no provision is found therein for administration by the EPA or by any state. Section 404 provides as follows: PERMITS FOR DREDGED OR FILL MATERIAL SEC. 404. (a) The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. (b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary of the Army (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary of the Army, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 403(c), and (2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage. (c) The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary of the Army. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection. With respect to the above-quoted section, the Corps points out that § 402, 33 U.S.C. § 1342 (Supp. IV), the section creating the NPDES, commences with an exception, manifesting a Congressional intent that the EPA not exercise administrative authority over the pollutant covered by § 404, namely, (a)(1) Except as provided in sections 318 and 404 of this Act, the Administrator may * * * issue a permit for the discharge of any pollutant * * *. (Emphasis and added footnote ours.) At the heart of the controversy, then, is the basic question of the existence and extent, if any, of the authority of the state, purportedly embodied principally in § 313, 33 U.S.C. § 1323 (Supp. IV), and § 510, 33 U.S.C. § 1370 (Supp. IV), over the Corps of Engineers as to the Corps’ dredging for the purpose of aiding commercial navigation, in the light of the heretofore cited provisions relied upon by the Corps, principally §§ 402, 33 U.S.C. § 1342 (Supp. IV) and 404, 33 U.S.C. § 1344 (Supp. IV). The legislative history of the 1972 Amendments is extensive and we have reviewed it in detail. The Senate version of the Amendments, S.2770, as reported out of the Senate Committee on Public Works, did not contain a special provision on dredging. The only special provision in the bill on dredging was § 401(c): In order to implement the provisions of this section, the Secretary of the Army, acting through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an appropriate charge for such use. Moneys received from such licensees or permittees shall be deposited in the Treasury as miscellaneous receipts. As reported out of the Senate Committee on Public Works, § 402 of S.2770 would have included the disposal of dredged spoil in the NPDES, requiring that a permit be obtained from the EPA Administrator. During the Senate floor debate on S.2770, Senator Ellender, of Louisiana, introduced the following amendment: At page 161, between lines 7 and 8 add new section: Sec. 404. (a) The Secretary of the Army may issue permits, after notice and opportunity for public hearing, for the does not have to obtain a Minnesota NDPES permit. See note 31 infra. discharge of dredged materials into navigable waters at specified disposal sites. (b) In identifying disposal sites for the purposes of subsection (a), the Secretary shall apply the criteria established pursuant to subsection (c)(1) of section 403 together with an evaluation of the impact of such sites, on navigation and anchorage. In applying such criteria, the Secretary in cooperation with the Administrator, shall determine those sites which would not adversely affect shellfish beds, fisheries (including spawning and breeding areas) or recreation areas. (Footnote ours.) 2 Leg.Hist. at 1386. In explanation of his amendment Senator Ellender said: It simply retains the authority of the Secretary of the Army to issue permits for the disposal of dredged materials. This is essential since the Secretary of the Army is responsible for maintaining and improving the navigable waters of the United States. Id. In explaining subsection (b) of his amendment, Senator Ellender amplified his concern with the maintenance of navigation: * * * The Secretary of the Army will not be obligated to require strict compliance with the effluent requirements established by the Environmental Protection Agency in issuing permits. The strict adherence to the published standards would result in 90 percent of the ports and harbors of the United States being closed, until such time as land disposal areas are provided. This would create a catastrophical situation with respect to our foreign and domestic commerce. Id. at 1387. Senator Muskie spoke in opposition to the Ellender amendment, arguing, in part: What Senator Ellender’s amendment would do would be to exempt dredging. There is no question that the Secretary of the Army should retain authority to permit dredging operations for the purpose of navigable water and channel maintenance. It is a mission-oriented agency, and this is its mission. We do not undertake to turn that mission over to anybody else, and that specific activity should not be interfered with by the Environmental Protection Agency. But, conversely, spoil disposal should be subject to EPA regulations. Spoil disposal is a pollutant. Any person who wished to dump polluted dredge spoil into navigable waters would be required, under this section, to get a permit from EPA or the State, just as would be required of other discharges. Id. at 1388. The House version of the Amendments, H.R. 11896, differed from the Senate version as to the disposal of dredged material into the navigable waters. Section 404(a) thereof provided, as does § 404 of the Amendments, 33 U.S.C. § 1344 (Supp. IV), for the Secretary of the Army to issue the specified permits, upon his determination that “such discharge [would] not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.” In making this determination, the Secretary was to apply, inter alia, guidelines promulgated by the Administrator, but in the event of conflict, the Secretary was to have had the final decision-making authority. The report of the House Committee on Public Works stated: The Committee expects that until such time as economic and feasible alternative methods for disposal of dredge material are available, no arbitrary o[r] unreasonable restrictions shall be imposed on dredging activities essential for the maintenance of interstate and foreign commerce, and that, consistent with the intent of this Act, the Committee expects the disposal activities of private dredgers and the Corps of Engineers will be treated in a similar manner. (Emphasis ours.) Minnesota argues that the second portion of the quoted paragraph, regarding similar treatment of private dredgers and the Corps, supports its position. It says, in substance, that since private dredging is subject to state regulation, “the Corps activities can only be similarly treated if they are also subject to State regulation.” However, as may be observed, the House Committee expressed only an intent that private dredgers and the Corps be given similar but not identical, treatment. In any event, identical treatment of Corps dredging and private dredging is not possible. Private dredgers, like all other “applicants” for federal permits, must obtain water quality compliance certificates from the states in order to obtain federal permits. § 401(a), 33 U.S.C. § 1341(a) (Supp. IV). Federal agencies are not “applicants,” § 401(a)(6), 33 U.S.C. § 1341(a)(6) (Supp. IV), and thus they need not obtain state certificates of water quality compliance. The sentence relied upon by Minnesota, is, however, construed out of context. The language concerning similar treatment for Corps dredging and private dredging occurs immediately after the Committee expresses its concern that unreasonable restrictions not be placed “on dredging activities essential for the maintenance of interstate and foreign commerce.” It is the dredging activities of the Corps which are essential for the maintenance of commerce. In the Conference Committee a compromise was reached on the treatment of dredged spoil as a pollutant. The Conferees adopted a version substantially similar to the House version, the major difference being that the Conference version gives the EPA Administrator a veto power over the Secretary of the Army in the issuance of permits. As enacted, § 404 of the Amendments, 33 U.S.C. § 1344 (Supp. IV), follows the House version in placing the authority for issuing permits for the discharge of dredged spoil in the Secretary of the Army, acting through the Chief of Engineers. However, subsection (b) of § 404 requires the Secretary of the Army to apply guidelines developed by the EPA Administrator, in conjunction with the Secretary of the Army, in specifying disposal sites. If the guidelines would alone prohibit the specification of a disposal site, the Secretary of the Army may also consider “the economic impact of the site on navigation and anchorage.” § 404(b), 33 U.S.C. § 1344(b) (Supp. IV). Subsection (c) of § 404 gives the EPA Administrator a veto power over the specification and use of defined areas as disposal sites when he determines “that the discharge of [dredged or fill] such materials into such area[s] will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” The Conference Committee report, like the House and Senate Committee reports, expressed the intent that dredging activities necessary for the maintenance of commerce not be unreasonably impeded: The Secretary and the Administrator shall act promptly on dredging permits essential for the maintenance of interstate commerce because of the seasonal nature of dredging and the need to preschedule scarce dredging equipment. It is expected that until such time as feasible alternative methods for disposal of dredged or fill material are available, unreasonable restrictions shall not be imposed on dredging activities essential for the maintenance of interstate and foreign commerce. Consistent with the intent of this Act, the conferees expect that the disposal activities of private dredgers and the Corps of Engineers will be treated similarly. S.Rep.No.92-1236, supra at 142; 1 Leg.Hist. at 325, U.S.Code Cong. & Admin.News 1972, p. 3819. The State of Minnesota is subject to the authority of the United States Government in the matter before us. We start with the seminal principle of our law “that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states and cannot be controlled by them.” McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 426,4 L.Ed. 579, 606 (1819). From this principle is deduced the corollary that “[i]t is the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operation from their own influence.” Id., at 427, 4 L.Ed., at 606. The effect of this corollary, which derives from the Supremacy Clause and is exemplified in the Plenary Powers Clause giving Congress exclusive legislative authority over federal enclaves purchased with the consent of a State, is “that the activities of the Federal Government are free from regulation by any state.” As Mr. Justice Holmes put it in Johnson v. Maryland, 254 U.S. 51, 57, 41 S.Ct. 16, 17, 65 L.Ed. 126, 129 (1920), “the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them Taken with the “old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign” “without a clear expression or implication to that effect,” this immunity means that where “Congress does not affirmatively declare its instrumentalities or property subject to regulation,” “the federal function must be left free” of regulation. Particular deference should be accorded that “old and well-known rule” where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign. Because of the fundamental importance of the principles shielding federal installa tions and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is “a clear congressional mandate,” “specific congressional action" that makes this authorization of state regulation “clear and unambiguous.” Hancock v. Train, 426 U.S. 167, 178, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976) (footnotes omitted and emphasis added). With these considerations and the Congressional debates in mind, we look to the principal arguments relied upon by the State, namely §§ 313, 33 U.S.C. § 1323 (Supp. IV), and 510, 33 U.S.C. § 1370 (Supp. IV), of the Amendments. Minnesota seeks to find support for its position by virtue of the fact that Congress, in § 313, removed an asserted ambiguity in the prior law, § 21(a) of the Water Quality Improvement Act of 1970, 33 U.S.C. § 1171(a) (1970), by requiring federal agencies to “comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements * * There is no doubt that the prior law as to the duty of Federal facilities and activities to comply with the requirements of pollution control laws has been strengthened but this strengthening does not directly address the problem at hand: Whether Congress intended to waive the immunity of the Corps of Engineers from state regulation of those dredging activities of the Corps which are essential for the maintenance of interstate commerce. Nor is there any indication in the legislative history of § 313 that Congress intended to subject the disposal of dredged material by the Corps to state law. Section 313 constitutes a general authorization on the part of Congress, that “[ejach * * * agency * * * of the Federal Government * * * shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution.” Minnesota urges that the words are clear and unambiguous and hence there is no need to look at the legislative history or other sections of the Amendments. We have seen, however, only recently, that § 313 is to be construed in the light of the Congressional intent with respect thereto. State Water Resources Control Board, supra. The problem arises from the fact that words do not construe themselves. It would be anomalous to close our minds to persuasive evidence of intention on the ground that reasonable men could not differ as to the meaning of the words. Legislative materials may be without probative value, or contradictory, or ambiguous, it is true, and in such cases will not be permitted to control the customary meaning of words or overcome rules of syntax or construction found by experience to be workable; they can scarcely be deemed to be incompetent or irrelevant. (Citation omitted.) The meaning to be ascribed to an Act of Congress can only be derived from a considered weighing of every relevant aid to construction. United States v. Dickerson, 310 U.S. 554, 562, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356 (1940) (Murphy, J.) (footnote omitted). Moreover, a statute will not be read literally if such a reading leads to a result that conflicts with Congress’ intent. In Helvering v. New York Trust Co., 292 U.S. 455, 464-65, 54 S.Ct. 806, 808, 78 L.Ed. 1361 (1934), in .addressing this point the Court stated: But the expounding of a statutory provision strictly according to the letter without regard to other parts of the act and legislative history would often defeat the object intended to be accomplished. * * Quite recently in Ozawa v. United States, 260 U.S. 178, page 194 [43 S.Ct. 65, 67, 67 L.Ed. 199], we said: “It is the duty of this Court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance, but if this leads to an unreasonable result, plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail.” Thus, what is asserted to be the literal meaning of § 313 must be interpreted to give effect to the intent of Congress that the Corps is not to be hampered in maintaining navigation. What we are here dealing with is a specific agency, the Corps of Engineers, performing a specific federal function, the clearing of the channels of interstate commerce for purposes of navigation, its responsibility being delineated in a special section of the Act, § 404, 33 U.S.C. § 1344 (Supp. IV). Unlike all other pollutants, dredged spoil is not regulated under the NPDES, § 402, 33 U.S.C. § 1342 (Supp. IV), since § 402(a)(1) establishing the NPDES begins, as we have seen, with the words, “[e]xcept as provided in sections 318 and 404.” With respect to § 510, 33 U.S.C. § 1370 (Supp. IV), quoted supra at p. 1202, Minnesota asserts that “[t]his unequivocal language was passed in direct response to claims such as the Corps is making in this case.” A careful reading of § 510, however, makes it clear that this section does not purport to grant the states any new authority. By its terms, § 510 is designed only to prevent the Amendments from “precluding] or deny[ing] the right of any State * * * to adopt or enforce” pollution control requirements. Thus it prevents the Amendments from pre-empting the states from adopting higher pollution control standards than those established under the Amendments. The Corps does not argue pre-emption. Section 510 does not address the issue of state control over the Corps’ dredging essential for the purpose of maintaining navigation. There is a suggestion by amici that failure to impose upon the Corps of Engineers the requirements of state water pollution control may result in action by the Secretary of the Army inimical to proper environmental considerations. The Act is not so construed by the Army and the EPA. Both the EPA guidelines and the Army’s regulations bear directly on this point. Under the guidelines, evaluation criteria, expressly made applicable to the Corps of Engineers, are developed for all proposed discharges of dredged or fill material. The regulations controlling the Corps, in turn, require the Corps to consider the environmental, as well as the social and economic consequences of its civil projects. It appears also that the Corps is currently conducting a study of the environmental effects of the disposal of dredged material which, we are also told, is being applied in implementing § 404, 33 U.S.C. § 1344 (Supp. IV), to assure that all discharges of dredged material result in the least environmental harm possible. In light of the principles we have discussed, the Supremacy Clause, the legislative history of the Act, as well as its internal structure, we find with respect to the disposal of dredged material by the Corps, that there is insufficient evidence to meet the clear and unequivocal standard for finding Congressional authorization for state regulation under the teachings of Hancock, supra, and State Water Resources Control Board, supra, whether by authorization under the NPDES or independently thereof. Although environmental considerations were matters of grave concern to the Congress, and obviously so to both the Environmental Protection Administration and the Secretary of the Army, as appears clearly from their respective guidelines and regulations, the overriding concern of the Congress in this context was for the maintenance of unimpeded traffic in the navigable waters of the United States. Regulation by the various States of the Union, each with its own requirements, could result in a conceivably chaotic situation as riverborne traffic moved from the boundaries of one state to those of another. We find no authorization of such state regulation in the legislative history of the Act or its several sections. We hold that the Congress did not intend a subordination of the federal power and authority in this area to State control. Reversed and remanded for entry of judgment in accordance herewith. . The term, “navigable waters,” as here used means “the waters of the United States, including the territorial seas.” Amendments § 502(7), 33 U.S.C. § 1362(7) (Supp. IV). That the Congress intended to extend the Act’s jurisdiction to the constitutional limit is clear from the Conference Committee report, S.Rep.No. 92-1236, 92d Cong., 2d Sess. 144 (1972), U.S. Code Cong. & Admin.News 1972, p. 3776 in 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (compiled for the Senate Comm, on Public Works by the Library of Congress), Ser. No. 93-1 at 327 (1973) (hereafter “Leg.Hist.”). . § 402, 33 U.S.C. § 1342 (Supp. IV). . Act of June 30, 1948, 62 Stat. 1155. . See State Water Resources Control Board, supra, at 200, 96 S.Ct. at 2022, 48 L.Ed.2d 578. . § 101(a)(1), 33 U.S.C. § 1251(a)(1) (Supp. IV). . See § 101(b), 33 U.S.C. § 1251(b) (Supp. IV). . See § 311(b), 33 U.S.C. § 1311(b) (Supp. IV). The terms “effluent limitation” and “point source” are defined in § 502(11), 33 U.S.C. § 1362(11) (Supp. IV), and § 502(14), 33 U.S.C. § 1362(14) (Supp. IV), respectively. . The Corps points out that it is under a duty to maintain a nine foot channel in the Mississippi River, 47 Stat. 55, and a twenty-eight foot channel for the Duluth-Superior Harbor, River and Harbor Act of 1960 § 101, 74 Stat. 480,482. . There are actually two Minnesota permit programs involved in this case. The first, established under Minn.Stat. § 115.03 subds. 1(e) & 5 (1974), is the Minnesota NPDES program, which § 402(b) of the Amendments, 33 U.S.C. § 1342(b) (Supp. IV), authorizes. Minnesota’s NPDES program has been approved by EPA, see 39 Fed.Reg. 2606 (July 16, 1974). The second, the Minnesota Disposal System, Minn. Stat. § 115.07, is an independent state permit program, not authorized by federal law, and not submitted to EPA for approval. As a matter of practice, Minnesota issues one permit to water polluters, designated as both a Minnesota Disposal System permit and a Minnesota NPDES permit. While compliance by federal agencies with independent state permit programs was not directly at issue in State Water Resources Control Board, supra, the rationale for that decision leads, a fortiori, to the conclusion that the Corps need not obtain such permits. The Court’s rationale in State Water Resources Control Board was that there had not been a clear and unequivocal waiver, by Congress, of federal immunity from state regulation with respect to state administered NPDES permit programs. Unlike state NPDES permit programs, the Minnesota Disposal system is not authorized by Congress, hence the case for finding a waiver of federal immunity is much weaker with respect to it than with respect to state NPDES programs. . The Administrator here referred to is the Administrator of the EPA. § 101(d); 33 U.S.C. § 1251(d) (Supp. IV). . Note that the exception in § 402, “except as provided in section! ] * * * 404,” provides another basis, independent of the Supreme Court decision in State Water Resources Control Board, supra, for holding that the Corps . The legislative history of the 1972 Amendments has been compiled for the Senate Committee on Public Works, by the Library of Congress, in two volumes containing 1,766 pages. . S.2770 at 151-52, 2 Leg.Hist. at 1684-85. Section 401(c) of S.2770 became § 401(c) of the Amendments, 33 U.S.C. § 1341(c) (Supp. IV), without amendment. . We note the similarity between the language of the amendment proposed as § 404(a) and that ultimately enacted. . 92d Cong., 1st Sess., 2 Leg.Hist. 1534 (1971). . 92d Cong., 2d Sess., 1 Leg.Hist. 893 (1972). . H.R. 11896 § 404(b), 1 Leg.Hist. at 1063-64. The Secretary of the Army would have been allowed to disregard the Administrator’s guidelines and recommendations when he determined that there was “no economically feasible alternative reasonably available.” . H.R.Rep.No.92-911, 92d Cong., 2d Sess. at 130, 1 Leg.Hist. at 817. . Brief for Minnesota at 22. . As enforced by Department of the Army regulations, § 404 does provide for similar treatment of the disposal activities of private persons and those of the Corps. The guidelines promulgated by the EPA Administrator, in conjunction with the Secretary of the Army, under § 404(b), have been recognized by the Army to be applicable to the Corps’ dredging activities. See 33 C.F.R. § 209.145(a) (1975). Furthermore, the Army recognizes that the limited veto power over the specification of disposal sites given to the Administrator in § 404(c) applies to the Corps’ own projects. See 33 C.F.R. § 209.145(b)(1) (1975). Additionally, the Corps has devised a procedure functionally equivalent to permit issuance for its own dredging projects. See 33 C.F.R. § 209.-145(f)(l)(vii) (1975). . See also 33 C.F.R. § 209.120(f)(3) (1975); 40 C.F.R. Part 230, 40 Fed.Reg. 11292-93 (Sept. 5, 1975). . § 404(c), 33 U.S.C. § 1344(c) (Supp. IV). This veto power will be discussed in more detail, infra. . The EPA Administrator has promulgated interim final guidelines, 40 C.F.R. Part 230, 40 Fed.Reg. 11292 (Sept. 5, 1975). . The Department of the Army recognizes that the Administrator’s, but not a state’s, veto power is applicable to the dredging projects of the Corps of Engineers. 33 C.F.R. § 209.-145(b)(1) (1975), which is applicable to the dredging projects of the Corps, 33 C.F.R. § 209.145(a) (1975), provides, in relevant part: * * * Furthermore, the Administrator can prohibit or restrict the use of any defined area as a disposal site whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shell fish beds and fishery areas, wildlife or recreation areas. Another explanation of the final version of the Amendments was provided by Senator Muskie, who explained the final version in the following terms: PERMITS FOR DREDGED OR FILL MATERIAL [Section 404] A major difference between the Senate bill and the House amendment related to the issue of dredging. The Senate Committee had reported a bill which treated the disposal of dredged spoil like any other pollutant. Pursuant to an amendment accepted on the Senate floor, dredged spoil disposal was made subject to a different set of criteria to determine any environmental effects. The House bill not only established a different set of criteria to determine the environmental effects of dredged spoil disposal but also designated the Secretary of the Army rather than the Administrator of the Environmental Protection Agency as the permit issuing authority. The Conference agreement follows those aspects of the House bill which related to the Secretary of the Army’s regulatory authority. However, consistent with the Senate provision, the Administrator of the Environmental Protection Agency has three clear responsibilities and authorities. First, the Administrator has both responsibility and authority for failure to obtain a Section 404 permit or comply with the condition thereon. Section 309 authority is available because discharge of the “pollutant” dredge spoil without a permit or in violation of a permit would violate Section 301(a). Second, the Environmental Protection Agency must determine whether or not a site to be used for the disposal of dredged spoil is acceptable when judged against the criteria established for fresh and ocean waters similar to that which is required under Section 403. Third, prior to the issuance of any permit to dispose of spoil, the Administrator must determine that the material to be disposed of will not adversely affect municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife or recreational areas in the specified site. Should the Administrator so determine, no permit may issue. 1 Leg.Hist. at 177. . See also State Water Resources Control Board, supra, respecting the Act before us: Our decision in this case is governed by the same fundamental principles applied today in Hancock v. Train, * * * : federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous. As in Hancock v. Train, we must determine whether Congress has subjected federal installations to the degree of state control urged by the States, at 211, 96 S.Ct. at 2028. . Section 21(a) of the 1970 Act provided in relevant part: Each Federal agency * * * having jurisdiction over any real property or facility, or engaged in any Federal public works activity of any kind, shall, consistent with the paramount interest of the United States as determined by the President, insure compliance with applicable water quality standards and the purposes of this Act in the administration of such property, facility, or activity. . See also Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). . The intent of the Congress to maintain navigation finds further support in § 511(a)(2), 33 U.S.C. § 1371(a)(2) (Supp. IV), stating that the 1972 Amendments “shall not be construed as * * * affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation * * *.” . That Federal power over navigation and navigable waters is plenary and predominant, see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 334, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). . Supra at 1202. . That dredged spoil is not regulated under the NPDES is true whether the NPDES permit program is administered by EPA pursuant to § 402(a), or by a state, pursuant to § 402(b). As can be seen from the structure of § 402 (E. g., § 402(a)(3), stating that the NPDES program is subject to “the same terms, conditions, and requirements” whether administered by the states or EPA, as well as § 402(c), stating that any state permit program under this section shall be in accord with § 402), the NPDES is a particularized unitary program. Thus state-administered NPDES permit programs, as well as EPA-administered NPDES programs are limited by the exceptions delineated in § 402(a)(1). . Brief for Minnesota at 15. . See also H.R.Rep.No.92-911, supra at 136, 1 Leg.Hist. at 823. . 40 C.F.R. Pt. 230, 40 Fed.Reg. 41292 (Sept. 5, 1975). . 33 C.F.R. Pt. 209, as amended, 40 Fed.Reg. 31320 (July 25, 1975). . 40 C.F.R. § 230.1(b)(2), 40 Fed.Reg. 41293 (Sept. 5, 1975). . See 33 C.F.R. § 209.410 (1975); 33 C.F.R. § 209.145(f) (1975). . See Reply Brief for Appellants at 4. . Authorized by the River and Harbor Act of 1970 § 123(i), 33 U.S.C. § 1165a(i) (1970). . The evaluation criteria are stated in 40 C.F.R. §§ 230.4-230.5, 40 Fed.Reg. 41294-96.

Committee for Consideration of Jones Falls Sewage System v. Train

HAYNSWORTH, Chief Judge: The question is whether there is a body of federal common law conferring rights upon private citizens to enjoin intra-state stream pollution which is not enjoinable under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C.A. § 1251 et seq. We hold there is not. Jones Falls Stream, which flows into the Patapsco River and thence into Baltimore Harbor, from time to time is polluted by untreated sewage flowing over the weir of the Jones Falls Sewage System treatment plant. A group of citizens living near Jones Falls Stream or frequenting its banks joined as plaintiffs in this action seeking injunctive relief under the federal statute. It soon appeared, however, that they had no cause of action under the statute, for the city officials had submitted to the Maryland Department of Public Works a timely and properly supported application for a discharge permit under the provisions of § 1342(k). That section provides that, during the pendency of a timely and properly supported application, discharges shall not be in violation of the statute. Later, during the pendency of this litigation, the state agency, with the authorization of the Environmental Protection Agency, actually issued a permit since there was a finding that the present statutory standards were being met. Permitting an interim discharge of pollutants is in accordance with the comprehensive regulatory scheme of the Federal Water Pollution Control Act Amendments of 1972. Its ultimate objective is the elimination of all water pollution. Purity however, is not to be achieved or required instantaneously. Instead the Act establishes a series of steps which impose progressively stricter standards until the final elimination of all pollutant discharges is achieved, that being envisioned for the year 1985. When it appeared that the plaintiffs might have no cause of action under the statute, they tendered an amended complaint alleging also a federal common law right of action to obtain an injunction against further connections to the sewer line emptying into the Jones Falls Stream. The amended complaint was rejected because the district court concluded there was no federal jurisdiction to consider the claim. We come to the same result, but we reach it on the merits, concluding that the amended complaint stated no claim upon which relief may be granted. When the Supreme Court in 1938 decided Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, it reversed the course of earlier judicial history during which federal courts had fashioned their own substantive rules of law for application to controversies within the diversity jurisdiction. In halting that course, the Supreme Court declared, supra at 78, 58 S.Ct. at 822: There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or “general,” be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. While Erie’s doctrine has remained one of the fundamental ties of our federalist system of government, absolutisms seldom remain absolute. Since Erie, some federal common law has evolved. This “new federal common law” respecting waters came into being as a necessary expedient in the resolution of interstate controversies. When ranchers in New Mexico used a pesticide which polluted streams in Texas upon which Texas citizens were dependent for drinking water, or when cities and sewage commissions in Wisconsin cast insufficiently treated sewerage into Lake Michigan which polluted beaches in Illinois, the federal courts were confronted with a dilemma. The law of the state whose citizens were subject to injuries by the interstate pollution ought not to govern the conduct of citizens and municipalities in another state, while to apply the law of the offending state would be a utilization of the laws of a state whose selfish interest was in the protection of the offenders, herself, her political subdivisions or her citizens. Of necessity, the Court of Appeals for the Tenth Circuit, in 1971, in Pankey, and the Supreme Court, in 1972, in Illinois v. Milwaukee, turned to a body of federal common law for the resolution of interstate pollution controversies when a state sought extra-territorial relief on behalf of her citizens. We may thus take it as established that there is a body of federal common law by which a public nuisance in one state which infringes upon the environmental and ecological rights of another state may be abated. As thus applied, there is an acceptable accommodation of state and national interests. Too, as the Supreme Court observed in Illinois v. Milwaukee, there is much federal interest in interstate and navigable waters. The existence of the Federal Water Pollution Control Act attests to the federal interest in interstate waters. Yet, the statute was largely designed to enlist the aid of the states and, through state action, to achieve the final objective of purity of waters. As the Congress stated in § 1251(b) of the Act: It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, Perhaps with the exception of actions by the United States to abate public nuisances created in navigable waters by polluters, but consistent with § 1251(b), the doctrine of Illinois v. Milwaukee has not been extended beyond the abatement of public nuisances in interstate controversies where the complainant is a state and the offenders are creating extra-territorial harm. In controversies such as this one, there is present neither the reason nor the necessity for the invocation of a body of federal common law which was present in Illinois v. Milwaukee. This intrastate controversy is entirely local. The plaintiffs are Maryland citizens complaining of the conduct of public officials of the City and County of Baltimore, Maryland. It is not contended that the alleged pollution of Jones Falls Stream has any effect outside the State of Maryland, and no other state is complaining of it. Maryland law is perfectly adequate for the resolution of such disputes between some of her citizens and some of her public officials. To the extent there is a federal interest, it is expressed in the Federal Water Pollution Control Act Amendments of 1972, but the plaintiffs have no claim based upon that statute. Indeed, it would be an anomaly to hold that there was a body of federal common law which proscribes conduct which the 1972 Act of Congress legitimates. The defendants are in compliance with the statute. They are operating under a permit issued in accordance with the statute and the authorization of the Environmental Protection Agency. The Congress and the Executive Department, acting through the Environmental Protection Agency, have declared their conduct lawful until the time for the application of more restrictive standards. While the state courts are free to apply state nuisance law more rigidly, a federal court in such a local controversy may not turn to a supposed body of federal common law to impose stricter standards than the statute provides. That the rule of Illinois v. Milwaukee is limited to interstate controversies in which the rights of a state are sought to be vindicated, is supported not only by the absence of any underlying reason and necessity for an extension of the rule but by the recent case of Reserve Mining Co. v. Environmental Protection Agency, 8 Cir., 514 F.2d 492, 520, 521 (En Banc). There the United States and the States of Michigan, Minnesota and Wisconsin were among the plaintiffs seeking to enjoin Reserve Mining’s discharge of taconite tailings into Lake Superior. The Court of Appeals for the Eighth Circuit, while granting relief on other grounds, held that the rule of Illinois v. Milwaukee was inapplicable, notwithstanding the presence of the state plaintiffs, because no interstate effect was alleged. Here, where the controversy is strictly local, where there is no claim of vindication of the rights of another state and where there is no allegation of any interstate effect, we conclude there is no body of federal common law to which the plaintiffs may resort in their effort to obtain judicial relief from discharges which the federal statute and the federal regulatory agency permit. Since the amended complaint did not state a claim upon which relief might be granted, the district court properly dismissed it. AFFIRMED. . See Friendly, “In Praise of Erie — and the New Federal Common Law.” 39 N.Y.U.L.Rev. 383 (1964). . There is a body of federal common laws for the implementation and enforcement of federal constitutional grants and guarantees and, more particularly, for the settlement of interstate boundary disputes. See Monaghan, Forward: Constitutional Common Law, The Supreme Court, 1974 Term, 89 Harv.L.Rev. 1 (1974). . Texas v. Pankey, 10 Cir., 441 F.2d 236. . Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). . Such a body of federal common law had been applied before Erie. In Georgia v. Tennessee Copper Company, 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) the Supreme Court held that the State of Georgia was entitled to injunctive relief against the discharge of noxious fumes from copper works located in Tennessee where the evidence showed that the fumes were destroying forests and crops over a large section of Georgia. . See Monaghan, Forward: Constitutional Common Law, The Supreme Court, 1974 Term, 89 Harv.L.Rev. 1 (1974); Note, “Federal Jurisdiction — Environmental Law — Nuisance— State Ecological Rights Arising Under Federal Common Law — Texas v. Pankey, 10 Cir., 441 F.2d 236, 1972 Wis.L.Rev. 597. . United States v. Ira S. Bushey & Sons, Inc., D.Vt., 363 F.Supp. 110, affd. 2 Cir., 487 F.2d 1393, and see United States v. Lindsay, E.D.N.Y., 357 F.Supp. 784, 794, but see United States ex rel. Scott v. United States Steel Corp., N.D., Ill., 356 F.Supp. 556, in which it was held that the State of Illinois, as well as the United States, had a right of action to abate the nuisance, though there appeared to be no allegation of any interstate effect. The question is not before us, but the proposition of these cases may be questionable now that the 1972 Amendments of the Federal Water Pollution Control Act are effective. See Reserve Mining Co. v. Environmental Protection Agency, 8 Cir., 514 F.2d 492, 520, 521, 532. . It is not essential that one or more states be formal parties if the interests of the state are sufficiently implicated. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938), the plaintiff was the Ditch Co. complaining of the denial by Colorado officials of rights to withdraw water from the La Plata River. The defendants undertook to justify their conduct on the basis of an interstate compact between the states of Colorado and New Mexico which had been approved by the Congress of the United States. Enforcement of the plaintiff’s claim would have denied New Mexico waters which the compact allocated to it. . Congress recognized the continuing validity of state common law nuisance actions in subsection 1365(e) of the Amendments.

Committee for Consideration of Jones Falls Sewage System v. Train

BUTZNER, Circuit Judge (dissenting): I respectfully dissent on the following grounds: ¶ Jones Falls is a part of the navigable waters of the United States. ¶ Federal law, including federal common law, is applicable to nuisances that pollute the navigable waters of the United States. ¶ Baltimore’s alleged pollution of Jones Falls in violation of federal common law presents a federal question. ¶ A citizen whose complaint satisfies the jurisdictional requirements for litigating a federal question can invoke federal common law to abate contamination of a navigable water of the United States, even though the pollution is also an intrastate nuisance. ¶ The function of federal common law for the abatement of water pollution is to fill statutory interstices and to provide uniform rules regarding the waters of the United States. Therefore, the question whether the Federal Water Pollution Control Act Amendments of 1972 preempt federal common law with respect to the issues in this case should await the development of an evidentiary record and trial on the merits. Accordingly, I would remand this case for further proceedings. My reasons for reaching these conclusions follow. I The background of the controversy now before us is relatively simple. The Committee for the Consideration of the Jones Falls Sewage System complained that Baltimore, Maryland, was discharging sewage into Jones Falls without a permit. While this case was pending, the city obtained a permit from the Maryland Department of Natural Resources to discharge effluents from sewage treatment plants into a number of waterways, including Jones Falls. The permit was authorized by the Environmental Protection Agency pursuant to the 1972 Amendments to the Water Pollution Control Act, and the committee acknowledges that its issuance moots one aspect of its suit. The committee contends that even though the city has a permit, federal common law prohibits dumping untreated sewage from new sources into Jones Falls. It alleges that in 1973 the flow of sewage exceeded the plant’s capacity by three million gallons a day and that substantial amounts of raw sewage still enter Jones Falls entirely untreated. As a result, the committee asserts, the coliform and fecal bacteria levels in the stream exceed acceptable amounts, creating noxious gases, hazards to health, and impairment of the use and enjoyment of the residential communities through which Jones Falls flows. The committee complains that the failure of the city to restrict additional sewage hookups will aggravate the problem. Pointing to the absence of any reference to a moratorium on new hookups in the Act and the permit, the committee argues that it is imperative to enjoin these additional sources of pollution by applying federal common law. If this is not done, the committee claims, Jones Falls will become dirtier in the coming decade, and the national goal of eliminating the discharge of pollutants by 1985 will be thwarted. The city and the intervenors, who are successful applicants for new hookups, insist that new sources of sewage can legally be added to the overloaded system. They contend (a) that private citizens cannot invoke federal common law to abate intrastate pollution of navigable waters, and (b) that if they can, the committee’s complaint does not state a cause of action because the 1972 Amendments preempt the federal common law. The district court ruled on the first issue, holding that only “governmental entities” can invoke the jurisdiction of federal courts under federal common law to abate a nuisance that pollutes navigable waters. Consequently, it found no occasion to consider the second issue. Committee for Consideration of Jones Falls Sewage System v. Train, 375 F.Supp. 1148, 1153-54 (D.Md.1974). II In support of its right to invoke federal common law to curtail the pollution of Jones Falls, the committee relies on § 505 of the 1972 Amendments to the Act [33 U.S.C. § 1365]. This section, after conferring a right of action on adversely affected citizens to enforce the Act, provides in subsection (e): “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).” The term “common law” is not expressly limited by this provision to the common law of the states. On its face the clause is broad enough to embrace federal common law. This leads to the principal issue of the appeal: whether the 1972 Amendments recognize and preserve the right of a citizen to invoke federal common law to abate pollution of the navigable waters of the United States. There can be no doubt that Jones Falls is a part of the navigable waters of the United States. The Act defines “navigable waters” as “waters of the United States, including the territorial seas.” The legislative history discloses that Congress intended the term “navigable waters” to “be given the broadest possible constitutional interpretation . . . .” Referring to this history, the Environmental Protection Agency has interpreted the statutory definition to include “tributaries of navigable waters of the United States.” The Agency’s construction is consistent with the Rivers and Harbors Act of 1899, which prohibits throwing refuse “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” In United States v. Valley Camp Coal Co., 480 F.2d 616 (4th Cir. 1973), we read the Act of 1899 literally, applying it to “an unnamed tributary of the Kanawha River.” After flowing a short distance, Jones Falls joins the Patapsco River, which empties into Chesapeake Bay, one of the nation’s valuable maritime resources. It is reasonable to assume that Congress realized that the great volume of water in the Bay could not be cycled through treatment plants to remove contaminants. It is also reasonable to assume that Congress could not expect persons affected by pollution in the Bay to detect the source of the pollutants in the scores of tributaries that drain its vast watershed. Protection of the Bay, Congress concluded, can best be achieved by preventing the discharge of pollutants into its tributaries, including Jones Falls. Section 505 of the Act implements this policy by allowing any adversely affected citizen to sue to abate pollution at the source. Therefore, the national interest in making the navigable waters of the United States wholesome and clean involves Jones Falls, even though Baltimore’s sewage also has an intrastate effect on people who live near the stream. Vindication of the federal interest in eliminating pollution of Jones Falls is not dependent on state law. Although Congress recognized, preserved, and protected the primacy of states’ responsibilities and rights to cleanse the waters of the United States, it did not foreclose concurrent action in federal courts to enforce federal standards. Indeed, this point is beyond debate in the lower federal courts. Construing a clause of the Water Pollution Control Act Amendments of 1956 [33 U.S.C. § 1151(b)], similar to the corresponding clause in the 1972 Amendments, the Supreme Court said: “The Federal Water Pollution Control Act in § 1(b) declares that it is federal policy ‘to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.’ But the Act makes clear that it is federal, not state, law that in the end controls the pollution of interstate or navigable waters.” Illinois v. Milwaukee, 406 U.S. 91, 102, 92 S.Ct. 1385, 1392, 31 L.Ed.2d 712 (1972). The Court’s declaration has not been eroded by the passage of time. On the contrary, the 1972 Amendments make the federal role in eliminating water pollution more pervasive than the statute which the Court was construing in Illinois. Moreover, § 505 of the Act [33 U.S.C. § 1365] authorizes citizens’ suits to enforce the Act’s effluent standards in the districts where pollutants are discharged. The federal nature of this cause of action is emphasized by Congress’ specific direction that the district court shall have jurisdiction to enforce the Act without regard to the citizenship of the parties or the amount in controversy. This grant of the right to enforce the Act is coupled with the express preservation of a citizen’s right to bring suit under common law for relief the Act does not afford. The provisions of § 505 must be read as a whole. Together they demonstrate, I believe, that Congress recognized that the pollution of navigable waters and their tributaries raises a federal question for which all federal law, including common law, is applicable. The 1972 Amendments are consistent with Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), to which I will now turn for an examination of the attributes of the federal common law applicable to the nation’s waters. Ill In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), the Court, drawing on the federal government’s long history of water control, held that federal common law could be applied to abate a public nuisance caused by pollution of interstate or navigable waters. The Court also held that a state is a proper party plaintiff, but its discussion concerning the nature of the federal common law applicable to navigable waters is not expressly limited to actions brought by states. The Court explained that this field of federal common law is fashioned from the policies of national laws dealing with the country’s natural resources and from state laws compatible with the congressional purpose. Its function is to fill statutory interstices and to provide uniform rules regarding the waters of the United States. The Court’s opinion refutes Baltimore’s argument that federal common law applies only to interstate waters. The Court expressly stated that federal common law applies also to navigable waters. But see Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 520-22 (8th Cir. 1975). Moreover, it held that application of federal common law to abate pollution in navigable waters “is not inconsistent with the Water Pollution Control Act.” 406 U.S. at 104, 92 S.Ct. at 1393. Since federal common law draws its substance from federal statutes, the expansion of the 1972 Amendments’ coverage to tributaries of navigable waters makes these tributaries also subject to federal common law. Congress, as we have noted, confirmed the Court’s understanding of the complementary role of the common law by providing that the authorization for citizens’ suits to enforce the Act would not restrict any person’s right under the common law to seek relief not afforded by the Act. See United States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556, 559 (N.D.Ill. 1973). Illinois also refutes Baltimore’s argument that only a state can invoke federal common law. The Court recognized the right of a state to do so, but it cautioned against confusing parties with subject matter in determining whether to apply federal common law: “Thus, it is not only the character of the parties that requires us to apply federal law .... [Wjhere there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law.” 406 U.S. at 105, n. 6, 92 S.Ct. at 1394. Similarly, Illinois exposes the fallacy in Baltimore’s thesis that the pollution of Jones Falls is only a local matter. On this subject the Court was explicit, saying: “The question is whether pollution of interstate or navigable waters creates actions arising under the ‘laws’ of the United States within the meaning of § 1331(a). We hold that it does; and we also hold that § 1331(a) includes suits brought by a State.” 406 U.S. at 99, 92 S.Ct. at 1390. Section 1331(a) confers jurisdiction on district courts because of the federal nature of the dispute. Cf. Georgia v. Tennessee Copper Co., 206 U.S. 230, 239, 27 S.Ct. 618, 51 L.Ed.2d 1038 (1907) (Harlan, J., concurring); Ames v. Kansas, 111 U.S. 449, 470-72, 45 S.Ct. 437, 28 L.Ed. 482 (1884). No authority justifies placing a gloss on this basic jurisdictional statute to limit its application to controversies involving a state. Baltimore suggest that the committee has no cause of action based on federal common law because the 1972 Amendments have preempted the field. At best this suggestion is premature. Resolution of this issue should await trial on the merits. Illinois teaches that a litigant is not to be denied relief because the remedy he seeks “is not within the precise scope of remedies prescribed by Congress.” 406 U.S. at 103, 92 S.Ct. at 1392. One function of the federal common law is to fill statutory interstices. The Act itself recognizes this well established principle by allowing citizens to bring suits at common law for relief not contemplated by the Act. The suggestion that a citizen must bring a suit in state court to fill the interstices of the federal Act is contrary to both § 505(e) and the principles expressed in Illinois. Furthermore, it is impractical to shuffle between federal and state courts to determine the scope of the Act and then to fill its interstices with state law. This would provoke diversity, rather than achieve uniformity, in the law governing the abatement of nuisances in the navigable waters of the United States. In sum, I find neither a substantive nor a jurisdictional barrier to a citizen’s reliance on federal common law to abate the pollution of navigable waters. Whether a citizen can maintain his suit should depend, I believe, on his standing to have a district court decide the merits of his claim. IV To establish standing, a litigant must first satisfy Article III of the Constitution by showing the existence of a case or controversy against his adversary. Further, to demonstrate that he is not barred by prudential limitations on the exercise of the court’s jurisdiction, he must point either to an express statutory grant of a right of action or to a constitutional or statutory provision that can be construed to afford persons in his situation judicial relief. See Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). An individual pressing an environmental claim must show more than a mere interest in the problem; he must prove that he himself is affected by immediate or threatened injury. An association instituting suit must allege that it, or one of its members, suffers the same harm that would entitle an individual to standing. United States v. SCRAP, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The appellants demonstrate a sufficient “personal stake in the outcome of the controversy” to satisfy Article III. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The complaint alleges that the individual appellants and the members of the associations comprising the committee live in the neighborhood through which Jones Falls flows, and it sets forth the particulars of the injuries which the discharge of sewage into the stream causes them. See Sierra Club v. Morton, supra; Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 264 (D.D.C.1973). Two provisions of the 1972 Amendments to the Act establish that aggrieved citizens and their associations should not be denied standing by prudential limitations. As I have previously noted, the Amendments expressly grant any citizen “having an interest which is or may be adversely affected” a right of action to enforce the Act’s remedies, and they preserve a litigant’s right to relief under common law. These sections disclose congressional recognition of the important role citizens can play in abating pollution of the waters of the United States. Since federal common law must conform to the national policies declared by Congress, I conclude that provisions of the 1972 Amendments authorizing citizen suits sufficiently demonstrate that a citizen’s invocation of the common law is not barred by prudential limitations on the exercise of the court’s jurisdiction. I also conclude that the committee’s cause of action is not barred by the axiom that a private person cannot enjoin a public nuisance. An exception to this doctrine permits a private action when the plaintiff suffers particular damages which are different from those inflicted on other members of the public. See W. Prosser, Law of Torts 586-91 (4th ed. 1971). The public harm in this case is the degrading of a natural resource. The private harm suffered by members of the committee who live in the vicinity of Jones Falls and frequent its banks is the personal injury they sustain from noxious odors, aesthetic offensiveness, and the threat to health caused by the discharge of raw sewage into the stream. Viewed in this light, standing provides a common denominator for suits brought under both the Act and federal common law. Thus, the lack of a personal stake, which bars a citizen’s standing under both Article III and the 1972 Amendments of the Act, also serves to limit his right under federal common law to abate a public nuisance. But when a citizen demonstrates an injury to his person or property sufficient to satisfy constitutional and prudential restrictions on standing, I believe that he is entitled to invoke federal common law for the abatement of a public nuisance in the waters of the United States. See Restatement (Second) of. Torts § 821C (Tent. Draft No. 17, 1971). Finally, I believe that the court should not address important issues bearing on the outcome of this litigation at this stage of the proceedings. Resolution of preliminary questions relating to the jurisdictional amount and to the actual — as distinguished from the alleged — standing of the complainants must await the presentation of evidence. Moreover, when considering the merits, the district court must decide the extent to which the 1972 Amendments and new federal regulations “pre-empt the field of federal common law of nuisance.” See Illinois v. Milwaukee, 406 U.S. 91, 107, 92 S.Ct. 1385, 1395, 31 L.Ed.2d 712 (1972). But this should be done only after the evidence has been developed.. Federal statutes can then provide useful guidelines to the court as it appraises the equities of the case in the light of all the facts. See Illinois, 406 U.S. at 103, n. 5, and 107, 92 S.Ct. 1385. I would, therefore, remand this case to the district court with directions that it allow the committee to amend its complaint, consider the question of jurisdictional amount, and decide whether the facts support the committee’s claim to standing. If these preliminary issues are resolved in favor of the appellants, the district court should hear and decide the case on its merits. ALBERT V. BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge, join in this dissent. . Sewage is defined by statute as a pollutant. 33 U.S.C. § 1362(6). . 33 U.S.C. § 1251(a)(1). . 33 U.S.C. § 1362(7). . S.Conf.Rep.No.92-1236, 92d Cong., 2d Sess. 144, 2 U.S.Code Cong, and Admin.News, pp. 3776, 3822 (1972). . 40 C.F.R. § 125.1(p)(2). . 33 U.S.C. § 407. . Previous federal water pollution control legislation established water quality standards to be achieved in the affected bodies of water. Recognizing the difficulty of attacking pollution already in the water, Congress shifted its emphasis in the 1972 Amendments to eliminating discharge of pollutants. See Environmental Protection Agency v. California ex rel. Water Resources Control Bd., - U.S. -, 96 S.Ct. 2022, 48 L.Ed.2d 528, 44 U.S.L.W. 4781 (U.S. June 7, 1976) (dictum); II Environmental Policy Division of the Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972, 1303 (Senate Comm, on Pub. Works Print 1973); McThenia, An Examination of the Federal Water Pollution Controi Act Amendments of 1972, 30 Wash. & Lee L.Rev. 195, 198-206 (1973). . 33 U.S.C. § 1251(b) provides in part: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . .” . See, for example, the following provisions in the 1972 Amendments: 33 U.S.C. § 1251(a) (establishing national goals for elimination of pollution), § 1316(c) (allowing state enforcement if its standards comply with federal regulation), § 1319(a)(2) (allowing the Administrator to enforce pollution limitations if a state fails to), and § 1370 (providing that no state standard may be less stringent than the federal regulations). . 33 U.S.C. § 1365 provides in part: “(a) (A)ny citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . ****** “The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. “(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). * * * * * * “(g) For the purposes of this section the term ‘citizen’ means a person or persons having an interest which is or may be adversely affected.” . A distinction, however, must be made between a suit brought under the Act and a suit brought solely under federal common law. Under the latter, proof of the jurisdictional amount is required by 28 U.S.C. § 1331(a). See Illinois v. Milwaukee, 406 U.S. 91, 98, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Whether a court that has acquired jurisdiction under § 505(a) of the Act [33 U.S.C. § 1365(d)] can also hear a common law claim without proof of the jurisdictional amount required by 28 U.S.C. § 1331(a) has not been briefed or argued on this appeal. I would request the parties to brief this question for the district court on remand. . Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957); Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383 (1964). . 33 U.S.C. § 1365(e). See note 10 supra. . Federal common law falls within the definition of “laws of the United States” in 28 U.S.C. § 1331(a). See Stream Pollution Control Bd. v. United States Steel Corp., 512 F.2d 1036, 1039 (7th Cir. 1975); Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486, 492 (2d Cir. 1968). . In developing the federal common law of water pollution, the district courts may draw on the policies expressed in the 1972 Amendments, other federal legislation such as the Rivers and Harbors Act of 1899, principles of the federal common law of nuisance, and applicable state laws. See generally H. Hart & H. Wechsler, The Federal Courts and the Federal System 762-70, 800-06 (2d ed. 1973). . Section 505(e) [33 U.S.C. § 1365(e)]; see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 699-703 (1975). . See note 10 supra. . See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 699-703 (1975). . The legislative history of 33 U.S.C. § 1365 indicates that the definition of a citizen eligible to sue under the Act in § 1365(g) was intended to grant standing to the widest extent possible under Article III of the Constitution. In the House debate on the conference version of the 1972 Amendments, a proponent of the legislation described § 1365(g) as follows: “This language is based on section 10 of the Administrative Procedure Act, 5 U.S.C. § 702, and the interpretation given to that section by the Supreme Court in Sierra Club v. Morton . . “The conferees followed the Court’s opinion. A citizen suit may be brought under the conference agreement by those persons or groups . . . whose environmental . . interest is or may be injured by a violation of the act . I Environmental Policy Division of the Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972, 249-50 (Senate Comm, on Pub. Works Print 1973).

Mianus River Preservation Committee v. Administrator, Environmental Protection Agency

MESKILL, Circuit Judge: The Mianus River Preservation Committee and several named individuals who own property along the banks of the Mianus River in Greenwich, Connecticut petition this Court for review of a modification of a National Pollution Discharge Elimination System (“NPDES”) permit made by the respondent Commissioner of the State of Connecticut Department of Environmental Protection (“DEP”). The permit had originally been issued by DEP to the Greenwich Water Company (“Water Company”) under § 402 of the Federal Water Pollution Control Act Amendments of 1972 (“FWPCA”). Petitioners alleged jurisdiction in this Court pursuant to § 509(b)(1)(F) of the FWPCA. For the reasons set forth below, we dismiss the petition for lack of jurisdiction in this Court. The underlying controversy in this case stems from the fact that the Water Company, which maintains a water filtration plant in which it chemically treats water taken from the reservoir created by a dam on the Mianus River, has for many years discharged chemically treated flocculants into the river below the dam. This practice has apparently resulted in deposits of these flocculants up to five feet in depth in some places in the river below the dam. Consequently, in February, 1972, DEP issued order No. 979, mandating that the Water Company complete facilities for treatment and thereby the reduction of the flocculant discharges into the river by June 30, 1973. In May, 1972, DEP extended the compliance date until November 30, 1973. Schedules were set for the submission and approval of various engineering proposals and for the start of construction. Although plans for the discharge treatment facilities which petitioners seem to favor were eventually approved by DEP, for numerous reasons, none the least of which was the Water Company’s apparently precarious financial position, construction on those facilities has yet to begin. Shortly after DEP first extended the facility’s completion date, Congress enacted the 1972 Amendments to the FWPCA. Those amendments created, among other things, the NPDES, a system which seeks gradual reduction and, hopefully, elimination of pollutants through the requirement of restrictive permits to those who currently discharge such wastes. Section 402(a)(1) of FWPCA placed the initial responsibility for issuing the NPDES permits with the Administrator of the Environmental Protection Agency (“Administrator”). Sections 402(a)(5) and 402(b) of the FWPCA, however, operate to transfer that responsibility to the respective states, upon each State’s request, if the Administrator determines essentially that the requesting State’s permit program will meet the requirements of the FWPCA. Connecticut’s program was approved and authorized by the Administrator on September 26, 1973. Consequently, the original DEP order No. 979 was apparently transformed by DEP into a draft NPDES Permit No. CT 0001325 on April 1,1974. That draft permit continued the requirement that the approved treatment facilities be placed in operation. As can be seen, however, the original compliance date contemplated in order No. 979 had already passed. Subsequently, on March 10, 1975, DEP modified the draft NPDES permit, and issued a formal NPDES permit establishing alternative requirements, namely, that the treatment facilities be completed by July 31, 1977 or that, by the same date, the Water Company connect its discharges to a municipal sanitary sewer system proposed for construction in the area by the Town of Greenwich. The petitioners objected generally to DEP that the permit as issued was inadequate, that the delays and failure to remedy the discharges in accordance with original order No. 979 were inexplicable, and that the sewer connection alternative did not provide a realistic means for eliminating the discharges since there was no guarantee that such a sewer would ever be constructed by the Town of Greenwich. DEP then conducted a hearing on the permit, at which hearing complaints were aired and more information was gathered. As a result of that hearing, DEP, pursuant to its authority under Chapter 474a of the Connecticut General Statutes, officially modified, the permit on August 26, 1975. Much to the dismay of the petitioners, the modification, rather than requiring an earlier compliance date, extended that date and removed entirely the provisions for the construction of treatment facilities. The modified permit requires that the Water Company connect its discharges to the Greenwich sanitary sewer by July 31, 1978, thereby completely eliminating any discharge into the Mianus River. The petitioners challenged the validity of the NPDES permit, as modified, by seeking review in this Court on November 24, 1975 pursuant to § 509 of the FWPCA. They assert that the permit is invalid for two reasons: first, that since the compliance date is July 31, 1978, the permit does not comply with the FWPCA’s directive that a permit require the application of the “best practicable control technology” toward the reduction of polluting discharges by July 1, 1977, and second, that since the Greenwich sanitary sewer does, not now exist in the vicinity of the filtration plant, and since only the Town of Greenwich can extend the sewer to that area, the permit essentially requires compliance with an act which is not wholly within the control of the permit-tee Water Company. Although the respondent Commissioner of DEP has defended the validity of the modified permit on the merits, he has also moved to dismiss the petition for review, and has been joined in such motion by the Administrator, on the jurisdictional ground that § 509(b)(1)(F) of FWPCA provides for review in the appropriate Court of Appeals of only the “Administrator’s action . in issuing or denying any permit under section [402]” of that Act, not the issuing or denying of such a permit by a State. (Emphasis supplied.) We agree with the respondents and dismiss the petition without reaching the merits. It is rather clear that jurisdiction in the Court of Appeals to review the issuance, denial or modification of an NPDES permit, if it exists at all, is to be found in § 509 of FWPCA. Cf. Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 288 (2d Cir. 1976). The plain words of that section, however, clearly specify review of only the “Administrator’s action,” the term “Administrator” being defined in § 101(d) as the Administrator of the Environmental Protection Agency. Section 509 leaves unmentioned the review status of permits issued or denied by one other than the Administrator. Because that section explicitly mentions only action of the Administrator and because, as will be discussed infra, the legislative history of § 402 clearly shows that Congress intended that the States have a great deal of autonomy in administering their own permit programs, we see no reason to extend the explicit jurisdictional grant to “action” of anyone other than the Administrator. Where, as here, the NPDES permit was undeniably issued and modified by a State agency pursuant to its own authority under § 402, one is hard pressed without more to find such “Administrator’s action.” In order to fit this case within § 509’s “Administrator’s action” requirement, the petitioners have advanced two theories: (1) that DEP, in acting upon NPDES permits, serves as the Administrator’s agent, thereby rendering the State’s action an action of the Administrator through a delegation of authority, and alternatively, (2) that since the Administrator has the authority to reject or “veto” any particular application made by a polluter to a State for an NPDES permit, his failure to veto the application is his “action” sufficient for the jurisdictional purposes of § 509. We find neither theory persuasive. The delegation of authority theory, although perhaps appealing at first glance, fails upon a more thorough examination of the structure of the NPDES permit programs created under § 402. Subsection (a) of § 402 places with the Administrator the initial authority for administering the permit program under NPDES, but further requires, during an initial transitional period, that he “shall authorize a State, which he determines has the capability of administering a permit program which will carry out the objective of this chapter, to issue permits for discharges into the navigable waters within the jurisdiction of such State.” (Emphasis supplied.) Subsection (b) of § 402 sets forth more specifically the procedures and requirements which a State program must meet in order to qualify for that subsection’s directive that the “Administrator shall approve” such a State’s application to administer its own more permanent permit program. (Emphasis supplied.) Finally, subsection (c) of § 402 directs that the federal permit issuing program shall be suspended in such States where a valid State program continues to operate. Such a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program creates a separate and independent State authority to administer the NPDES pollution controls, in keeping with the stated Congressional purpose “to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution. ...” FWPCA § 101(b). Congress has not created a discretionary power in the Administrator to delegate his own authority to States with sufficient programs; it has clearly directed that the States are to administer the permit system if the Administrator determines that applying States have sufficient programs. Moreover, the Administrator’s determination that a State program does or does not meet the statutory criteria for approval is reviewable in the appropriate Court of Appeals. FWPCA § 509(b)(1)(D). According to the initial comments of the Senate Committee on Public Works, which favorably reported out original Senate Bill No. 2770: The legislation will restore Federal-State balance to the permit system. Talents and capacities of those States whose own programs are superior are to be called upon to administer the permit system within their boundaries. The Administrator is to suspend his activity, insofar as the permit system is concerned, in these States. Senate Report No. 92-414, in 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (compiled for the Senate Comm, on Public Works by the Library of Congress), Ser. No. 93-1, p. 1426 (1973) (hereinafter “Leg.Hist.”) U.S.Code Cong. & Admin.News 1972, pp. 3668, 3675. At various places in the original Senate Report, there is mention of the concept of the Administrator’s “delegation” to the States. Those references, apparently made in passing, however, do not measure up well to more specific statements to the contrary made later in the House Report accompanying its amendments to the Senate Bill. House Report No. 92-911, 1 Leg.Hist. 753, 814, in which the amendments were construed, makes clear that each State’s action would be its own: [SJince permits granted by States under section 402 are not Federal permits — but State permits — the certification procedures [required by section 401] are not applicable. Finally, in recommending adoption of the House amendments, with further minor modification, the Senate Conference Report described the dual permit programs contemplated by those amendments as follows: Provision is made for a State to administer its own permit program in lieu of the Administrator’s program, and the Administrator is required to approve a submitted State program unless he finds that there is not adequate authority to issue the permits in accordance with the requirements of this Act. [emphasis supplied] Senate Conference Report No. 92-1236, 1 Leg.Hist. 322, U.S.Code Cong. & Admin. News 1972, p. 3816. It is quite clear from the committee reports that Congress intended that the States’ programs were to be their own and that it was fully aware of the difference between States’ and Administrator’s permits. To be sure, the FWPCA manifests a Congressional desire that minimum federal effluent standards and limitations be established and uniformly applied throughout the country. Indeed, one of the motivating forces behind the enactment of FWPCA was the fact that prior attempts at control of water pollution had resulted in confusion between State and federal roles and in the ineffective and uneven application of standards among the several States. EPA v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). It does not necessarily follow from that concern, however, that federal involvement, either administrative or judicial, at every stage of the remedial effort is the only manner by which minimum standards can be attained. Minimum standards are attained in the FWPCA by the Administrator’s promulgation of such standards (which the State programs must honor), by his approval of those programs and by his power to review both the performance of the programs and individual applications for State NPDES permits. By the contemplation of minimum federal standards, however, Congress did not intend to relegate the States to the status of enforcement agents for the executive branch of the federal government. To the contrary, it is indisputable that Congress specifically declined to attempt a preemption of the field in the area of water pollution legislation, and as much as invited the States to enact requirements more stringent than the federal standards. FWPCA § 510; EPA v. State Water Resources Control Board, supra, 426 U.S. at 218, 96 S.Ct. at 2031; See also Metropolitan San. Dist. v. United States Steel Corp., 30 Ill.App.3d 360, 332 N.E.2d 426 (1975); State v. Republic Steel Corporation,38 Ohio Misc. 43, 311 N.E.2d 911 (Mun.Ct.1973). A State that has enacted more stringent standards thus could, and presumably would, without violating the FWPCA, issue NPDES permits containing those more stringent requirements. To conclude that a State’s issuance of such an NPDES permit is “Administrator’s action” subject to direct review by this Court, would in some cases result in our being required to review issues involving only a State agency’s application and interpretation of purely State law. We are loath, without more convincing and specific authority than exists here, to read into the FWPCA a Congressional desire to reach such a result, a result which would raise problems going directly to the heart of our federal system. Petitioners’ second attempt to find “Administrator’s action” in the issuance of a State NPDES permit rests upon the Administrator’s authority to review and, if necessary, to veto individual applications for such permits. Subsections (d), (e) and (f) of § 402 set out that authority. Subsection (d) provides that each State operating an approved program shall transmit a copy of each NPDES permit application to the Administrator, that no permit shall issue if the Administrator objects within ninety days of his receipt of the application and that the Administrator may waive his objections to any permit application. Subsections (e) and (f) provide further that by issuing guidelines and regulations, the Administrator may also designate particular categories of pollution sources (“point sources”) for which he will waive both his notice and veto rights. In the instant case the Administrator did not, of course, reject or veto the Water Company’s application, but instead, without comment, allowed DEP to make the modification now in question. In the absence of any indication that the Administrator affirmatively waived his veto power pursuant to §§ 402(e) or 402(f), it appears that he merely allowed the ninety day time period within which he must make objection under § 402(d)(2) to elapse without taking any action. Petitioners contend that the Administrator’s silence is reviewable “action” since it amounts to his tacit approval of the State permit. We do not agree. Just how active a role the Administrator was expected to play in reviewing each particular State permit application is unclear from the statute itself. Section 402(d)(2), of course, gives the Administrator the power to review and reject any particular individual application for a State permit. Yet, seemingly in the same breath, § 402(d)(3) relieves him of any duty to do either. The review power, as taken from the words of the statute, seems to be entirely discretionary. The legislative history of § 402 confirms that view and further shows that Congress intended that the Administrator should, more often than not, take no “action” with respect to proposed State permits. The Senate Public Works Committee Report, supra, commenting on the original Senate bill, foresaw that a valid State program, once approved by the Administrator, should require little day by day supervision with respect to individual permit applications: Although the Administrator is given the authority to review any permit before it is issued by a State, the Committee expects that . . . the Administrator will withhold his review of proposed permits which are not of major significance. If the Administrator finds that a State program is inadequate to mitigate his involvement he should not approve a State program. 2 Leg.Hist. 1489, U.S.Code Cong. & Admin. News 1972, p. 3737. The next several lines of the Senate Report reflects a significant difference between the original Senate bill and the Conference amendments finally enacted. Section 402(d)(2) of the Senate bill provided that “[n]o permit shall issue until the Administrator is satisfied that the conditions to be imposed by the State meet the requirements of this Act.” Consequently, the original version of § 402 contemplated a “permit-by-permit” review by the Administrator over all categories of point sources which he did not exempt by regulation under §§ 402(e) and 402(f). Further, under the original Senate version of §§ 402(c)(2) and 402(c)(3), a State could not issue a permit without the Administrator’s approval unless he specifically waived his right to object within thirty days after receiving notice of the particular permit application involved. Thus, although the Senate hoped that the Administrator would maintain a low profile vis-a-vis “insignificant” State permit applications, it would have nevertheless required his approval for each one. The final version of §§ 402(c)(2) and 402(c)(3) changed the emphasis of the Administrator’s review power dramatically. The requirement that the Administrator approve all permits was replaced with a conditional proscription that no permit shall issue if the Administrator “objects” within ninety days. This change in emphasis first appeared in the House amendments. The House Committee Report reveals the reasoning behind the change as follows: The Committee considered extensively the proposition that all the permits issued by the States ought to be subject to review and possible veto by the Administrator. During the Committee’s hearings, the Governors and other representatives of the States, almost unanimously, stressed the need to put the maximum responsibility for the permit program in the States. They deplored the- duplication and second guessing that could go on if the Administrator could veto the State decisions. The Committee believes that the States ought to have the opportunity to assume the responsibilities that they have requested. If, however, a State fails to carry out its obligations and misuses the permit program, the Administrator is fully authorized under subsection (c)(3) of this section to withdraw his approval of a State program. The Committee has included a provision in subsection (b) that any permit program administered by a State must insure that any other State whose waters may be affected by the issuance of a permit have an opportunity to submit written recommendations with respect to the permit application. If any part of the recommendations are not accepted by the permitting State, the affected State and the Administrator must be notified in writing of its failure to accept such recommendations together with its reasons for so doing. Subsection (d)(2) provides that no permits shall issue if the Administrator within 60 days of his notification objects to the issuance of such permits. The committee has included this procedure to protect States which might otherwise be affected by the issuance of a permit in a second State. House Rep. No. 92-911, 1 Leg.Hist. 814. It is clear, therefore, that the bill was specifically amended to remove the Administrator’s duty to engage in a “permit-by-permit” review of a State’s actions with respect to individual permits. Although the Act retained the Administrator’s general supervisory duty to review the performance of the State programs, Congress clearly intended his role with respect to individual State permits to be passive on the whole. That view of the Administrator’s role prevailed in conference. In discussing the Administrator’s review function during House debate on the Conference Report, Congressman Wright, a House Manager of the bill, stated: If the Administrator, within 90 days of the transmittal date of a. proposed permit by the State, objects in writing to the issuance of the permit . . . the proposed permit shall not issue. This means that if the State proposes to issue an unlawful permit or one which does not meet the guidelines and regulations of this act, the Administrator may stop the issuance of the permit. I must give added emphasis to this point. The managers expect the Administrator to use this authority judiciously; it is their intent that the act be administered in such a manner that the abilities of the States to control their own permit programs will be developed and strengthened. They look for and expect State and local interest, initiative, and personnel to provide a much more effective program than that which would result from control in the regional offices of the Environmental Protection Agency. 1 Leg.Hist. 262. The instant ease demonstrates that the Administrator has assumed the precise role that Congress hoped he would. The record reveals nothing to indicate that the EPA regional office exercised or attempted to exercise any “control” over DEP with respect to the DEP permit modification here. Nor does it indicate that the regional office manifested any approval of the State action. To the contrary, although EPA was aware of the State action, the record shows that the federal agency took no action at all. Such inaction, predicated upon the statute’s express design, can hardly be described as “Administrator’s action . in issuing ... [a] permit” within the ambit of judicial review contemplated by § 509(b)(1)(F). This is not a case where the Administrator has become inextricably involved in the issuance of the State permit. In a case similar to the one at bar, but one in which the plaintiff alleged that a State agency had merely “rubber stamped” an EPA permit recommendation, the District Court for the Northern District of California held that “the mere failure to disapprove a state administrative action cannot be deemed decision-making by a federal body.” Shell Oil Company v. Train, 415 F.Supp. 70, 78 (N.D. Cal. 1976). While we approve of that statement, we have no occasion in this case to comment upon whether or not and to what extent EPA involvement with a State in approving a State permit could rise to the level of “Administrator’s action” reviewable under § 509. Admittedly, had the Administrator exercised his right of review and rejected the Water Company’s permit application, that rejection would clearly be subject to review as “Administrator’s action.” Where the opposite is the case, however, to wit, where a State alone has issued an NPDES permit, no “Administrator’s action” is involved. Accordingly, since § 509 provides for review in this Court of only “Administrator’s action” and since the instant permit modification was made entirely by DEP, not the Administrator, we have no jurisdiction, and the petition for review must be dismissed. . 33 U.S.C. § 1342 (Supp. IV), quoted infra. . 33 U.S.C. § 1369(b)(1)(F) (Supp. IV), quoted infra. . Oct. 18, 1972, Pub.L. 92-500, 33 U.S.C. § 1251 (Supp. IV) et seq. . Although not essential for disposition of the instant petition, a more detailed description of the FWPCA’s increasingly restrictive limitations and standards is contained in this Court’s recent opinion in Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976). Even more recently, the Supreme Court has reviewed both the history of the FWPCA and the delicate state-federal balance struck in NPDES in EPA v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). . 33 U.S.C. §§ 1342(a)(5) (Supp. IV) and 1342(b) (Supp. IV), quoted infra. . The copy of that draft order which has been supplied in the record on review is unsigned and contains blank spaces where certain of the key compliance dates presumably belong. It therefore appears from the record that this particular draft was never finalized as an NPDES permit. . The parties indicate in their briefs (Pet. br., p. 4; DEP br., p. 2) that the March 10, 1975 order was the first NPDES permit actually issued to the Water Company by DEP. See supra, n. 6. . Connecticut General Statutes § 25-54a, et seq. . Connecticut General Statutes § 25-54o. . See FWPCA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) (Supp. IV). . Section 509(b) of FWPCA, 33 U.S.C. § 1369(b) (Supp. IV), provides as follows: (b)(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. . 33 U.S.C. § 1251(d) (Supp. IV) provides in pertinent part as follows: (d) Except as otherwise expressly provided in this chapter, the Administrator of the Environmental Protection Agency (hereinafter in this chapter called “Administrator”) shall administer this chapter. . Subsection (a) of FWPCA § 402, 33 U.S.C. § 1342(a) (Supp. IV), provides as follows: (a) Permits for discharge of pollutants. (1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. (3) The permit program of the Administrator under paragraph (1) of this subsection, and permits issued thereunder, shall be subject to the same terms, conditions, and requirements as apply to a State permit program and permits issued thereunder under subsection (b) of this section. (4) All permits for discharges into the navigable waters issued pursuant to section 407 of this title, shall be deemed to be permits issued under this title, and permits issued under this title shall be deemed to be permits issued under section 407 of this title, and shall continue in force and effect for their term unless revoked, modified, or suspended in accordance with the provisions of this chapter. (5) No permit for a discharge into the navigable waters shall be issued under section 407 of this title after October 18, 1972. Each application for a permit under section 407 of this title, pending on October 18, 1972, shall be deemed to be an application for a permit under this section. The Administrator shall authorize a State, which he determines has the capability of administering a permit program which will carry out the objective of this chapter, to issue permits for discharges into the navigable waters within the jurisdiction of such State. The Administrator may exercise the authority granted him by the preceding sentence only during the period which begins on October 18, 1972, and ends either on the ninetieth day after the date of the first promulgation of guidelines required by section 1314(h)(2) of this title, or the date of approval by the Administrator of a permit program for such State under subsection (b) of this section, whichever date first occurs, and no such authorization to a State shall extend beyond the last day of such period. Each such permit shall be subject to such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. No such permit shall issue if the Administrator objects to such issuance. . Subsection (b) of FWPCA § 402, 33 U.S.C. § 1342(b) (Supp. IV), provides as follows: (b) State permit programs. At any time after the promulgation of the guidelines required by subsection (h)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each such submitted program unless he determines that adequate authority does not exist: (1) To issue permits which— (A) apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 1316, 1317, and 1343 of this title; (B) are for fixed terms not exceeding five years; and (C) can be terminated or modified for cause including, but not limited to, the following: (1) violation of any condition of the permit; (ii) obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts; (iii) change in any condition that requires either a temporary or permanent reduction or elimination- of the permitted discharge; (D) control the disposal of pollutants into wells; (2) (A) To issue permits which apply, and insure compliance with, all applicable requirements of section 1318 of this title, or (B) To inspect, monitor, enter, and require reports to at least the same extent as required in section 1318 of this title; (3) To insure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application; (4) To insure that the Administrator receives notice of each application (including a copy thereof) for a permit; (5) To insure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit application and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and the Administrator) in writing of its failure to so accept such recommendations together with its reasons for so doing; (6) To insure that no permit will be issued if, in the judgment of the Secretary of the Army acting through the Chief of Engineers, after consultation with the Secretary of the department in which the Coast Guard is operating anchorage and navigation of any of the navigable waters would be substantially impaired thereby; (7) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement; (8) To insure that any permit for a discharge from a publicly owned treatment works includes conditions to require adequate notice to the permitting agency of (A) new introductions into such works of pollutants from any source which would be a new source as defined in section 1316 of this title if such source were discharging pollutants, (B) new introductions of pollutants into such works from a source which would be subject to section 1311 of this title if it were discharging such pollutants, or (C) a substantial change in volume or character of pollutants being introduced into such works by a source introducing pollutants into such works at the time of issuance of the permit. Such notice shall include information on the quality and quantity of effluent to be introduced into such treatment works and any anticipated impact of such change in the quantity or quality of effluent to be discharged from such publicly owned treatment works; and (9) To insure that any industrial user of any publicly owned treatment works will comply with sections 1284(b), 1317, and 1318 of this title. . Subsection (c) of FWPCA § 402, 33 U.S.C. § 1342(c) (Supp. IV), provides as follows: (c) Suspension of federal program upon submission of State program; withdrawal of approval of State program. (1) Not later than ninety days after the date on which a State has submitted a program (or revision thereof) pursuant to subsection (b) of this section, the Administrator shall suspend the issuance of permits under subsection (a) of this section as to those navigable waters subject to such program unless he determines that the State permit program does not meet the requirements of subsection (b) of this section or does not conform to the guidelines issued under section 1314(h)(2) of this title. If the Administrator so determines, he shall notify the State of any revisions or modifications necessary to conform to such requirements or guidelines. (2) Any State permit program under this section shall at all times be in accordance with this section and guidelines promulgated pursuant to section 1314(h)(2) of this title. (3) Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. . 33 U.S.C. § 1251(b) (Supp. IV). . 33 U.S.C. § 1369(b)(1)(D) (Supp. IV). . The Conference Report recognized that the original Senate bill provided for only a permissive delegation of authority to the States during the initial interim period prior to the Administrator’s promulgation of effluent guidelines and standards. Senate Conference Rep. No. 92-1236, 1 Leg.Hist. 321-23. The House amendments to the' Senate bill, which were ultimately adopted with some further amendments in § 402, provided for mandatory authorization of State programs during that interim period. Id. . See infra pp. 907-910. . 33 U.S.C. § 1370 (Supp. IV). . FWPCA §§ 402(d), 402(e) and 402(f), 33 U.S.C. §§ 1342(d) (Supp. IV), 1342(e) (Supp. IV) and 1342(f) (Supp. IV), provide as follows: (d) Notification of Administrator. (1) Each State shall transmit to the Administrator a copy of each permit application received by such State and provide notice to the Administrator of every action related to the consideration of such permit application, including each permit proposed to be issued by such State. (2) No permit shall issue (A) if the Administrator within ninety days of the date of his notification under subsection (b)(5) of this section objects in writing to the issuance of such permit, or (B) if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this chapter. (3) The Administrator may, as to any permit application, waive paragraph (2) of this subsection. (e) Waiver of notification requirement. In accordance with guidelines promulgated pursuant to subsection (h)(2) of section 1314 of this title, the Administrator is authorized to waive the requirements of subsection (d) of this section at the time he approves a program pursuant to subsection (b) of this section for any category (including any class, type, or size within such category) of point sources within the State submitting such program. (f) Point source categories. The Administrator shall promulgate regulations establishing categories of point sources which he determines shall not be subject to the requirements of subsection (d) of this section in any State with a program approved pursuant to subsection (b) of this section. The Administrator may distinguish among classes, types, and sizes within any category of point sources. . The letter from the Administrator to the State of Connecticut approving its permit program contained no waiver of this category. Similarly, the Administrator has apparently not included filtration plants in his regulations waiving the NPDES permit requirements for certain categories of point sources. See 40 C.F.R. § 124.11. There is an indication, in the form of two internal Environmental Protection Agency (“EPA”) memoranda, that EPA staff members reviewed the original March 10, 1975 NPDES permit, but there is nothing in the EPA file submitted as part of the record on review to indicate that EPA even considered the August 26, 1975 modification challenged here. At oral argument EPA counsel admitted that the Administrator in fact does not object to the modification but that admission is not tantamount to an admission that the Administrator affirmatively approved the modified permit at the time it was under consideration by the State. . The following passage explains the Administrator’s review function under the original bill (2 Leg.Hist. 1489-90, U.S.Code Cong. & Admin. News 1972, p. 3737): The Administrator has authority to establish, by regulation, those classes and categories of point sources for which he will not exercise permit-by-permit review in any State that has received delegated authority. Certain classes and categories involving individual discharges (such as small municipalities) may be more appropriately subject to State review. If the Administrator approves a State program he should waive his right to review such permits in the interest of efficient program management. * * * For te remaining classes of discharge source, the Administrator retains retains authority to exercise final review and approval over the issuance of a permit by a State. The bill, in an effort to insure expeditious implementation of issuance of permit and remove any uncertainty, requires that the Administrator must notify the State within thirty days of the receipt of any application for permit if he desires to waive authority to review and approve. If the Administrator does not so notify within the time required, he retains his authority and the State cannot issue the permit without agreement from the Administrator. . Neither FWPCA nor its legislative history provide any clear direction to the Administrator as to when he should or should not reject any particular State permit that he finds does not conform with the guidelines and regulations under the Act. It would appear that the option to take no action, even when a permit does not conform, is committed to the Administrator’s almost unfettered discretion. See Greater New York Hospital Assoc, v. Matthews, 536 F.2d 494 (2d Cir. 1976). Since we have concluded that the Administrator’s inaction in this case is insufficient to confer jurisdiction upon this Court, we do not and cannot decide whether or not such inaction in itself was improper. . The Court of Appeals for the Ninth Circuit, in companion litigation initiated by Shell Oil Company in that Court, sought to challenge the conditions imposed upon it in an NPDES permit issued by the State of California. Shell Oil Company v. Train, Dkt. No. 75-2070 (9th Cir., Sept. 22, 1975). In a brief order the Court granted the Administrator’s motion to dismiss the petition for review as follows: [T]he petition for review is dismissed . on the ground that the . . . decision by the California Regional Water Quality Control Board was not an act by the Administrator of the Environmental Protection Agency such as would give this Court jurisdiction under Section 509(b)(1) of the Federal Water Pollution Control Act .... . The Administrator has so conceded. Resp. br. p. 8.

Reserve Mining Co. v. Environmental Protection Agency

BRIGHT, Circuit Judge. The United States, the States of Michigan, Wisconsin, and Minnesota, and several environmental groups seek an injunction ordering Reserve Mining Company to cease discharging wastes from its iron ore processing plant in Silver Bay, Minnesota, into the ambient air of Silver Bay and the waters of Lake Superior. On April 20, 1974, the district court granted the requested relief and ordered that the discharges immediately cease, thus effectively closing the plant. United States v. Reserve Mining Co., 380 F.Supp. 11 (D.Minn.1974). Reserve Mining Company appealed that order and we stayed the injunction pending resolution of the merits of the appeal. Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974). We affirm the injunction but direct modification of its terms. As to other issues brought before us by appeals during the course of this complex litigation, we affirm in part and reverse in part. SUMMARY OF DECISION In this lengthy opinion, we undertake a comprehensive analysis of the relevant scientific and medical testimony and evaluate the claims of the plaintiffs that Reserve’s conduct violates express provisions of federal law as well as state laws and regulations and is a public nuisance. We summarize our key rulings as follows: 1) The United States and the other plaintiffs have established that Reserve’s discharges into the air and water give rise to a potential threat to the public health. The risk to public health is of sufficient gravity to be legally cognizable and calls for an abatement order on reasonable terms. 2) The United States and Minnesota have shown that Reserve’s discharges violate federal and state laws and state pollution control regulations, also justifying injunctive relief on equitable terms. 3) No harm to the public health has been shown to have occurred to this date and the danger to health is not imminent. The evidence calls for preventive and precautionary steps. No reason exists which requires that Reserve terminate its operations at once. 4) Reserve, with its parent companies Armco Steel and Republic Steel, is entitled to a reasonable opportunity and a reasonable time period to convert its Minnesota taconite operations to on-land disposal of taconite tailings and to restrict air emissions at its Silver Bay plant, or to close its existing Minnesota taconite-pelletizing operations. The parties are required to expedite consideration and resolution of these alternatives. 5) The evidence suggests that the threat to public health from the air emissions is more significant than that from the water discharge. Consequently, Reserve must take reasonable immediate steps to reduce its air emissions. I. INTRODUCTION A. Summary of Controversy. In 1947, Reserve Mining Company (Reserve), then contemplating a venture in which it would mine low-grade iron ore (“taconite”) present in Minnesota’s Mesabi Iron Range and process the ore into iron-rich pellets at facilities bordering on Lake Superior, received a permit from the State of Minnesota to discharge the wastes (called “tailings”) from its processing operations into the lake. Reserve commenced the processing of taconite ore in Silver Bay, Minnesota, in 1955, and that operation continues today. Taconite mined near Babbitt, Minnesota, is shipped by rail some 47 miles to the Silver Bay “beneficiating” plant where it is concentrated into pellets containing some 65 percent iron ore. The process involves crushing the taconite into fine granules, separating out the metallic iron with huge magnets, and flushing the residual tailings into Lake Superior. The tailings enter the lake as a slurry of approximately 1.5 percent solids. The slurry acts as a heavy density current bearing the bulk of the suspended particles to the lake bottom. In this manner, approximately 67,000 tons of tailings are discharged daily. The states and the United States commenced efforts to procure abatement of these discharges as early as mid-1969. These efforts, however, produced only an unsuccessful series of administrative conferences and unsuccessful state court proceedings. The instant litigation commenced on February 2, 1972, when the United States — joined eventually by the States of Minnesota, Wisconsin, and Michigan and by various environmental groups — filed a complaint alleging that Reserve’s discharge of tailings into Lake Superior violated § 407 of the Rivers and Harbors Act of 1899 [33 U.S.C. § 401 et seq. (1970)], § 1160 of the pre-1972 Federal Water Pollution Control Act (FWPCA) [33 U.S.C. § 1151 et seq. (1970)] and the federal common law of public nuisance. Until June 8, 1973, the case was essentially a water pollution abatement case, but on that date the focus of the controversy shifted to the public health impact of the tailings discharge and Reserve’s emissions into the ambient air. Arguing the health issue in the district court, plaintiffs maintained that the taconite ore mined by Reserve contained an as-bestiform variety of the amphibole mineral cummingtonite-grunerite, and that the processing of the ore resulted in the discharge into the air and water of mineral fibers substantially identical and in some instances identical to amosite asbestos. This contention raised an immediate health issue, since inhalation of asbestos at occupational levels of exposure is associated with an increased incidence of various forms of cancer. Although it is undisputed that Reserve discharges significant amounts of waste tailings into Lake Superior and dust into the Silver Bay air, the parties vigorously contest the precise physical properties of the discharges, their biological effects, and, with respect to the water discharge, the issue of whether a significant proportion of the discharge, instead of flowing to the lake bottom with the density current, disperses throughout the lake. Plaintiffs attempted to show that a substantial amount of the fibers discharged by Reserve could be classified as amosite asbestos, and that these fibers could be traced in the ambient air of Silver Bay and surrounding communities and in the drinking water of Duluth and other communities drawing water from the lake. Reserve countered that its cummington-ite-grunerite does not have a fibrous form and is otherwise distinguishable from amosite asbestos. It further maintained that the discharges do not pose any cognizable hazard to health and that, in any event, with respect to the discharge into water, the tailings largely settle to the bottom of the lake in the “great trough” area as initially planned. The evidence presented on these points was extensive and complex. Hearings on a motion for a preliminary injunction were consolidated with the trial on the merits and during the nine-month period of 139 days of trial, the trial court heard more than 100 witnesses and received over 1,600 exhibits. The parties introduced testimony comparing the mineralogy of Reserve’s cummingtonite-gruner-ite with amosite asbestos, such testimony based on electron microscope analysis of morphology, x-ray and electron diffraction analysis of crystal structure, laboratory analysis of chemical composition, and other identification techniques. As for the possible dispersion of the tailings throughout Lake Superior, witnesses disputed whether Reserve’s discharges provided the sole source of cummingtonite-grunerite in the lake and whether the presence of the mineral could thus be used as a “tracer” for Reserve’s discharge. In an effort to assess the health hazard, the parties presented extensive expert scientific and medical testimony, and the court itself appointed certain expert witnesses, who assumed the task of assisting the court in the evaluation of scientific testimony and supervising court-sponsored studies to measure the levels of asbestos fibers in the air near Silver Bay, in Lake Superior water, and in the tissues of deceased Duluth residents. On April 20, 1974, the district court entered an order closing Reserve’s Silver Bay facility. In an abbreviated memorandum opinion, the court held that Reserve’s water discharge violated federal water pollution laws and that its air emissions violated state air pollution regulations, and that both the air and water discharges constituted common law nuisances. The court’s decision, in part, rested on these core findings: The discharge into the air substantially endangers the health of the people of Silver Bay and surrounding communities as far away as the eastern shore in Wisconsin. The discharge into the water substantially endangers the health of people who procure their drinking water from the western arm of Lake Superi- or including the communities of Beaver Bay, Two Harbors, Cloquet, Duluth [Minnesota], and Superior, Wisconsin. [380 F.Supp. at 16.] The district court issued an extensive supplemental memorandum on May 11, 1974, expanding on its earlier findings of fact and conclusions of law. In proceedings detailed in the following section of this opinion, a panel of this court stayed the injunction and subsequently requested the district court to fully dispose of the litigation and enter final judgment. This court, sitting en banc, heard the merits of several consolidated appeals at the December 1974 session. We have also taken under consideration other appeals which have been subsequently submitted to us on briefs, but without oral argument. Our disposition follows. B. Discussion of Rulings by the District Court and Previous Proceedings in this Court. In its memorandum opinions of April 20, and May 11, ordering Reserve to cease immediately its discharges into the air and water, the district court predicated its determinations on several counts. On the discharge into water, the court found a violation of several sections of the Minnesota water quality standards. These standards, promulgated pursuant to § 1160(c)(5) of the FWPCA and subsequently approved by the federal government, are denominated as Minnesota Water Pollution Control Regulation 15 (WPC 15). The district court found the following parts of WPC 15 violated: WPC 15(a)(4), providing that waters of naturally high quality shall not be degraded; WPC 15(c)(2), a broad provision prohibiting the discharge of wastes which create nuisance conditions or cause “offensive or harmful effects;” WPC 15(c)(6), limiting the allowable suspended solid content of effluent discharges to 30 milligrams per liter; WPC 15(d)(1), controlling the discharge of substances that make certain waters unfit to drink even after chemical treatment; and WPC 26, a general effluent standard for Lake Superior incorporating the standards of WPC 15. Further, the court found that the discharge into Lake Superior endangered the health and welfare of persons in Minnesota, Wisconsin, and Michigan and therefore was subject to abatement pursuant to §§ 1160(c)(5) and (g)(1) of the FWPCA. Finally, the court found that the endangerment to health also constituted both a federal common law nuisance and a nuisance under the applicable laws of Minnesota, Wisconsin, and Michigan. 380 F.Supp. at 55. As for the air emissions, the court also found liability under both federal and state common law nuisance. Additionally, the court cited Reserve for the violation of several Minnesota air pollution control regulations: APC 1, setting primary and secondary air standards; APC 5 and 6, controlling particulate emissions; and APC 17, setting an emission standard for asbestos. 380 F.Supp. at 55-56. The trial court based its closure decision on two independent determinations. First, as noted above, the court had concluded that the discharges “substantially endanger” the exposed populations. Second, the court had concluded that, although a method of abatement providing for an alternate means of disposal of wastes with some turn-around time represented a desirable middle course in this litigation, Reserve had demonstrated such intransigence on the issue of abating its water discharge as to render any such middle course impossible. The court thus believed it had no alternative but to immediately enjoin the discharges: Defendants have the economic and engineering capability to carry out an on land disposal system that satisfies the health and environmental considerations raised. For reasons unknown to this Court they have chosen not to implement such a plan. In essence they have decided to continue exposing thousands daily to a substantial health risk in order to maintain the current profitability of the present operation and delay the capital outlay (with its concomitant profit) needed to institute modifications. The Court has no other alternative but to order an immediate halt to the discharge which threatens the lives of thousands. In that defendants have no plan to make the necessary modifications, there is no reason to delay any further the issuance of the injunction. [380 .F.Supp. at 20.] Reserve promptly appealed the injunction order of the district court and we issued a temporary stay of that order on April 22, 1974, and scheduled a hearing on Reserve’s application for a stay of injunction pending its appeal. That hearing was held on May 15, 1974, before a panel of this court consisting of Judges Bright, Ross, and Webster, and on June 4, 1974, the court issued an opinion granting Reserve a 70-day stay of the injunction. Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974). The court conditioned the stay upon Reserve taking prompt steps to abate its air and water discharges, and provided for furthér proceedings to review whether Reserve had proceeded with the good faith preparation and implementation of an acceptable plan. The State of Minnesota applied to the Supreme Court to vacate this stay. The Court denied Minnesota this relief in an order entered July 9, 1974. Minnesota v. Reserve Mining Co., 418 U.S. 911, 94 S.Ct. 3203, 41 L.Ed.2d 1156 (1974). Meanwhile, in accordance with the stay order, the district court evaluated compliance with our order that Reserve proceed in good faith to present a plan of abatement. In a memorandum opinion filed August 3, 1974, the district court, taking cognizance of the opposition of the State of Minnesota to Reserve’s proffered plan (the so-called Palisades Plan), rejected Reserve’s proposal as unreasonable and recommended against any further stay during the pendency of this litigation. Also, pursuant to our earlier request for advice on the status of unresolved claims, the district court indicated that it had “severed for later resolution the issue of the biological effect of Reserve’s discharge on the Lake itself” and that several other issues remained under advisement. 380 F.Supp. at 91 n. 6. Judges Bright and Ross convened a prehearing conference under Fed.R. App.P. 33 to inquire into consolidation, clarification, and simplification of issues pending an appeal and to advise this court of the time necessary to submit unresolved issues pending before the district court. The cause was then remanded with a request that the district court expedite disposition of the unresolved issues, with this court retaining jurisdiction over the pending appeal of the district court injunction. Additionally, this court, on its own motion, scheduled a hearing before a panel consisting of Judges Bright, Ross, and Webster to consider the recommendations of the district court against continuing the stay order pending appeal. Following hearings, this court entered an order continuing the stay, concluding that: 1) The representations of counsel at the hearing on August 27, 1974, satisfy us that significant progress has been achieved by the parties in seeking agreement for an on-land disposal site and method for abatement of Reserve’s discharge into Lake Superior. These negotiations are continuing and will not impede the processing of the pending appeal upon the merits, [and] 2) No substantial reason has been advanced why the stay order should not be continued pending such appeal other than the argument of imminent health hazard, which this court, for purposes of the stay pending appeal, has already determined adversely to appellees. [Reserve Mining Co. v. United States, No. 74-1291 (8th Cir., Aug. 28, 1974),] Minnesota and the United States applied to the Supreme Court for relief from this further stay order. The Court denied the applications, with Mr. Justice Douglas dissenting. Minnesota v. Reserve Mining Co., 419 U.S. 802, 95 S.Ct. 287, 42 L.Ed.2d 33 (1974). On October 18, 1974, the district court issued an unpublished memorandum resolving certain other issues in the case and, noting that there was no just reason for delay, directing the entry of final judgment on all claims decided to date. See Fed.R.Civ.P. 54(b). The district court made the following additional rulings: 1) that Reserve’s discharge into the water constitutes a violation of the Refuse Act, 33 U.S.C. § 407; 2) that Reserve’s counterclaims, alleging that interference with its present modes of discharge as sanctioned by permits amounts to a deprivation of property and an impairment of contractual rights, should be. dismissed; 3) that Reserve’s air emissions violate Minnesota air pollution control regulation (APC) 3 and Minn.Stat.Ann. § 116.081(1), which require that permits be obtained for the operation of certain emission facilities; 4) that Reserve’s discharge of wastes into the Dunka and Partridge Rivers of Minnesota violates Minn.Stat.Ann. § 115.07(1), which requires a permit for the operation of a disposal system; 5) that Minn.Stat.Ann. § 115.07(1) is also violated by Reserve’s discharge of wastes from its pilot plant into Lake Superior without a permit; 6) that the evidence is, insufficient to justify liability under Minn.Stat.Ann. § 105.41, which makes unlawful the appropriation of state water without a permit; and 7) that the State of Wisconsin could not assert the state’s “public trust doctrine” as an affirmative cause of action against Reserve’s discharge into Lake Superior. Finally, the court left certain matters undecided, stating: The question of fines and penalties, the question of sanctions for failure to make discovery, and the question of liability of defendants for the water filtration systems that may be installed in Duluth, Minnesota, and Superior, Wisconsin, cannot be decided at this time. [Order of Oct. 18, 1974, at 19.] This final order has produced several additional appeals. We now have under submission the following: No. 73 — 1239: Reserve Mining Co. v. Environmental Protection Agency, in which Reserve urges that WPC 15 is arbitrary and unreasonable and challenges the failure of the Administrator of the EPA to require its revision. No. 74-1291: Reserve Mining Co. v. United States, in which Reserve seeks to vacate the April 20, 1974, order enjoining its discharges into the air and water. No. 74 — 1466: United States v. Reserve Mining Co., in which the United States appeals from the district court’s order (April 19, 1974) directing that the Corps of Engineers of the United States provide filtered water at government expense to certain Minnesota communities located on the North Shore of Lake Superior. No. 74-1816: Reserve Mining Co. v. United States, in which Reserve appeals from the most recent judgment entered October 18, 1974. No. 74-1977: State of Wisconsin v. Reserve Mining Co., in which appellant-Wisconsin contests the district court’s determination that the Wisconsin public trust doctrine does not provide an affirmative cause of action against Reserve’s discharge into Lake Superior. No. 75-1003: . Minnesota Environmental Law Institute v. United States, in which various environmental plaintiffs contest the district court’s decision to “sever” the issue of whether Reserve’s discharge constitutes biological pollution of Lake Superior. No. 75-1005: State of Michigan v. Reserve Mining Co., in which appellant-Michigan contests the district court’s decision to “sever” the issue of whether Reserve’s discharge constitutes biological pollution of Lake Superior. During oral arguments and by written submissions, Reserve has advised us that it no longer asks Minnesota to accept its plan to dispose taconite tailings at the Palisades location, see discussion at p. 504 supra. Reserve has now submitted a second proposal to Minnesota for an on-land disposal site in which it proposes to spend approximately $243,-000,000 in order to end its discharge of tailings into Lake Superior and curtail its emission of contaminants into the air. This proposed site, which Minnesota has under consideration, is located approximately seven miles inland from the Silver Bay facility, and is referred to as Milepost 7, or Lax Lake site. II. HEALTH ISSUE The initial, crucial question for our evaluation and resolution focuses upon the alleged hazard to public health attributable to Reserve’s discharges into the air and water. We first considered this issue on Reserve’s application for a stay of the district court’s injunction pending a determination of the merits of its appeal. We noted the usual formulation of the applicable standards to be met by the party seeking a stay. One of those standards addresses the likelihood of success by the moving party on the merits of the appeal. In applying this standard we made a preliminary assessment of the merits of Reserve’s appeal from the trial court’s injunction order. We noted that the “rather drastic remedy ordered by the district court * * * was a response to the finding of a substantial danger to the public health,” and that our preliminary assessment of whether such a substantial danger was presented “should control our action as to- whether to grant or deny a stay.” 498 F.2d at 1076-1077. In this preliminary review, we did not view the evidence as supporting a finding of substantial danger.' We noted numerous uncertainties in plaintiffs’ theory of harm which controlled our assessment, particularly the uncertainty as to present levels of exposure and the difficulty in attempting to quantify those uncertain levels in terms of a demonstrable health hazard. As we stated then, u * * *' it is not known what the level of fiber exposure is, other than that it is relatively low, and it is not known what level of exposure is safe or unsafe.” 498 F.2d at 1082. In confirmation of our view, we noted the opinion of Dr. Arnold Brown, the principal court-appointed expert, that no adverse health consequences could be scientifically predicted on the basis of existing medical knowledge. Additionally, we noted the district court’s conclusion that there is “ ‘ * * insufficient knowledge upon which to base an opinion as to the magnitude of the risks associated with this exposure.’ ” 498 F.2d at 1083. We thought one proposition evident: [Although Reserve’s discharges represent a possible medical danger, they have not in this case been proven to amount to a health hazard. The discharges may or may not result in detrimental health effects, but, for the present, that is simply unknown. [Id.] On the basis of the foregoing we forecast that Reserve would likely prevail on the merits of the health issue. We limited this forecast to the single issue before us whether Reserve’s plant should be closed immediately because of a “substantial danger” to health: While not called upon at this stage to reach any final conclusion, our review suggests that this evidence does not support a finding of substantial danger and that, indeed, the testimony indicates that such a finding should not be made. In this regard, we conclude that Reserve appears likely to succeed on the merits of its appeal on the health issue. 498 F.2d at 1077-1078. (Emphasis added). We reached no preliminary decision on whether the facts justified a less stringent abatement order. As will be evident from the discussion that follows, we adhere to our preliminary assessment that the evidence is insufficient to support the kind of demonstrable danger to the public health that would justify the immediate closing of Reserve’s operations. We now address the basic question of whether the discharges pose any risk to public health and, if so, whether the risk is one which is legally cognizable. This inquiry demands separate attention to the discharge into the air of Silver Bay and the discharge into Lake Superior. A. The Discharge Into Air. As we noted in our stay opinion, much of the scientific knowledge regarding asbestos disease pathology derives from epidemiological studies of asbestos workers occupationally exposed to and inhaling high levels of asbestos dust. Studies of workers naturally exposed to asbestos dust have shown “excess” cancer deaths and a significant incidence of asbestosis. The principal excess cancers are cancer of the lung, the pleura (mesothelioma) and gastrointestinal tract (“gi” cancer). Studies conducted by Dr. Irving Seli-koff plaintiffs’ principal medical witness, illustrated these disease effects. Dr. Selikoff investigated the disease experience of asbestos insulation workers in the New York-New Jersey area, asbestos insulation workers nationwide, and workers in a New Jersey plant manufacturing amosite asbestos. Generally, all three groups showed excess cancer deaths among the exposed populations, as well as a significant incidence of asbestosis. With respect to cancer generally, three to four times the expected number of deaths occurred; with respect to lung cancer in particular, five to eight times the expected number; and with respect to gastrointestinal cancer, two to three times that expected. Dr. Selikoff described the increase of gastrointestinal cancer as “modest.” [A.10:286 — 287.] Several principles of asbestos-related disease pathology emerge from these occupational studies. One principle relates to the so-called 20-year rule, meaning that, there is a latent period of cancer development of at least 20 years. [A.10:284-285.] Another basic principle is the importance of initial exposure, demonstrated by significant increases in the incidence of cancer even among asbestos manufacturing workers employed for less than three months (although the incidence of disease does increase upon longer exposure). [A.10:279-280.] Finally, these studies indicate that threshold values and dose response relationships, although probably operative with respect to asbestos-induced cancer, are not quantifiable on the basis of existing data. [A.10:280, 317-19.] Additionally, some studies implicate asbestos as a possible pathogenic agent in circumstances of exposure less severe than occupational levels. For example, several studies indicate that mesothelio-ma, a rare but particularly lethal cancer frequently associated with asbestos exposure, has been found in persons experiencing a low level of asbestos exposure. Although Dr. Selikoff acknowledged that these studies of lower-level exposure involve certain methodological difficulties and rest “on much less firm ground” than the occupational studies, he expressed the opinion that they should be considered in the assessment of risks posed by an asbestos discharge. At issue in the present case is the similarity of the circumstances of Reserve’s discharge into the air to those circumstances known to result in asbestos-related disease. This inquiry may be divided into two stages: first, circumstances relating to the nature of the discharge and, second, circumstances relating to the level of the discharge (and resulting level of exposure). 1. The Nature of the Discharge. The comparability of the nature of Reserve’s discharge to the nature of the discharge in known disease situations raises two principal questions. The first is whether the discharged fibers are identical or substantially identical to fibers known to cause disease; the second is whether the length of the fibers discharged is a relevant factor in assessing pathogenic effect. The district court found that Reserve’s discharge includes known pathogenic fibers and that a lower risk to health could not be assigned to this discharge for reasons of fiber length. On the first question — the issue of the identity of the fibers — the argument focuses on whether the ore mined by Reserve contains (and yields wastes during processing consistent with) amosite asbestos. The inquiry is critical because studies demonstrate that amosite, at least in occupational settings, may serve as a carcinogenic (cancer-producing) agent. A principal dispute concerns the precise composition of the mineral cum-mingtonite-grunerite found in Reserve’s taconite ore: Reserve maintains that the cummingtonite-grunerite present in its Peter Mitchell Mine at Babbitt is not asbestiform and is not chemically consistent with amosite asbestos; plaintiffs argue that much of the cummingtonite-grunerite mined by Reserve is substantially identical to amosite asbestos. As a general scientific proposition, it is clear that cummingtonite-grunerite embraces a range of chemistries, including the chemistry of amosite asbestos. The mineral also embraces a range of morphologies, from asbestiform, needle-like fibers to block-shaped, crystal aggregates. The crucial factual determination is, thus, whether the particular cum-mingtonite-grunerite mined by Reserve contains asbestiform fibers consistent with the properties of amosite asbestos. The trial court heard extensive evidence as to the chemistry, crystallography and morphology of the cummington-ite-grunerite present in the mined ore. This evidence demonstrated that, at the level of the individual fiber, a portion of Reserve’s cummingtonite-grunerite cannot be meaningfully distinguished from amosite asbestos. Reserve attempted to rebut this testimony by showing that the gross morphology of the two minerals differed and that characteristics of the two minerals varied when considered in crystal aggregations. Since, according to the opinions of some experts, the individual fiber probably serves as a carcinogenic agent, the district court viewed the variations in mineralogy as irrelevant and determined that Reserve discharges fibers substantially identical and in some instances identical to fibers of amosite asbestos. The second question, that of fiber length, reflects a current dispute among scientists as to whether “short” fibers (i.e., fibers less than five microns in length) have any pathogenic effect. Most of the fibers detected in Reserve’s discharges may be termed “short.” The evidence adduced at trial included conflicting scientific studies and diverse opinions on this question. Several Reserve witnesses testified concerning animal studies which seem to demonstrate that short fibers are nontumorigenic. Plaintiffs offered opposing evidence based on contrary studies. Dr. Brown noted his general criticism of the studies on fiber size, stating that the researchers typically did not use electron microscopy to properly “size” the fibers, and thus it cannot be said that the animals are in fact being exposed to only short or only long fibers. [A.23:338-40.] Presented with this conflicting and uncertain evidence from animal experimentation, and the fact that there are no human epidemiological studies bearing on the issue, the district court concluded that short fibers could not be assigned a lower relative risk than long fibers. This conclusion comports with the uncertain state of scientific knowledge. Furthermore, Dr. Brown and the National Academy of Sciences reached the same conclusion. 2. The Level of Exposure. The second major step in the inquiry of the health aspects of Reserve’s air emissions is an assessment of the amount of the discharge and the resulting level of exposure. Two principal issues are raised: first, what in fact is the level of exposure; second, does that level present a cognizable risk to health? The district court found the level “significant” and comparable to the levels associated with disease in nonoccupational contexts. 380 F.Supp. at 48. The first issue was addressed at length in our stay opinion. We noted there the great difficulties in attempted fiber counts and the uncertainties in measurement which necessarily resulted. 498 F.2d at 1079-1080. Commenting on these difficulties, Dr. Brown stated that the fiber counts of the air and water samples could establish only the presence of fibers and not any particular amount, i. e., such a count establishes only a qualitative, and not a quantitative, proposition. The district court recognized these difficulties in counting fibers and observed that “[t]he most that can be gained from the Court [ordered] áir study is the very roughest approximation of fiber levels.” 380 F.Supp. at 49. A court-appointed witness, Dr. William F. Taylor, made the most sophisticated attempt to use the fiber counts in a quantitative manner. By taking the average fiber count of five testing sites in Silver Bay, Dr. Taylor concluded that the burden of fibers in the air of Silver Bay exceeded that present in St. Paul, Minnesota, (used as a control) by a margin which could not be attributed to chance. [A.23:117.] The experts indicated that the counting of fibers represents a scientifically perilous undertaking, and that any particular count can only suggest the actual fiber concentration which may be present. Nevertheless, Dr. Taylor’s computation indicating some excess of asbes-tiform fibers in the air of Silver Bay over that of the control city of St. Paul appears statistically significant and cannot be disregarded. Thus, as we indicated in the stay opinion and as the district court concluded, while the actual level of fibers in the air of Silver Bay is essentially unknown, it may be said that fibers are present at levels significantly higher than levels found in another Minnesota community removed from this air contamination. Given the presence of excess fibers, we must now assess the effects of this exposure on the public. We note first, as we did in the stay opinion, that the exposure here cannot be equated with the factory exposures which have been clearly linked to excess cancers and asbestosis. Our inquiry, however, does not end there. Asbestos-related disease, as noted earlier, has been associated with exposure levels considerably less than normal occupational exposure. The studies indicating that mesothelioma is associated with the lower levels of exposure typical of residence near an asbestos mine or mill or in the household of an asbestos worker are of significance. Although these studies do not possess the methodological strengths of the occupational studies, they must be considered in the medical evaluation of Reserve’s discharge into the air. Of course, it is still not possible to directly equate the exposure in Silver Bay with the exposure patterns in these nonoccupational studies. The studies typically do not attempt to quantify the level of exposure and, as noted above, it is not possible to assess with any precision the exposure level in Silver Bay; thus, exposure levels may be compared only on the most general basis. Furthermore, it is questionable whether Reserve’s operations may be equated with those of an asbestos mine or mill; for, while we concur in the trial court’s finding that Reserve discharges fibers similar, and in some cases, identical to amo-site asbestos, it is also true, as testified by plaintiffs’ own witnesses, that only a portion of Reserve’s discharge may be so characterized. Additionally, it is also true that at least some of the fiber counts reported to the court reflect all amphibole fibers present, thereby including fibers inconsistent with amosite asbestos. Even if all the amphibole fibers inconsistent with amosite could still be attributed to Reserve’s discharge, it remains uncertain whether the disease effects attributable to amosite may be extended to these other fibers, or whether the varying forms of asbestos possess differing pathogenic properties. 3. Conclusion. Plaintiffs’ hypothesis that Reserve’s air emissions represent a significant threat to the public health touches numerous scientific disciplines, and an overall evaluation demands broad scientific understanding. We think it significant that Dr. Brown, an impartial witness whose court-appointed task was to address the health issue in its entirety, joined with plaintiffs’ witnesses in viewing as reasonable the hypothesis that Reserve’s discharges present a threat to public health. Although, as we noted in our stay opinion, Dr. Brown found the evidence insufficient to make a scientific probability statement as to whether adverse health consequences would in fact ensue, he expressed a public health concern over the continued long-term emission of fibers into the air. We quote his testimony at some length. [Dr. Brown]. Based on the scientific evidence, I would be unable to predict that the number of fibers in the air of Silver Bay, as seen on four days in October, that I would be unable to predict that cancer would be found in Silver Bay. Now, going beyond that, it seems to me that speaking now in general terms, where it has been shown that a known human carcinogen, sir, and I make that distinction and I shall make it again, I suspect, a human carcinogen is in the air of any community, and if it could be lowered I would say, as a physician that, yes, it should be lowered. And if it could be taken out of the air completely, I would be even more happy. But the presence of a known, human carcinogen, sir, is in my view cause for concern, and if there are means of removing that human carcinogen from the environment, that should then be done. [A.23:207-08.] He explained further: As a physician, I take the view that I cannot consider, with equanimity, the fact that a known human carcinogen is in the environment. If I knew more about that human carcinogen, if I knew what a safe level was in the air, if I knew what a safe level was in the water, then I could draw some firm conclusions and advise you in precise terms. That information is not available to me and I submit, sir, it’s not available to anyone else. And that until that information is developed in a scientific way, using techniques that would be acceptable to the medical community, until that time has arrived, then I take only the view that I have expressed. [A.23:211.] But with asbestos, * * * we’re dealing with a different situation, we’re dealing with a material which is known to cause cancer not only in animals but in humans. [A.23:212.] Finally, in a post-trial deposition taken December 6, 1974, which the parties have stipulated may be considered by this court, Dr. Brown further testified: Q [Mr. Bastow, attorney for the United States]. [I]s there any question in your mind that the people living on the North Shore are being exposed to a human carcinogen in the air and water? A [Dr. Brown], Court studies demonstrated to my satisfaction that similar [asbestiform] fibers are present in the air of Silver Bay and since I am convinced that asbestiform fibers are carcinogenic for humans, my answer to your question would be yes. He added: I took some pains to also say that it was my medical opinion that the presence of a human carcinogen in the air and water was not to be taken lightly * * * Until I know what the safe level is I therefore could not, as a physician, consider with equanimity the fact that they are being exposed to a human carcinogen. [Brown dep. at 8-12.] B. The Discharge Into Water. The claim that Reserve’s discharge of tailings into Lake Superior causes a hazard to public health raises many of the same uncertainties present with respect to the discharge into air. Thus, the previous discussion of fiber identity and fiber size is also applicable to the water discharge. In two respects, however, the discharge into water raises added uncertainties: first, whether the ingestion of fibers, as compared with their inhalation, poses any danger whatsoever; and second, should ingestion pose a danger, whether the exposure resulting from Reserve’s discharge may be said to present a legally cognizable risk to health. 1. Ingestion of Fibers as a Danger to Health. All epidemiological studies which associate asbestos fibers with harm to health are based upon inhalation of these fibers by humans. Thus, although medical opinion agrees that fibers entering the respiratory tract can interact with body tissues and produce disease, it is unknown whether the same can be said of fibers entering the digestive tract. If asbestos fibers do not interact with digestive tissue, they are presumably eliminated as waste without harmful effect upon the body. The evidence bearing upon possible harm from ingestion of fibers falls into three areas: first, the court-sponsored tissue study, designed to measure whether asbestos fibers are present in the tissues of long-time Duluth residents; second, animal experiments designed to measure whether, as a biological phenomenon, fibers can penetrate the gastrointestinal mucosa and thus interact with body tissues; third, the increased incidence of gastrointestinal cancer among workers occupationally exposed to asbestos, and the hypothesis that this increase may be due to the ingestion of fibers initially inhaled. a. The Tissue Study. Recognizing. the complete lack of any direct evidence (epidemiological or otherwise) on the issue of whether the ingestion of fibers poses a risk, the trial court directed that a tissue study be conducted to determine whether the tissues of long-time Duluth residents contain any residue of asbestoslike fibers. The study sought to analyze by electron microscope the tissues of recently deceased Duluth residents who had ingested Duluth water for at least 15 years; that is, approximately since the beginning of Reserve’s operations. As a “control” check on results, tissue samples were obtained from the deceased residents of Houston, Texas, where the water is free of asbestos fibers. Although this study was necessarily expedited, plaintiffs’ principal medical witness, Dr. Selikoff, testified to the sound design of the study and expressed his belief that it would yield significant information. One of the court-appointed experts, Dr. Frederick Pooley, in explaining the results of the study, stated that he found that the tissues of the Duluth residents were virtually free of any fibers which could be attributed to the Reserve discharge. Dr. Brown said of this study: It is my conclusion, from the tissue study, that residents of Duluth have not been found to have asbestiform fibers in their tissues when compared with Houston. [A.23:208.] As we noted in the stay opinion, the parties dispute the significance to be attributed to the results of this study. Dr. Selikoff, prior to the conclusion of the study, expressed this view: Now, our feeling was that no matter what air samples show or water sam-pies show or anything else, unless it is found that asbestos is in the tissues of people who have drunk this water * * * if we do not find it in the tissues in appreciable quantities, then I would risk a professional opinion that there is no danger, at least up to this point, to the population no matter what our samples show or water samples. [A.ll:95.] After negative results had been actually obtained, however, plaintiffs argued, and the district court agreed, that because the specimens of tissue represented only a microscopically minute body area, the actual presence of fibers may have been overlooked. We note that this limitation had not seemed dispositive prior to the study when Dr. Selikoff commented: I would think we should find some fibers there. We’re looking for needles in a haystack, but that’s all right, we should find needles in the haystack with all the difficulties of the study, the technical difficulties, if we examine sufficiently large numbers of samples in some instances we should find some fibers there. [A.ll:77.] The district court decided, and we agree, that the study cannot be deemed conclusive in exonerating the ingestion of fibers in Lake Superior water as a hazard. The negative results must, however, be given some weight in assessing the probabilities of harm from Reserve’s discharge into water. The results also weigh heavily in indicating that no emergency or imminent hazard to health exists. Thus, while this study crucially bears on the determination of whether it is necessary to close Reserve down immediately, the negative results do not dispose of the broader issue of whether the ingestion of fibers poses some danger to public health justifying abatement on less immediate terms, b. Animal Studies and Penetration of the Gastrointestinal Mucosa. At a somewhat more theoretical level, the determination of whether ingested fibers can penetrate the gastrointestinal mucosa bears on the issue of harm through ingestion. If penetration is biologically impossible, then presumably the interaction of the fibers. with body tissues will not occur. This medical issue has been investigated through experiments with animals which, unfortunately, have produced conflicting results. For example, Reserve witness Dr. Davis reported on his experiment in feeding crocidolite and chryso-tile asbestos to rats for varying periods of up to six months. He killed the rats at the end of the period and examined their gastrointestinal tissues for evidence of fibers. At the time of trial, light and electron microscopy had so far revealed no evidence of fibers in the tissues. [A.16:143-59.] Plaintiffs, however, cited contrary studies. Research by George Westlake, in which rats were fed a diet including chrysotile fibers, indicated that fibers had traveled through the colon wall and accumulated in the area of the mesothe-lium. [A.ll:23-25.] Pontrefact, who injected chrysotile fibers into the stomachs of rats, found that fibers had dispersed throughout the body tissues. [A.ll:37-41.] On this conflicting scientific evidence, Dr. Brown testified that the Westlake and Pontrefact studies provide some support for the hypothesis that asbestos fibers can penetrate the gastrointestinal mucosa. c. Excess Gastrointestinal Cancer Among the Occupationally Exposed. The affirmative evidence supporting the proposition that the ingestion of fibers poses a danger to health focuses on the increased rate of gastrointestinal cancer among workers occupationally exposed to asbestos dust. Plaintiffs’ experts attribute this excess incidence of gastrointestinal cancer to a theory that the asbestos workers first inhaled the asbestos dust and thereafter coughed up and swallowed the asbestos particles. The attribution of health harm from ingestion rests upon a theoretical basis. As Dr. Selikoff explained, there are several possible explanations for the increased evidence of gastrointestinal cancer, some of which do not involve ingestion. [A.ll:41-43.] Moreover, as noted previously, the excess rates of gastrointestinal cancer are generally “modest” [A.10:220, 223, 226, 279.], and substantially lower than the excess rates of mesothelioma and lung cancer associated with inhalation of asbestos dust. Also, the experts advised that an analysis of a small exposed population may produce statistically “unstable” results. [A.10:278-80.] The existence of an excess rate of gastrointestinal cancer among asbestos workers is a matter of concern. The theory that excess cancers may be attributed to the ingestion of asbestos fibers rests on a tenable medical hypothesis. Indeed, Dr. Selikoff testified that ingestion is the “probable” route accounting for the excess in gastrointestinal cancer. [A. 11:44.] The occupational studies support the proposition that the ingestion of asbestos fibers can result in harm to health. 2. Level of Exposure Via Ingestion. The second primary uncertainty with respect to ingestion involves the attempt to assess whether the level of exposure from drinking water is hazardous. Of course, this inquiry is handicapped by the great variation in fiber counts, and Dr. Brown’s admonition that only a qualitative, and not a quantitative, statement can be made about the presence of fibers. In spite of these difficulties, the district court found that the level of exposure resulting from the drinking of Duluth water was “comparable” to that found to cause gastrointestinal cancer in asbestos workers. 380 F.Supp. at 48. The court drew this finding from an elaborate calculation by Dr. Nicholson in which he attempted to make a statistical comparison between the fibers probably ingested by an asbestos worker subject to an excess risk of gastrointestinal cancer with the probable number of amphi-bole fibers ingested by a Duluth resident over a period of 18 years. [A.22-.228-229.]' To make this calculation, Dr. Nicholson computed what he believed to be the level of exposure in a typical occupational environment and multiplied this figure by the total amount of air inhaled by the worker over a four-year period (taken to be the relevant period in which a risk of excess gastrointestinal cancer was posed), thereby obtaining total fibers inhaled. A percentage reduction was then applied to obtain the number of fibers brought up the respiratory tract and swallowed. For Duluth residents, Dr. Nicholson calculated the number of fibers ingested over an 18-year period, assuming a daily intake' of two liters of water and a fiber concentration of 25 million fibers/liter. From these assumptions, Dr. Nicholson opined that a Duluth resident over a period of 18 years ingested about two-thirds of the amount of asbestos fibers swallowed by an asbestos worker in four years. As is evident, this calculation is beset by several uncertainties. The assumptions as to fiber concentration m occupational settings and the resulting percentage of fibers ingested involve margins of error. Furthermore, in assuming that the relevant fiber concentration in Duluth water was 25 million fibers/liter, Dr. Nicholson used a figure twice that found by the court as the mean concentration of all amphibole fibers. Reserve witness Dr. Gross performed a calculation similar to Dr. Nicholson’s, but using somewhat different assumptions, and concluded that Duluth water would have to contain several hundred million fibers/liter and be ingested for 60 years before an exposure comparable with occupational levels would be reached. [A.17:37-51.] The comparison has other weaknesses, for without regard to the comparability of the gross exposure levels, the dynamics of the exposure process are markedly different. The vagaries attendant to the use of assumptions rather than facts result in comparisons which are of dubious accuracy. Thus, Dr. Brown testified that, if Nicholson’s calculations were correct, he would conclude only that the risk was non-negligible. [Brown dep. at 20.] The Nicholson comparison, although evidentially weak, must be considered with other evidence. The record does show that the ingestion of asbestos fibers poses some risk to health, but to an undetermined degree. Given these circumstances, Dr. Brown testified that the possibility of a future excess incidence of cancer attributable to the discharge cannot be ignored: * *. * I would say that it is conceivable that gastrointestinal cancers can develop from the ingestion of asbestos, and what I don’t know, Your Honor, is just how low that level of ingestion must be before the likelihood of GI cancer becomes so remote as to be, for all intents and purposes, ignored as a real live possibility. [A.23:157.] We quote at length Dr. Brown’s testimony expressing the medical concern appropriate to the continued discharge of asbestos fibers into Lake Superior: [Dr. Brown], After some degree of exposure to the literature and to the testimony given in this trial I would say that the scientific evidence that I have seen is not complete in terms of allowing me to draw a conclusion one way or another concerning the problem of a public health hazard in the water in Lake Superior. Q. [The court]. Would you define the difference between what you say is scientific proof and medical proof, and then maybe I will give you another kind of proof that I have to live with here and we will see where we are going? A. Well, science requires a level of proof which is pretty high. That is, we do not accept as truth things that seem to be casually associated, a cause casually associated with an effect. We have erected certain statistical barriers which force us to come to conclusions based on probability, and Dr. Taylor used those terms. He used .05 per cent, he used things like .01 per cent, criteria which generally are accepted in the scientific community as levels which are consistent with or from which you can conclude' that there is some cause and effect relationship. Q. All right. Now, scientific proof for what purpose? Doesn’t the quantum of proof vary with the purpose? Now, I haven’t really asked you this before, but wouldn’t scientists be satisfied for one purpose and not another, or is that when you stop and put on your medical hat then, after you get a certain quantum of proof? A. Well, as a scientist, sir, I would say that there are many questions which have been raised in this trial which would provide me with a hypothesis which I would like to see pursued. This is in the abstract scientific sense of an interesting intellectual, question for which there is suggestive evidence. Now, when I turn, however, to the medical side of things, Your Honor, P am faced with the fact that I am convinced that asbestos fibers can cause cancer, I am faced with the fact that I have concluded that the size of the fibers is not particularly helpful in allowing me to decide whether a given fiber is or is not carcinogenic. As a medical person, sir, I think that I have to err, if err I do, on the side of what is best for the greatest number. And having concluded or having come to the conclusions that I have given you, the carcinogenicity of asbestos, I can come to no conclusion, sir, other than that the fibers should not be present in the drinking water of the people of the North Shore. [A.23:202-203.] C. Conclusion. The preceding extensive discussion of the evidence demonstrates that the medical and scientific conclusions here in dispute clearly lie “on the frontiers of scientific knowledge.” Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467, 474 (1974). The trial court, not having any proof of actual harm, was faced with a consideration of 1). the probabilities of any health harm and 2) the consequences, if any, should the harm actually occur. See Carolina Environmental Study Group v. United States,. 510 F.2d 796 at 799 (D.C.Cir., Jan. 21, 1975). The District of Columbia Circuit was recently confronted with a problem analogous to the one now before us in Ethyl Corporation v. Environmental Protection Agency, Civil No. 73 — 2205 (D.C.Cir., Jan. 28, 1975). The court, faced with a regulation of the Environmental Protection Agency requiring the phased reduction of the lead content in motor vehicle gasoline promulgated pursuant to a statute authorizing a restriction only if the emission product of a fuel or fuel additive “will endanger the public health or welfare,” rejected the EPA regulation stating that “the case against auto lead emissions is a speculative and inconclusive one at best.” Id. at 6-8. The majority reasoned that in the absence of past harm, no potential consequences can be considered. If there can be found potential harm from lead in exhaust emissions, the best (and only convincing) proof of such potential harm is what has occurred in the past, from which the Administrator can logically deduce that the same factors will produce the same harm in the future. [Id. at 14.] Judge J. Skelly Wright, in dissent, approached the problem of potential harm as encompassed within the statutory term of “will endanger” differently. He discussed this concept of danger to the public health in terms of separate but reciprocal evaluations of both risk and harm: While “risk” and “harm” are separate concepts that cannot be compared and ranked * * * there is a reciprocal relationship between them, and they may not really be assessed in isolation * * *. The “significance” of the risk * * * can only be ascertained through knowledge of the threatened harm, and it is the total “risk of harm” that must be sufficient to endanger the public health. This relationship does not, however, invalidate the separate analysis * * *, for the parameters of each term must be identified before their interaction can be studied. [Id. at 14 n. 14 of dissenting opinion.] Judge Wright, believing the EPA regulations valid, concluded that the low probability of harm (greater than a remote possibility) shown by the EPA coupled with the potentially dire consequences which could result from lead emissions justified the EPA regulations. See id. at 10-11 of dissenting opinion. These concepts of potential harm, whether they be assessed as “probabilities and consequences” or “risk and harm,” necessarily must apply in a determination of whether any relief should be given in cases of this kind in which proof with certainty is impossible. The district court, although not following a precise probabilities-consequences analysis, did consider the medical and scientific evidence bearing on both the probability of harm and the consequences should the hypothesis advanced by the plaintiffs prove to be valid. In assessing probabilities in this case, it cannot be said that the probability of harm is more likely than not. Moreover, the level of probability does not readily convert into a prediction of consequences. On this record it cannot be forecast that the rates of cancer will increase from drinking Lake Superior water or breathing Silver Bay air. The best that can be said is that the existence of this asbestos contaminant in air and water gives rise to a reasonable medical concern for the public health. The public’s exposure to asbestos fibers in air and water creates some health risk. Such a contaminant should be removed. As we demonstrate in the following sections of the opinion, the existence of this risk to the public justifies an injunction decree requiring abatement of the health hazard on reasonable terms as a precautionary and preventive measure to protect the public health. III. DISCHARGE INTO THE AIR The district court enjoined Reserved discharge of asbestos fibers into the air at Silver Bay, Minnesota, as a federal common law nuisance, as a public nuisance under state law, as a violation of certain Minnesota air pollution control regulations, APC 1, 5, 6, and 17, 380 F.Supp. 55-56, and as a violation of APC 3(a)(2) and its underlying statute, Minn. Stat.Ann. § 116.081(1) (Supp.1974), which require a permit for the operation of emission facilities, United States v. Reserve Mining Co., 394 F.Supp. 233 at 242-244 (D.Minn., Oct. 18, 1974). A. Federal Common Law Nuisance. We reject the federal common law of nuisance as a basis for relief. As formulated in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971), federal nuisance law contemplates, at a minimum, interstate pollution of air or water. The United States, while invoking this doctrine, alleges only that Reserve’s discharge “significantly endangers the health of all those persons living in the vicinity of the defendant’s taconite ore processing operations.” The States of Michigan and Wisconsin do not complain-of air pollution and Minnesota alleges that the discharge causes common law public nuisance but does not allege interstate effects. The pleadings indicate that Minnesota’s claim rests on Reserve’s violation of Minnesota laws by creating an alleged danger to the health of its citizens. We construe Minnesota’s complaint as asserting a state nuisance law violation. Additionally, in our review of the record, we find no evidence of any interstate health hazard, and no testimony from medical witnesses indicating any substantial concern over the health of any citizens exposed to Reserve’s air discharge other then those residing in the Silver Bay, Minnesota, area. Although the district court opinion refers to a measurement of cummingtonite-gruner-ite fibers in snow samples from northern Wisconsin, 380 F.Supp. at 50, and the district court found evidence of these fibers in the air “as far away as Wisconsin * * V’ 380 F.Supp. at 50, the trial court limited to the Silver Bay area any showing of a significant burden of excess fibers. 380 F.Supp. at 48. B. Violations of Minnesota Law. We turn now to Minnesota’s claims that its laws are being violated by Reserve’s air discharge. In ordering, on April 20, 1974, an immediate cessation of air discharges containing amosite asbestos, the district court relied upon violations by Reserve of APC 5, 6, and 17— regulations published by the Minnesota Pollution Control Agency pursuant to Minn.Stat.Ann. § 116.07 — and the state’s public nuisance law which is formulated at Minn.Stat.Ann. § 609.74(1). 380 F.Supp. at 17. Subsequently, Minnesota amended its complaint under Fed.R. Civ.P. 15(b) to allege violations of APC 1 and 3, and Minn.Stat.Ann. § 116.081(1) relating to air emission permits. Because the district court held that Reserve’s discharge also violates these provisions, 380 F.Supp. at 56 and Order of October 18, 1974, at 14, we also examine whether these alleged violations provide alternative or additional grounds for in-junctive relief. 1. APC 1. The district court observed that studies of suspended particulate matter in the air over Silver Bay for the months of July through October 1972 disclosed only isolated instances of violation of the primary and secondary air quality standards of APC l. The court noted, however, that the data introduced at trial, * * * reveals that since October 1972 there has been a marked increase in the number of days in which the secondary standard was exceeded and several days in which the primary standard was exceeded. [Order of Oct. 18, 1974, at 14-15.] On the basis of this evidence, the court properly held that Reserve was in violation of APC 1. 2. APC 5. APC 5 limits the emission of particulate matter from industrial processes. Generally, it prohibits the operation of an existing emission source unless it has filtration equipment with a collection efficiency of 99 percent by weight. The district court found, and Reserve does not deny, that its present methods of filtration fail to comply with this standard. 3. APC 3 and Minn.Stat.Ann. § 116.-081(1). APC 3(a)(2)(bb) requires that a person “operating an existing installation which is a source of air contaminants and air pollution shall apply for an operating permit.” Minn.Stat.Ann. § 116.081(1) makes unlawful the operation of an “emission facility” without a permit from the Minnesota Pollution Control Agency. The district court prop- - erly held that Reserve is in violation of both APC 3 and Minn.Stat.Ann. § 116.-081(1) by its failure to obtain a permit for its emissions into the air of Silver Bay. 4. The Stipulation Agreement. Reserve concedes that it does not have a permit as required by APC 3 and Minn.Stat.Ann. § 116.081(1), but contends in its brief that an existing stipulation [A.l: 198-210.] with the Minnesota Pollution Control Agency, signed by Reserve in late 1972, “is itself, a permit authorizing Reserve’s air discharges.” That agreement expressly provides that Reserve shall be issued “appropriate installation and operating permits” by the Agency only upon compliance “with applicable laws, regulations and standards of the Agency * * [A.l:210.] The agreement does not relieve Reserve óf the duty of obtaining the required permits. Reserve also relies upon the stipulation agreement as a defense to Minnesota’s claims that it is in violation of APC 1 and 5, standards previously discussed. While the stipulation arguably shields Reserve from criminal liability or civil penalties, for its violation of air emission regulations, it cannot shield Reserve from an abatement order based on the existence of a hazard to health from the air emission, for evidence of this hazard had not yet surfaced when Minnesota and Reserve entered into the stipulation. 5. Public Nuisance. Because we affirm the district court’s findings that Reserve, by its air emission, is violating APC 1, 3, and 5, and Minn.Stat.Ann. § 116.081(1), it follows that Reserve’s violations may be enjoined as a public nuisance. Minnesota’s pollution control law so provides: Injunctions. Any violation of the provisions, regulations, standards, orders, stipulation agreements, variances, schedules of compliance, or permits specified in chapters 115 [water pollution control; sanitary districts] and 116 [Pollution Control Agency] shall constitute a public nuisance and may be enjoined as provided by law in an action, in the name of the state, brought by the attorney general. [Minn.Stat.Ann. § 115.071(4) (emphasis added).] In light of this statute, we deem it unnecessary to discuss whether Reserve’s air emissions could constitute a public nuisance independently of violations of the state’s air pollution control regulations. 6. APC 17. The district court found that Reserve’s emission of amosite asbestos fibers into the ambient air violates the asbestos emission regulation, APC 17, of the Pollution Control Agency. This regulation designates the use of specific control equipment for emissions within its coverage. The regulation calls for control equipment, referred to in the regulation as a fabric filter and by the parties as a baghouse filter, with a mass collection efficiency of 99.9 percent. See APC 17(e)(2)(bb)(i). APC 17 defines “asbestos” as “any of six naturally occurring, hydrated mineral silicates: Actinolite, amosite, anthophyl-lite, chrysotile, crocidolite, and tremol-ite.” It defines “manufacturing operation” as the “processing of asbestos or the production of any product containing asbestos.” A product is deemed “to contain asbestos if a detectable amount of asbestos is present in the product or in any material that goes into the product.” Minnesota contends that the district court’s finding that Reserve’s emissions into the air “contain substantial quantities of amosite fibers and fibers similar to amosite,” 380 F.Supp. at 89, supports the court’s holding that Reserve is in violation of APC 17. Reserve takes the position that compliance with APC 17 is unnecessary for any health reason and necessitates economic waste because bag-house filters cost more to install and maintain than air filtration systems meeting other Minnesota emission control standards. Reserve urges a restricted application of the phrase “manufacturing operation” as it appears in the regulation and argues that, because taconite is not considered asbestos in the ordinary usage of that term, Minnesota improperly interpreted APC 17 and has unreasonably applied it to Reserve’s operation. Reserve further questions the reasonableness of the emission standard defined by the regulation. It argues that even if fabric filters do have a mass collection efficiency of 99.9 percent, the quantity of emissions will vary from plant to plant according to the amount of material processed and without respect to what level of emission is safe to health. We need deal only with Reserve’s first objection, that it is not a. “manufacturing operation” for purposes of the regulation. Is Reserve engaged in “the processing of asbestos” or “the production of any product containing asbestos?” On the basis of the record in this case we cannot say that Reserve’s taconite should be considered asbestos for the purposes of this regulation or that Reserve’s product, iron ore pellets, contains asbestos within the meaning of APC 17(a)(12). The court below made no finding that the pellets contain asbestos. At the most, asbestos occurs as a contaminant in a component, cummingtonite-grunerite, of the taconite that Reserve processes to produce iron ore pellets. The State of Minnesota adopted APC 17 following the adoption of a national asbestos emission standard, 40 C.F.R. §§ 61.20-.24 (1974), by the Environmental Protection Agency. The Federal Register published this standard on April 6, 1973, 38 Fed.Reg. 8820, and Minnesota adopted its standard on June 11, 1973. We assume that the Minnesota Pollution Control Agency adopted this regulation, in common with APC 1, 3, 4, 11, 15 and 16, pursuant to the state implementation plan requirements of the Clean Air Act of 1955, as amended, 42 U.S.C. § 1857c-5 (Supp.1974). In comments accompanying adoption of the national standard the administrator of the EPA identified five major sources of asbestos emissions: 1) mining and milling; 2) manufacturing; 3) fabrication; 4) demolition; and 5) spraying. 38 Fed.Reg. 8820. The administrator made explicit that the EPA regulation, insofar as it relates to mining and milling, applies only to asbestos mines and asbestos mills: EPA considered the possibility of banning production, processing, and use of asbestos or banning all emissions of asbestos into the atmosphere, but rejected these approaches. The problem of measuring asbestos emissions would make the latter approach impossible to enforce. [Id] The administrator made no specific reference to other mining or milling. With respect to manufacturing, the EPA’s standard applies to “selected manufacturing operations.” Id. On May 3, 1974, the EPA clarified its asbestos emission standard by stating that it does not apply to asbestos occurring as a contaminant, as distinguished from asbestos as a product. This clarification expressly notes that the release of asbestos as a contaminant in the milling of taconite ore does not constitute milling or manufacturing for purposes of the federal standard. 39 Fed.Reg. 15397 (May 3, 1974). In this revision, the administrator added a definition of “commercial asbestos” to distinguish asbestos which is produced as a product from asbestos which occurs as a contaminant in other materials and to make explicit that materials that contain asbestos as a contaminant do not fall within the standard. The administrator further commented: Asbestos is also a contaminant in taconite ore. EPA at this time believes that asbestos releases from the milling of such ores should be covered by the hazardous air pollutant regulations and intends in the near future to propose for comment regulations which would accomplish this. Because the revisions here being promulgated are only clarifications of the Agency’s intentions at the time the initial hazardous air pollutant regulations for, asbestos were published and because they are not being proposed for comment, EPA believes that it is not appropriate to include restrictions on releases of asbestos from taconite milling operations in these revisions. [39 Fed. Reg. 15397 (May 3, 1974) (emphasis added).] The Administrator then observed that he had not included in the original regulation a definition of “asbestos mill.” He clarified the original regulation by defining the phrase and explained the definition in this way: The definition excludes the milling of ores that contain asbestos minerals only as a contaminant as previously discussed under the definition of “commercial asbestos.” As noted earlier, the Agency intends to propose regulations covering taconite milling operations. [Id.] Minnesota has offered no record of any hearing or other evidence of the purpose of APC 17. We cannot accede to Minnesota’s argument that APC 17 should be applied more extensively than the federal regulation after which it is closely patterned in the absence of evidence of an independent background for its adoption. Although Minnesota may adopt more stringent air pollution control standards than the Clean Air Act requires, see 42 U.S.C. § 1857d-l, this record furnishes no implication that it has done so. As bearing on this issue, Dr. John Olin, Deputy Director of the Minnesota Pollution Control Agency, testified only that “I wrote that regulation” [Tr. 18,233.] and that “[w]e would feel that the Reserve operation, would fall under [it].” [Tr. 18,240.] On this record, we hold APC 17 as inapplicable to the discharge of asbestos fibers occurring as a contaminant in the processing of iron ore. In summary, we affirm the district court’s holding that Reserve is in violation of APC 1, 3, and 5, and Minn. Stat.Ann. § 116.081(1). As such, Reserve’s continuing violations are subject to an abatement order. We disagree with the district court’s application of APC 17 to Reserve. IV. FEDERAL WATER POLLUTION CONTROL ACT The district court found that Reserve’s discharge into Lake Superior violated §§ 1160(c)(5) and (g)(1) of the Federal Water Pollution Control Act. (FWPCA). 380 F.Supp. at 16. These two provisions authorize an action by the United States to secure abatement of water discharges in interstate waters where the discharges violate state water quality standards and “endanger * * * the health or welfare of persons.” § 1160(g)(1). Minnesota has adopted water quality standards — Minnesota Water Pollution Control Regulation 15 (WPC 15) — in conformity with the FWPCA. These standards read in relevant part: (2) No raw or treated sewage, industrial waste or other wastes shall be discharged into any interstate waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum, oil slicks, excessive suspended solids, material discoloration, obnoxious odors, gas ebullition, deleterious sludge deposits, undesirable slimes or fungus growths, or other offensive or harmful effects. [WPC 15(c)(2) (emphasis added).] WPC 15 incorporates selected Minnesota statutory provisions into the water quality standards, including the policy of “protection of the public health” contained in Minn.Stat.Ann. § 115.42 and a definition of “pollution” contained in Minn.Stat.Ann. § 115.01(5) as contamination which renders waters “impure so as to be actually or potentially harmful or detrimental or injurious to public health, safety or welfare * * (Emphasis added). The evidence shows Reserve’s water discharge to be “potentially harmful” to the public health. As such, these discharges pollute the waters of Lake Superior in violation of the Minnesota water quality standards. An action under the FWPCA requires proof of an additional element. The United States must establish that the water pollution which is violative of state water quality standards is also “endangering the health or welfare of persons.” § 1160(g)(1). In this review, we must determine whether “endangering” within the meaning of the FWPCA encompasses the potential of harm to public health in the degree shown here. Provisions of the FWPCA are aimed at the prevention as well as the cure of water pollution. The initial sentence of the FWPCA reads: The purpose of this chapter is to enhance the quality and value of our water resources and to establish a national policy for the prevention, control, and abatement of water pollution. [33 U.S.C. § 1151(a).] The term “endangering,” as used by Congress in § 1160(g)(1), connotes a lesser risk of harm than the phrase “imminent and substantial endangerment to the health of persons” as used by Congress in the 1972 amendments to the FWPCA. 33 U.S.C. § 1364 (Supp.1974). In the context of, this environmental legislation, we believe that Congress used the term “endangering” in a precautionary or preventive sense, and, therefore, evidence of potential harm as well as actual harm comes within the purview of that term. We are fortified in this view by the flexible provisions for injunctive relief which permit a court “to enter such judgment and orders enforcing such judgment as the public interest and the equities of the case may require.” 33 U.S.C. § 1160(c)(5). We deem pertinent the interpretation given to the term “endanger” by Judge Wright of the District of Columbia Circuit in his analysis of the congressional use of the word “endanger” in the context of a provision of the Clean Air Act. 42 U.S.C. § 1857f-6c(c)(l)(A)(1970). Judge Wright observed: The meaning of “endanger” is, I hope, beyond dispute. Case law and dictionary definition agree that endanger means something less than actual harm. When one is endangered, harm is threatened; no actual injury need ever occur. H« sk sk * sk sk “Endanger,” * * * is not a standard prone to factual proof alone. Danger is a risk, and so can only be decided by assessment of risks. sk sk sk sk sk sk [A] risk may be assessed from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, or from probative preliminary data not yet certifiable as “fact.” [Ethyl Corporation v. Environmental Protection Agency, No. 73-2205 (D.C.Cir., Jan. 28, 1975) (dissenting op. at 11, 31-33) (emphasis in original) (footnote omitted).] Although the Supreme Court has not interpreted the concept of “endangering” in the context of an environmental lawsuit, it has emphasized the importance of giving environmental legislation a “common-sense” interpretation. Mr. Justice Douglas, writing for the Court, said: This case comes to us at a time in the Nation’s history when there is greater concern than ever over pollution — one of the main threats to our free-flowing rivers and to our lakes as well. * * * [W]hatever may be said of the rule of strict construction, it cannot provide a substitute for common sense, precedent, and legislative history. [United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 1428, 16 L.Ed.2d 492 (1966).] See United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The record shows that Reserve is discharging a substance into Lake Superior waters which under an acceptable but unproved medical theory may be considered as carcinogenic. As previously discussed, this discharge gives rise to a reasonable medical concern over the public health. We sustain the district court’s determination that Reserve’s discharge into Lake Superior constitutes pollution of waters “endangering the health or welfare of persons” within the terms of §§ 1160(c)(5) and (g)(1) of the Federal Water Pollution Control Act and is subject to abatement. V. REFUSE ACT The United States further asserts as a basis for injunctive relief that Reserve’s discharge into the water violates § 13 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 407 (1970). The United States contends that Reserve’s discharge is “refuse matter” within the meaning of that section, and that Reserve does not possess a valid permit sanctioning this discharge. In its Order of October 18, 1974, the district court sustained the position of the United States. Although the Refuse Act was initially thought to apply to only those discharges which could arguably affect navigation, the cases now make clear that the term “refuse matter of any kind or description” in § 407 includes * * * all foreign substances and pollutants apart from those “flowing from streets and sewers and passing therefrom in a liquid state” into the water course. [United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492 (1966).] See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 670-72, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). The 67,000 tons of taconite tailings Reserve discharges daily into Lake Superior constitutes “refuse matter” within the meaning of § 407. The broad phraseology of § 407, “any refuse matter of any kind or description whatever other than that flowing from streets and sewers * * prohibits virtually all deposits of foreign matter into navigable waters except liquids flowing from streets and sewers, absent a valid permit. United States v. Standard Oil Co., 384 U.S. 224, 226, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Ballard Oil Co., 195 F.2d 369, 371 (2d Cir. 1952). Cf. United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 658 & n. 3, 670-72 (1973); United States v. Rohm & Haas Co., 500 F.2d 167, 170 (5th Cir. 1974), cert. denied,--U.S.--, 95 S.Ct. 1352, 43 L.Ed. 439 (1975); United States v. United States Steel Corp., 482 F.2d 439, 442 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). Reserve, however, does have a permit which, it asserts, precludes a finding of a violation of the Refuse Act. The Department of the Army granted this permit in 1948 pursuant to 33 U.S.C. § 403 and it authorized Reserve “to construct a steel sheet pile dock * * * and, to deposit tailings from the ore processing mill in [to] Lake Superior * * *.” [Reserve Ex. 451, subex. 12.] Reserve received revalidated or modified permits periodically until 1960, when it requested and obtained an amended permit authorizing deposition of tailings “for an indefinite period.” The United States contends, and the district court found, that while this permit is valid as it relates to possible impediments to navigation, it does not now sanction the continued dumping of refuse matter into Lake Superior. Reserve has not received a revalidation of its permit since 1960 and, as noted above, the judicial and administrative interpretation of “refuse matter” has been greatly expanded beyond its initial application solely to navigational matters. Thus, the issue remains whether Reserve’s permit sanctions the deposition of refuse matter under the broadened interpretation of the law. On June 29, 1971, at the behest of the Corps of Engineers, Reserve submitted an application for a new permit under the Refuse Act Permit Program. However, before the Corps acted, Congress, in October of 1972, passed the 1972 amendments to the FWPCA which replaced the Refuse Act Permit Program with the National Pollutant Discharge Elimination System (NPDES), 33 U.S.C. § 1342 (Supp.1974), and converted pending Refuse Act permit applications into NPDES permit applications by § 1342(a)(5). The record shows no action on Reserve’s application since the Corps acknowledged receipt in early 1972. The existence of the pending application, however, does not preclude a determination that Reserve is violating the Refuse Act. Although the 1972 amendments to the FWPCA specifically provide that “in any case where a permit for discharge has been applied for” there can be no violation of the Refuse Act' until December 31, 1974, 33 U.S.C. § 1342(k) (Supp.1974), a savings provision in a footnote to the 1972 amendments preserves a Refuse Act claim such as this one initiated prior to these amendments. See United States v. Rohm & Haas Co., 500 F.2d 167, 170-74 (5th Cir. 1974), cert. denied, - U.S. -, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975); United States v. Ira S. Bushey & Sons, 363 F.Supp. 110, 119-120 (D.Vt.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973). Since Reserve’s current application for a new permit cannot be interposed as a defense to a possible Refuse Act violation, Reserve must premise its defense on its current permit issued in 1960. Clearly, the Corps considered only navigational matters in issuing this permit. The permit reads, in part, as follows: Note — It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. IT MERELY EXPRESSES THE ASSENT OF THE FEDERAL GOVERNMENT SO FAR AS CONCERNS THE PUBLIC RIGHTS OF NAVIGATION. [Reserve Ex. 451, sub-ex. 12 (emphasis in original).] Further, the permit refers almost exclusively to impediments to navigation. A permit which grants government consent to a discharge into waters which does not impede navigation cannot be construed as a consent to continue this discharge upon discovery that the discharged materials may be hazardous to public health. We agree with the district court that Reserve’s discharges in the future are subject to abatement under the Refuse Act as we provide in the Remedy Section of this opinion, part VII. The district court also found that Reserve’s discharge into Lake Superior constituted a nuisance under the federal common law of nuisance. 380 F.Supp. at 16, 55. Because relief may appropriately rest on provisions of the FWPCA and on a violation of the Refuse Act, we deem it unnecessary and, indeed, unwise to also rely on federal nuisance law. Compare Illinois v. City of Milwaukee, 406 U.S. 91, 107, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). See also 15 B.C. Ind. & Comm.L.Rev. 795, 811-812 (1974); 14 B.C.Ind. & Comm.L.Rev. 767, 780-85 (1973); Note, Federal Common Law and Interstate Pollution, 85 Harv.L.Rev. 1439, 1451-56 (1972). Thus, we rest our resolution of the water issues solely on the FWPCA and the Refuse Act. VI. MISCELLANEOUS ISSUES Before discussing the appropriateness of the remedy imposed by the district court, we resolve a number of issues subsidiary to the parties’ main contentions. A. Reserve Mining Co. v. Environmental Protection Agency. In No. 73-1239, Reserve Mining Co. v. Environmental Protection Agency, Reserve has filed an original petition with this court based on 33 U.S.C. § 1369(b)(1) (Supp.1974), seeking to annul the Minnesota state water quality standards — WPC 15 — as arbitrary and unreasonable, and asking that we order the Administrator of the Environmental Protection Agency, pursuant to 33 U.S.C. § 1313(a) (Supp.1974), to direct that Minnesota modify WPC 15 to bring it into conformity with the standards of the FWPCA. Reserve filed this petition on April 13, 1973, but it has not further briefed this question nor has the EPA submitted a brief. Since Reserve has not pressed this issue before us by its briefs or in oral argument, we consider the issue abandoned and we dismiss this petition. B. Separate Appeals of Environmental Plaintiffs and State of Michigan. In Nos. 75 — 1003 and 1005, the environmental plaintiffs and Michigan seek to perfect an appeal from a portion of the district court’s Order of October 18, 1974. The part appealed from reads: Evidence that Reserve’s discharge harms the ecology of Lake Superior is unnecessary to the entry of final judgment terminating litigation on the merits, and the Court will not allow the introduction of any such evidence by any party. If we were to reverse the district court on the health issue, then, presumably further hearings would be required on the ecological issues. However, since we affirm the existence of a health hazard and direct its abatement, no additional trial is required on the remaining ecological questions relating to Lake Superior. We dismiss these appeals. C. Wisconsin’s Claims. Wisconsin, as a plaintiff-intervenor, argues that Reserve’s water discharge violates various Wisconsin statutes and causes a public nuisance subject to abatement under Wisconsin common law. Since we order abatement pursuant to other statutes, a determination of these issues is unnecessary to a resolution of this case. D. Joinder of Armco and Republic Steel Corporations. Armco Steel Corporation and Republic Steel Corporation — the two parent corporations of Reserve — appeal from their joinder as defendants pursuant to Fed.R. Civ.P. 19(a)(1). The district court first joined Armco and Republic as defendants on January 2, 1974. On January 22, 1974, this court set aside the joinder order. Armco Steel Corp. v. United States, 490 F.2d 688 (8th Cir. 1974). In that order we stated: We make it clear, however, that our direction to the district court to set aside the joinder order is without prejudice to the rights of the plaintiffs to subsequently move that Armco and Republic be joined as parties following completion, of the evidence relating to health hazards and liability. At that time, the record may show some basis for joining Armco and Republic in order to provide appropriate relief. Our ruling will not necessarily preclude subsequent joinder of Armco and Republic if the plaintiffs make a proper showing of adequate need for these parties in the litigation. [Id. at 691.] On March 29, 1974, the district court, finding that the evidence relating to public health had been substantially completed, rejoined Armco and Republic. The two corporations claim that they have been denied due process by this joinder at a late stage of the trial and that in any event this joinder under Fed. R.Civ.P. 19 was invalid since they are not necessary or indispensable parties. We examine these arguments. Armco and Republic allege that their late entrance into the litigation prevented them from adequately protecting their interests. They contend that Reserve is an entity separate and distinct from Armco and Republic and Reserve has not been representative of these newly-joined parties-defendant. On this contention, the district court observed: It is the finding of this Court that the independent corporate identity of Reserve Mining Company must be and is disregarded since this Court cannot allow the interposition of corporate entity to frustrate the implementation of a judgment that is required by justice * * *. The Court finds that this subsidiary (Reserve) is so dominated by its parents (Armco Steel Corp. and Republic Steel Corp.) that it is a mere agency or instrumentality of the parents. [380 F.Supp. at 27.] The district court concluded: Reserve is the personification of Armco and Republic in the State of Minnesota. * # * * * * In addition, the privity between Republic, Armco and Reserve is sufficient to give res judicata effect to the decision of this Court against Armco and Republic. Therefore they are not prejudiced by joinder. [Id. at 29.] We believe the evidence amply demonstrates that Armco and Republic, as the sole stockholders of Reserve, have interests substantially identical with those of Reserve and that the district court did not abuse its discretion under Rule 19(a) in ruling “that complete relief [could] not be accorded plaintiffs” unless Armco and Republic were joined. 380 F.Supp. at 27. Moreover, Armco and Republic show no prejudice from this late joinder. We affirm on this appeal. E. Filtered Drinking Water Supplies. The United States appeals from an order of the district court issued April 19, 1974, requiring the Army Corps of Engineers to provide filtered drinking water to localities along Lake Superior “without [permitting the Corps to obtain] any agreement from the affected cities at this time as to reimbursement.” The United States claims that the district court invaded the discretionary powers granted by Congress solely to the Chief of Engineers to “provide emergency supplies of clean drinking water, on such terms as he determines to be advisable * * * ” On April 5, 1974, the Chief of Engineers determined that certain cities on Lake Superior required emergency supplies of clean drinking water and he directed the North Central Engineers to provide the water. Although the United States seeks to appeal the district court’s ruling on this issue, at oral argument counsel for the United States informed the court that the Corps of Engineers was complying with the district court’s order and would “continue to do so regardless of the outcome of this appeal * * *.” We construe the district court’s order as applying only to the existing allocation of federal funds for this purpose. Thus, in light of the Government’s statement at oral argument, we dismiss the appeal as moot. F. Reserve’s Defense of Res Judicata. Reserve argues that the Minnesota state district court decision of December 15, 1970 (reproduced in the Supplement to Reserve’s brief at 107), and the Minnesota Supreme Court decision reviewing that case, Reserve Mining Co. v. Minnesota Pollution Control Agency, 294 Minn. 300, 200 N.W.2d 142 (1972), operate to bar Minnesota from litigating here those issues decided in the Minnesota courts. Reserve initiated the Minnesota state litigation in an attempt to determine the validity and applicability to it of the state water quality standards, WPC 15. Minnesota counterclaimed for an injunction, asserting that Reserve’s discharges were polluting the lake and constituted a public nuisance. The state district court found certain provisions of WPC 15 either not applicable to Reserve or else “unreasonable, arbitrary, and invalid as applied to * * * Reserve.” The state district court came to no conclusion as to pollution but directed an alteration in the method of discharge in order to confine the distribution of tailings within the great trough area. See note 3 supra. The question of a possible health hazard in Reserve’s discharges did not come before that court. The appeal to the Minnesota Supreme Court raised only narrow procedural grounds and the court did not consider the merits. 200 N.W.2d at 143. The Minnesota Supreme Court remanded the case to the Minnesota Pollution Control Agency for further proceedings. Id. at 148. The doctrine of res judicata serves to bar an action where the prior proceedings have produced a final decision on the merits. G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 28, 36 S.Ct. 477, 60 L.Ed. 868 (1916); McDonnell v. United States, 455 F.2d 91, 96-97 (8th Cir. 1972); IB J. Moore, Federal Practice 10.409[1] at 1003-1004 (2d ed. 1974). The inconclusive and nonfinal decision in the ecological pollution case in the Minnesota courts does not warrant applying the doctrine of res judicata in the instant case. G. Amendments Under Fed.R.Civ.P. 15(b). ■ Reserve contends that the trial court abused its discretion in allowing Minnesota to amend its complaint April 22, 1974, in order to allege violations by Reserve of a number of .statutes and regulations relating to air emissions. Rule 15(a) specifically provides that permission to amend “shall be freely given [by the court] when justice so requires.” See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Where the trial court has authorized amendment, the standard of review by the court of appeals is abuse of discretion. E. g. Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242 (8th Cir. 1971); Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155-58 (2d Cir. 1968). In our review of the record, we find no abuse of discretion by the district court in permitting the amendments. H. Reserve’s Counterclaims. Reserve pleaded various counterclaims seeking compensation for the possible closing of its plant. The district court dismissed all counterclaims and Reserve appeals that dismissal arguing that the counterclaims were not fully litigated. The district court did not allow Reserve to present evidence supporting these claims but dismissed them as without merit in light of its findings in the main action. The counterclaims were not fully litigated. We cannot say at this time that Reserve cannot sustain any counterclaims on any state of the record as it may develop in the future. Reserve still operates its plant. It seeks the cooperation of the state and federal governments in obtaining a new on-land tail-ings disposal site. Its assertion of counterclaims is premature until the state or federal government takes improper action which forces Reserve to close. On remand, the judgment shall show the dismissals as without prejudice. VII. REMEDY As we have demonstrated, Reserve’s air and water discharges pose a danger to the public health and justify judicial action of a preventive nature. In fashioning relief in a case such as this involving a possibility of future harm, a court should strike a proper balance between the benefits conferred and the hazards created by Reserve’s facility. In its' pleadings Reserve directs our attention to the benefits arising from its operations, as found by a Minnesota state district court, as follows: In reliance upon the State and Federal permits as contemplated by [Reserve] and the agencies issuing the permits prior to such issuance [Reserve] constructed its plant at Silver Bay, Minnesota. [Reserve] also developed the Villages of Babbitt and Silver Bay and their schools and other necessary facilities where many of [Reserve’s] employees live with their families, as do the merchants, doctors, teachers and so forth who serve them. [Reserve’s] capital investment exceeds $350,000,000. As of June 30, 1970 [Reserve] had 3,367 employees. During the calendar year 1969, its total payroll was approximately $31,700,000; and it expended the sum of $27,400,000 for the purchase of supplies and paid state and local taxes amounting to $4,250,000. [Reserve’s] annual production of 10,000,000 tons of taconite pellets represents approximately two-thirds of the required pellets used by Armco and Republic Steel, the sole owners of Reserve, 15% of the production of the Great Lakes [ore] and about 12% of the total production of the United States. Between four and six people are supported by each job in the mining industry, including those directly involved in the mining industry and those employed in directly and indirectly related fields. [Reserve Mining Co. v. Minnesota Pollution Control Agency (Dist. Ct., Lake County, Dec. 1970), reproduced at A.l:261 and Supplement to Reserve’s Br. at 114.] We understand that plaintiffs do not deny these allegations. The district court justified its immediate closure of Reserve’s facility by characterizing Reserve’s discharges as “substantially” endangering the health of persons breathing air and drinking water containing the asbestos-like fibers contained in Reserve’s discharges. 380 F.Supp. at 16. The term “substantially” in no way measures the danger in terms of either probabilities or consequences. Yet such an assessment seems essential in fashioning a judicial remedy. Concededly, the trial court considered many appropriate factors in arriving at a remedy, such us a) the nature of the anticipated harm, b) the burden on Reserve and its employees from the issuance of the injunction, c) the financial ability of Reserve to convert to other methods of waste disposal, and d) a margin of safety for the public. An additional crucial element necessary for a proper assessment of the health hazard rests upon a proper analysis of the probabilities of harm. See Ethyl Corporation v. Environmental Protection Agency, No. 73-2205 (D.C.Cir., Jan. 28,1975) (dissenting op. at 10-19); Carolina Environmental Study Group v. United States, 510 F.2d 796, at 799 (D.C.Cir., Jan. 21, 1975). Cf. Society of Plastics Industry, Inc. v. Occupational Safety & Health Administration, 509 F.2d 1301 (2d Cir., Jan. 31, 1975), cert. denied,-U.S. -(1975), 95 S.Ct. 1998, 44 L.Ed.2d 482; Gelpe & Tar-lock, The Uses of Scientific Information in Environmental Decisionmaking, 48 S.Cal.L.Rev. 371, 412-427 (1974). With respect to the water, these probabilities must be deemed low for they do not rest on a history of past health harm attributable to ingestion but on a medical theory implicating the ingestion of asbestos fibers as a causative factor in increasing the rates of gastrointestinal cancer among asbestos workers. With respect to air, the assessment of the risk of harm rests on a higher degree of proof, a correlation between inhalation of asbestos dust and subsequent illness. But here, too, the hazard cannot be measured in terms of predictability, but the assessment must be made without direct proof. But, the hazard in both the air and water can be measured in only the most general terms as a concern for the public health resting upon a reasonable medical theory. Serious consequences could result if the hypothesis on which it is based should ultimately prove true. A court is not powerless to act in these circumstances. But an immediate injunction cannot be justified in striking a balance between unpredictable health effects and the clearly predictable social and economic consequences that would follow the plant closing. In addition to the health risk posed by Reserve’s discharges, the district court premised its immediate termination of the discharges upon Reserve’s persistent refusal to implement a reasonable alternative plan for on-land disposal of tail-ings. See discussion pp. 508-504 & note 14 supra. During these appeal proceedings, Reserve has indicated its willingness to deposit its tailings on land and to properly filter its air emissions. At oral argument, Reserve advised us of a willingness to spend 243 million dollars in plant alterations and construction to halt its pollution of air and water. Reserve’s offer to continue operations and proceed to construction of land disposal facilities for its tailings, if permitted to do so by the State of Minnesota, when viewed in conjunction with the uncertain quality of the health risk created by Reserve’s discharges, weighs heavily against a ruling which closes Reserve’s plant immediately- Indeed, the intervening union argues, with some persuasiveness, that ill health effects resulting from the prolonged unemployment of the head of the family on a closing of the Reserve facility may be more certain than the harm from drinking . Lake Superior water or breathing Silver Bay air. Furthermore, Congress has generally geared its national environmental policy to allowing polluting industries a reasonable period of time to make adjustments in their efforts to conform to federal standards. See, e. g., Federal Water Pollution Control Act, 33 U.S.C. § 1160 (1970); Clean Air Act, 42 U.S.C. §§ 1857c-5 to -8 (1970); National Environmental Policy Act, 42 U.S.C. § 4331 (1970). In the absence of an imminent hazard to health or welfare, any other program for abatement of pollution would be inherently unreasonable and invite great economic and social disruption. Some pollution and ensuing environmental damage are, unfortunately, an inevitable concomitant of a heavily industrialized economy. In the absence of proof of a reasonable risk of imminent or actual harm, a legal standard requiring immediate cessation of industrial operations will cause unnecessary economic loss, including unemployment, and, in a case such as this, jeopardize a continuing domestic source of critical metals without conferring adequate countervailing benefits. We believe that on this record the district court abused its discretion by immediately closing this major industrial plant. In this case, the risk of harm to the public is potential, not imminent or certain, and Reserve says it earnestly seeks a practical way to abate the pollution. A remedy should be fashioned which will serve the ultimate public weal by insuring clean air, clean water, and continued jobs in an industry vital to the nation’s welfare. The admonition of Chief Justice Burger, sitting as a circuit justice, in refusing a stay order in Aberdeen & Rockfish R.R. v. SCRAP, 409 U.S. 1207, 93 S.Ct. 1, 34 L.Ed.2d 21 (1972), is pertinent here: Our society and its governmental in-strumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps. These developments, however praiseworthy, should not lead courts to exercise equitable powers loosely or casually whenever a claim of “environmental damage” is asserted. * * * The decisional process for judges is one of balancing and it is often a most difficult task. [Id at 1217-1218, 93 S.Ct. at 7.] Reserve must be given a reasonable opportunity and a reasonable time to construct facilities to accomplish an abatement of its pollution of air and wáter and the health risk created thereby. In this way, hardship to employees and great economic loss incident to an immediate plant closing may be avoided. See Georgia v. Tennessee Copper Co., 206 U.S. 280, 239, 27 S.Ct. 618, 51 L.Ed. 1038 (1907); United States v. City and County of San Francisco, 23 F.Supp. 40, 53 (N.D.Cal.1938), rev’d, 106 F.2d 569 (9th Cir. 1939), rev’d (aff’g district court), 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940); see also Transcontinental Gas Pipe Line Corp. v. Gault, 198 F.2d 196, 198 (4th Cir. 1952). We cannot ignore, however, the potential for harm in Reserve’s discharges. This potential imparts a degree of urgency to this case that would otherwise be absent from an environmental suit in which ecological pollution alone were proved. Thus, any authorization of Reserve to continue operations during conversion of its facilities to abate the pollution must be circumscribed by realistic time limitations. Accordingly, we direct that the injunction order be modified as follows. A. The Discharge Into Water. Reserve shall be given a reasonable time to stop discharging its wastes into Lake Superior. A reasonable time includes the time necessary for Minnesota to act on Reserve’s present application to dispose of its tailings at Milepost 7 (Lax Lake site), see p. 506 supra, or to come to agreement on some other site acceptable to both Reserve and the state. Assuming agreement and designation of an appropriate land disposal site, Reserve is entitled to a reasonable turnaround time to construct the necessary facilities and accomplish a changeover in the means of disposing of its taconite wastes. We cannot now precisely measure this time. Minnesota must assume the obligation of acting with great expedition in ruling on Reserve’s pending application or otherwise determining that it shall, or that it shall not, afford a site acceptable to Reserve. We suggest, but do not determine, that with expedited procedures a final administrative decision should be reached within one year after a final appellate decision in this case. Upon receiving a permit from the State of Minnesota, Reserve must utilize every reasonable effort to expedite the construction of new facilities. If the parties cannot agree on the duration of a reasonable turn-around time, either party may apply to the district court for a time-table which can be incorporated in the injunction decree, subject to our review. Should Minnesota and Reserve be unable to agree on an on-land disposal site within this reasonable time period, Reserve, Armco and Republic Steel must be given a reasonable period of time thereafter to phase out the Silver Bay facility. In the interests of delineating the rights of the parties to the fullest extent possible, this additional period of time is set at one year after Minnesota’s final administrative determination that it will offer Reserve no site acceptable to Reserve for on-land disposal of tailings. If at any time during negotiations between Reserve and Minnesota for a disposal site, the United States reasonably believes that Minnesota or Reserve is not proceeding with expedition to facilitate Reserve’s termination of its water discharge, it may apply to the district court for any additional relief necessary to protect its interests. Nothing in this opinion shall be construed as prohibiting the United States from offering advice and suggestions to both Reserve and the State of Minnesota concerning the location of the site or the construction of the on-land disposal facilities. B. Air Emissions. Pending final action by Minnesota on the present permit application, Reserve must promptly take all steps necessary to comply with Minnesota law applicable to its air emissions, as outlined in this opinion. Reserve, at a minimum, must comply' with APC 1 and 5. Furthermore, Reserve must use such available technology as will reduce the asbestos fiber count in the ambient air at Silver Bay below a medically significant level. According to the record in this case, controls may be deemed adequate which will reduce the fiber count to the level ordinarily found in the ambient air of a control city such as St. Paul. We wish to make it clear that we view the air emission as presenting a hazard of greater significance than the water discharge. Accordingly, pending a determination of whether Reserve will be allowed to construct an on-land disposal site or will close its operations, Reserve must immediately proceed with the planning and implementation of such emission controls as may be reasonably and practically effectuated under the circumstances. We direct that the injunction decree incorporate If B2 of the stipulation between Reserve and Minnesota relating to air emissions, reading as follows: However, if following final court or administrative agency action relating to the existing discharge to Lake Superior, Reserve decides to substantially suspend or reduce, or to discontinue, its pelletizing operations at Silver Bay then Reserve, upon giving reasonable notice, shall be relieved from further implementation of the compliance program scheduled in this Stipulation, provided that the Agency may reasonably retain such conditions of this Stipulation, or reasonably impose such other or modified conditions as may be appropriate in connection with such suspension, reduction or discontinuance of operations. [A.l:203.] Assuming that Reserve is granted the necessary permits to build an on-land disposal site, the existing stipulation between Minnesota and Reserve relating to air emissions, subject to modification because of litigation delay to this date, shall serve as a general guideline for time requirements on air controls. If the parties are unable to come to an accord for a time-table for installation of emission controls based upon the stipulation agreement, either Minnesota or Reserve may apply to the district court for an appropriate order to supplement the injunction decree in conformity with the views expressed here. We reserve jurisdiction to review any such supplemental order. C. Additional Directions. We believe some additional directions will be helpful to the district court in fashioning its decree in conformity with this opinion. The matters of furnishing Reserve with an on-land disposal site and issuing necessary permits relevant to the air and water discharges are governed by provisions of. Minnesota state law. See Minn.Stat. Ann. §§ 116.07(4a) and 115.05 (Supp. 1974). The resolution of the controversy over an on-land disposal site does not fall within the jurisdiction of the federal courts. Moreover, it follows that neither Michigan, Wisconsin, nor the environmental groups have any right of participation in that decision-making process except as may be otherwise provided by Minnesota law. Although we requested the district court to resolve all issues before it, the court, reserved the question of possible fines and penalties against Reserve, stating that the Court has some discretion in the matter and it is this Court’s view that it is not in a position to evaluate the equities until it is apprised of the course of action defendants must take in order to come into compliance with applicable law. [Order of Oct. 18 at 19.] Unfortunately, it is possible that some parties may read this statement as a veiled threat that, if Reserve closes its plant rather than acquiesces to Minnesota’s proposals for an on-land site for tail-ings disposal which Reserve deems unsuitable, the district court will levy substantial fines and penalties against it. While we are quite sure the district court intended no such implication and would not use its judicial power for such an improper purpose, we believe it is proper to comment that Reserve is free to close its operation if it cannot practicably meet Minnesota’s requirements for an on-land disposal site without the fear of substantial fines and penalties being levied against it because of this election. Upon remand, we suggest that the district court request Dr. Brown to advise the court concerning new scientific or medical studies which may require a reevaluation of the health hazard (either as more or less serious than as apprehended during this lawsuit) attributable to Reserve’s discharges. A similar request should also be posed to Dr. Seli-koff and his group of researchers. Either party may apply for a modification of the time requirements' specified herein should significant new scientific information justify a reassessment of the hazard to public health. Additionally, the district court should take proper steps to ensure that filtered water remains available in affected communities to the same extent as is now provided by the Corps of Engineers, although not necessarily at the expense of the Corps. Finally, this court deems it appropriate to suggest that , the national interest now calls upon Minnesota and Reserve to exercise a zeal equivalent to that displayed in this litigation to arrive at an appropriate location for an on-land disposal site for Reserve’s tailings and thus permit an important segment of the national steel industry, employing several thousand people, to continue in production. As we have already noted, we believe this controversy can be resolved in a manner that will purify the air and water without destroying jobs. The existing injunction is modified in the respects stated herein. This case is remanded to the district court for the entry of a decree in accordance with our directions and for such further proceedings consistent with this opinion as may be just and equitable. ORDER ON REMAND For reasons stated below, we find it necessary to issue this special order on remand to protect the integrity of the processes of this court. We filed our detailed and carefully drawn, unanimous en banc opinion in these cases on March 14, 1975. Although these cases remained exclusively in our jurisdiction subject to any request for reconsideration by any of the parties, see Fed.R.App.P. 40, and before issuance of any mandate, the district court called the parties and other persons together for a hearing the very next day, March 15, 1975. After learning of this hearing through news dispatches published in the daily press, we requested that the clerk of the district court furnish each member of the en banc court with a transcript of the hearing. We have reviewed this transcript. We can only characterize the district court proceedings of March 15 as irregular. Indeed, since no mandate had yet been issued from this court to the district court, the various orders, directions to parties, suggestions to the Governor of Minnesota, members of Congress, and the Minnesota State Legislature, and all other actions taken by the trial judge at these proceedings are a complete nullity. Until we issue our mandate, the district court lacks jurisdiction over these cases. See, e.g., G & M, Inc. v. Newbern, 488 F.2d 742, 746 — 47 (9th Cir. 1973);. see also Bailey v. Henslee, 309 F.2d 840, 844 (8th Cir. 1962). We have an additional concern over the actions of the district court judge at that hearing. The judge initiated steps which appear to be in conflict with the express language of this court’s opinion of March 14, 1975. Moreover, the district court judge and counsel for certain of the plaintiffs suggested in that hearing that Reserve Mining Company will be able to continue its present discharges for seven to ten years as a consequence of our modification of the district court’s injunction. We made no such prediction nor authorized any unnecessary delay in abatement of air and water discharges. We recognize that by March 15 insufficient time had elapsed from the issuance of our opinion for the district court judge and counsel to study and reflect on all matters covered in it. This lack of time may explain but it does not excuse conduct, statements, or requests for and the issuance of orders contrary to this court’s opinion. Because of the nature of the March 15 proceedings, we deem it necessary to advise the trial judge and counsel for all parties, including intervenors, that they must respect the letter and spirit of our opinion as incorporated in the mandate of this court. See In re Potts, 166 U.S. 263, 267-68, 17 S.Ct. 520, 41 L.Ed. 994 (1897); Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940); Goldwyn Pictures Corp. v. Howells Sales Co., 287 F. 100, 102-03 (2d Cir. 1927); see also Sibbald v. United States, 37 U.S. (12 Pet.) 487, 492-95, 9 L.Ed. 1167 (1838). Neither the district court nor any party is free to ignore our determinations, including the determination that “[t]he resolution of the controversy over an on-land disposal site does not fall within the jurisdiction of the federal courts[,]” opinion of March 14, 1975 at 539. We think it inappropriate to characterize such a determination as “advisory” or dictum. [Mar. 15 Tr. at 43.] Until modified by us or reversed or modified by the Supreme Court, our opinion governs the rights and obligations of the parties and all intervenors. We expect and insist that our mandate be carried out promptly, fairly, efficiently, and without deviation from its letter and spirit. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 136, 142-43, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). Furthermore, the district court judge should not interfere in matters concerning the parties which lie outside his jurisdiction in these cases. Finally, we believe it is appropriate to caution counsel that although each may be an adversary with regard to opposing parties, all serve as officers of the court and all are bound to respect and follow the law as laid down by a final appellate judgment in this case. We direct that a copy of this order be incorporated into and made a part of the judgment on remand. . Reserve Mining Company is a jointly owned subsidiary of Armco Steel Corporation and Republic Steel Corporation. The district court joined these parent corporations as parties to this lawsuit at an advanced state of the litigation. The propriety of this joinder is raised on appeal and discussed in part VI of our opinion. Generally we shall make reference only to Reserve, the original defendant. The following environmental groups intervened as plaintiffs on June 15, 1972, by order of the district court: The Minnesota Environmental Law Institute, the Northern Environmental Council, the Save Lake Superior Association, and the Michigan Student Environmental Confederation. United States v. Reserve Mining Co., 56 F.R.D. 408 (D.Minn.1972). The Environmental Defense Fund intervened pursuant to the court’s order of July 31, 1973, and the Sierra Club has filed an amicus curiae brief on behalf of the plaintiffs. Numerous parties have intervened as defendants. They include the Northeastern Minnesota Development Association, the Duluth Area Chamber of Commerce, the Towns of Silver Bay, Babbitt, and Beaver Bay, and several other civic and governmental units in the area of the Reserve facility. The United Steelworkers of America has submitted an amicus curiae brief on behalf of the defendants. . The permit provides in part: [T]ailings shall not be discharged * * * so as to result in any material adverse effects on fish life of public water supplies or in any other material unlawful pollution of the waters of the lake * * *. . Minnesota granted the permit based on Reserve’s theory that the weight and velocity of the tailings as they are discharged from the plant into the lake would ensure deposit of the tailings in the 900 foot depth of the “great trough” area offshore from the proposed facility- . The Silver Bay processing operation employs about 3,000 workers and is central to the economic livelihood of Silver Bay and surrounding communities. . See Reserve Mining Co. v. Minnesota Pollution Control Agency, 294 Minn. 300, 200 N.W.2d 142 (1972). . Section 407 is also known as the Refuse Act. . Unless otherwise noted, all references to the FWPCA are to the statute as it existed prior to the 1972 amendments. The 1972 amendments, Pub.L. No. 92-500, 86 Stat. 816 (Oct. 18, 1972), amended and reorganized the FWPCA. The current FWPCA is now codified at 33 U.S.C. § 1251 et seq. (Supp.1974). The district court found that “[p]ursuant to § 4(a) of P.L. 92-500, the 1972 amendments have no effect on actions pending prior to the effective date of the amendments.” 380 F.Supp. at 23 n. 1. The 1972 amendments were passed on October 18, 1972, some eight months subsequent to the initiation of this suit. . Amphibole denotes the mineral family made up by silicates of calcium and magnesium and, usually, one or more other metals (such as iron or manganese). Cummingtonite-grunerite is a general name for a “suite” of amphibole minerals which are essentially identical except for the relative quantities of iron and magnesium in them. The iron-rich members are sometimes referred to as grunerites, although the word cummingtonite is used to refer to the entire suite. . The cummingtonite-grunerite in Reserve’s mine was formed when molten igneous rock, now known as the Duluth gabbro, intruded upon and heated a portion of the iron formation of the eastern Mesabi Range, thereby chemically altering it. When this gabbro contacted the iron deposits of the eastern district of the Range it caused the creation of several new minerals and produced a coarsening of grain size of pre-existing minerals such as magnetite and quartz. Among the new minerals formed were several amphiboles, including cummingtonite-grunerite. The intrusion of igneous rock and resulting metamorphism of the iron formation extend in a strip about a mile wide and 15 miles long. [A.4:12-13.] . See note 3 supra. . United States v. Reserve Mining Co., 380 F.Supp. 11, 15 (D.Minn.1974). . United States v. Reserve Mining Co., 380 F.Supp. 11, 21 (D.Minn.1974). . Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974). . The court observed that it would like to find a middle ground that would satisfy both considerations. If an alternate method of disposal is available that is economically feasible, could be speedily implemented and took into consideration the health questions involved, the Court might be disposed to fashion a remedy that would permit the implementation of such a system. However, if there is no alternative method available, the Court has no other choice but to immediately curtail the discharge and stop the contamination of the water supply of those downstream from the plant. [380 F.Supp. at 17-18.] . We stated: Accordingly, our stay of the injunction will be conditioned upon Reserve taking prompt steps to abate its discharges into air and water. We invited Reserve to advise this court concerning plans for the on-land disposal of its tailings and the significant control of its air emissions. Reserve’s counsel stated that the company envisioned a three and one-half year to five year “turn-around” time, but added that investigation continues in an effort to reduce further the time for achieving abatement. Our stay of the injunction rests upon the good faith preparation and implementation of an acceptable plan. Therefore, we grant a 70-day stay upon these conditions: 1) Reserve’s plans shall be promptly submitted to plaintiff-states and to the United States for review and recommendations by appropriate agencies concerned with environmental and health protection. Such plan shall be filed with the district court and submitted to all plaintiffs in no event later than 25 days from the filing of this order. 2) Plaintiffs shall then have an additional 20 days within which to file their comments on such plan. 3) The district court shall consider Reserve’s plan and any recommendations made by the United States and plaintiff-states and make a recommendation, within 15 days following submission of plaintiffs’ comments, whether or not a stay of the injunction should be continued pending the appeal. 4) Based on these plans, comments, and recommendations, this court will then review the status of its stay order within the time remaining. [498 F.2d at 1085-1086 (footnotes omitted).] . United States v. Reserve Mining Co., 380 F.Supp. 11, 71 (D.Minn.1974). . By letter to this court dated December 23, 1974, Wisconsin abandoned this appeal. Accordingly, we dismiss this appeal. . Dr. Arnold Brown is Chairman of the Department of Pathology and Anatomy at the Mayo Clinic of Rochester, Minnesota. He served the court both in the capacity of a technical advisor and that of an impartial witness. . We also suggested that plaintiffs would prevail in their claim that the discharges, apart from any danger to health, constituted unlawful pollution subject to abatement. In this case we find it necessary to discuss pollution only with respect to its possible adverse health effects. . While we, of course, adhere to the “clearly erroneous” standard in our review of district court findings, we note that many of the issues in this case do not involve “historical” facts subject to the ordinary means of judicial resolution. Indeed, a number of the disputes involve conflicting theories and experimental results, about which it would be judicially presumptuous to offer conclusive findings. In addressing this same type of problem, the District of Columbia Circuit recently observed: Where * * * the [EPA] regulations turn on choices of policy, on an assessment of risks, or on predictions dealing with matters on the frontiers of scientific knowledge, we will demand adequate reasons and explanations, but not “findings” of the sort familiar from the world of adjudication. [Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 741 (D.C.Cir.1974).] In such circumstances, the finder of fact must accept certain areas of uncertainty, and the findings themselves cannot extend further than attempting to assess or characterize the strengths and weaknesses of the opposing arguments. As Judge Wright observed in dissent in Ethyl Corporation v. Environmental Protection Agency, No. 73-2205 (D.C.Cir. filed Jan. 28, 1975) (dissenting opinion n. 74), “ * * the court should [not] view itself as the equivalent of a combined Ph.D. in chemistry, biology, and statistics.” If our review seems unusually detailed, then, it is because we have endeavored to carefully explain the delicate balance of many of the issues in this case. While generally we do not find error in the underlying findings of the district court, we believe that an appreciation of the risk posed by Reserve’s discharge demands an understanding of the state of scientific knowledge upon which those findings are based. . “Excess” cancer deaths refers to an incidence of observed cancer deaths among a segment of the population exposed to a certain agent greater than that expected from a general population not similarly exposed. The expected incidence of cancer is usually determined by reference to national cancer statistics. . Asbestosis, a respiratory disease, is a diffuse scarring of the lung resulting from the inhalation of asbestos dust. . Dr. Irving Selikoff is Director of the Environmental Sciences Laboratory of Mt. Sinai School of Medicine. He is a nationally recognized authority in asbestos-induced disease and occupational diseases generally. . A threshold value is that level of exposure below which no adverse health effects occur, while the dose response relationship quantifies the association between disease-producing levels of exposure and the incidence of disease. . Reserve presented testimony by several scientists supporting the proposition that the threshold level of asbestos exposure with respect to lung cancer and asbestosis is reasonably well established. Dr. Hans Weill, a Professor of Medicine at Tulane University School of Medicine, testified that his study of asbestos workers exposed for a mean period of 17.3 years indicated that asbestosis does not develop where the concentration of fibers is only five fibers per cc. [A.16:29-30.] Dr. Weill went on to review a series of epidemiological studies also suggesting the existence of a threshold level of exposure for lung cancer. [A. 16:33-36.] Moreover, he reasoned that the value of this threshold would not be any lower than that applicable to the development of asbestosis, and thus is at least five fibers per cc. [A. 16:43^14.] Dr. Paul Gross, Professor of Pathology at the University of South Carolina Medical School, likewise viewed these epidemiological studies as establishing a threshold level of exposure for lung cancer. [A. 15:33-35.] On cross-examination, plaintiffs challenged the interpretations of Doctors Weill and Gross, noting various deficiencies in the methodologies of the studies. [A.15:41-44; A.16:37-39.] For example, the testimony indicated that one of the studies had not tracked the workers for a sufficient period of time to determine whether cancer might develop, and that in fact a follow-up study indicated excess cancer deaths after 25 years in even low exposure groups. [A. 16:38.] Moreover, plaintiffs’ witnesses held firm opinions that although threshold levels probably exist, those levels could not be considered as authoritatively established. [A.10:133-35 (Wagoner); A.10:317-318 (Seli-koff); A. 13:285-89 (Rankin).] It is significant that the witnesses generally agreed that no known safe level of exposure exists for mesothelioma. The agreement on this point seems a reflection of the weight given to the studies showing an association between mesothelioma and residence in proximity to an asbestos mine or mill or in the household of an asbestos worker. See note 26 infra. . Dr. Selikoff described some of this research. A study of mesothelioma victims in the northwestern portion of Cape Province, South Africa, in an area where there are many crocidolite asbestos mines and mills, found that in approximately one-half the deaths the only asbestos exposure was that resulting from residence in an area where there was a mine or mill. [A.10:244-245.] A study of me-sothelioma victims in Hamburg, Germany, showed rates of mesothelioma of nine per ten thousand and one per ten thousand in two districts which had an asbestos factory, and no occurrence of the disease in the one district without such a factory. A study of 76 cases of mesothelioma drawn from the files of a London hospital showed that, of 45 victims who had not worked with asbestos, nine had simply lived in the household of an asbestos worker, 11 had lived within one-half mile of an asbestos plant. Finally, a study of 42 mesothelioma victims drawn from the files of the Pennsylvania Department of Health revealed that, of 22 victims who had not been occupationally exposed, three had lived in the household of an asbestos worker and eight had lived within one-half mile of an asbestos plant. [A. 10:245-47.] Additionally, Dr. Selikoff reported on several studies of shipyard workers. These studies indicated excess mesothelioma not only among the shipyard insulation workers dealing directly with asbestos, but also among the occupational groups working in proximity with the insulation workers. [A.10:254-62.] . Dr. Selikoff stated: I would now like to turn to the problem at hand, the question of environmental exposure. And relate what I have just given you from occupational sources to environmental sources. And here we’re on much less firm ground. The cohort studies that were done and are much more readily and easily done among workers, are not readily done in the general population. You cannot identify people who, twenty, thirty, forty years ago breathed asbestos from environmental contamination and compare them with people who you can prove forty years ago didn’t breath asbestos from environmental sources. And, therefore, much of the evidence that I will now' place before you is a little unusual. [A. 10:243.] . Plaintiffs’ witness Dr. William Nicholson, Associate Professor of Community Medicine at the Mt. Sinai School of Medicine, testified that 95 percent of the fibers identified, both in the air and in the water, were less than five microns in length. [A.8:257.] . Dr. John M. G. Davis, head of the pathology branch of the Institute of Occupational Medicine in Edinburgh, Scotland, described several experiments in which tumor production among laboratory animals was reduced when researchers shortened the fibers to which the animals were exposed. [A.16:141-142.] Dr. George Wright, a former professor at the University of Rochester Medical School, concluded that there was a “cut off” value for fiber length below which mesothelioma could not be induced in experimental animals by intrapleural injection. [A.16:342-343.] Plaintiffs objected to these studies on the ground that generally a “milling process” is used to obtain the needed short fibers, and that through this process the original character of the fibers may be lost. Reserve witness Dr. Davis agreed that the effects of this milling are as yet unresolved. [A.16:207.] . For example, Dr. Selikoff testified to a study in which one group of rats was exposed to chrysotile fibers where only one percent of the fibers were longer than three microns, and a second group was exposed to fibers where five percent of the fibers were longer than five microns. In both groups, 40 percent of the animals eventually developed mesothelioma, although tumors took longer to develop in the group exposed to the shorter fibers. [A.1L19-21.] Reserve generally objected to plaintiffs’ studies on the ground that the experimental methodology involved did not sufficiently isolate small fibers. [A.15:98-100.] . The standard set by the Secretary of Labor for permissible occupational exposure to asbestos is drawn in terms of fibers in excess of five microns in length. A dispute surfaced at the trial whether this standard should be read as endorsing the safety of fibers less than five microns. The district court ruled in the negative. Two participants, in the formulation of the standard, Dr. Selikoff and Dr. Wagoner, testified that the five micron limit reflected primarily a technological consideration since local laboratories do not possess the equipment to count fibers of a lesser length. [A. 10:324-26, 104-105, 171.] . Dr. Brown testified that, in his view, “fibers less than five microns are just as dangerous as those over five microns * * [A.23.T53.] A report by the National Academy of Sciences concluded: “There is, however, no body of knowledge that permits the assigning of relative risk factors to fibers in the electron microscope range compared with fibers in the light microscope range.” [A.1L10.] . Dr. Taylor is head of the Medical Research Statistics Section at the Mayo Clinic. He has been a consulting statistician in medical and biological research and a Professor of Biosta-tistics. . The fiber concentration found was 0.0626 fibers per cc, with a 95 percent confidence interval of from 0.0350 to 0.900 fibers per cc. (Although we indicated in the stay opinion that this count, like the other fiber counts, is subject to a nine-fold margin of error, 498 F.2d at 1078 n. 7, Dr. Taylor’s testimony indicates that this particular calculation, embodying as it does the average of several readings, is subject to the lesser margin of error indicated above). It is significant that this concentration, even at its upper range, is far below the legally permissible level for occupational settings, and, thus, obviously below those levels typically associated with occupational exposure to asbestos. Dr. Taylor warned that his Silver Bay computation, based on only several days of sampling during a particular time of the year, could not be extrapolated to represent the average annual burden of fibers in the air of Silver Bay. [A.23:132^U.] . The district court stated: * * * It is sufficient if one knows the number ranges between 1,620 fibers per cubic meter and 140,000,000, and that any particular count may be off by a factor of ten. One fact, however, cannot be denied. There is a significant burden of amphibole fibers from Reserve’s discharge in the air of Silver Bay. [380 F.Supp. at 49-50.] . In commenting on the possibility of extrapolating the disease experience of occupational workers to the situation presented by Reserve’s operations, Dr. Selikoff commented: Now, does this mean this is going to happen to people who drink or inhale dust from Reserve? Not at all. It doesn’t mean this, because this is a different kind of exposure. But it does get important, it does show what can happen with amosite in these circumstances. [A.10:279 (emphasis added).] . See note 26 supra. . For example, Dr. Arthur Langer, Associate Professor of Mineralogy at the Mt. Sinai School of Medicine, testified that 15 of 30 am-phibole particles present in an air sample taken at Reserve’s facilities in Silver Bay were cummingtonite-grunerite. Of these 15, 14 were consistent with amosite asbestos, and of these 14 “a good number” were identical with amosite. [A.9:312.] . Plaintiffs’ witness Dr. Nicholson reported some sample counts to the court which measured the level of all amphibole fibers present. [A.8:31-32, 121-24, 182-90.] The district court evidenced some concern on this point: The Court: I am having a little trouble in figuring out why you are counting amphi-boles. It could bp actinolite, tremolite, an-thophyllite or cummingtonite-grunerite, or some other amphibole that I maybe never heard or. Has he [Dr. Nicholson] conducted further tests to prove that they are cum-mingtonite-grunerite? Mr. Hills [attorney for the United States]: ****** With the electron diffraction pattern you determine the crystalline structure which determines amphibole. With the SEM [scanning electron microscope] you can go further and get the exact chemical composition. The Court: That is right. Have we done that in this instance? Mr. Hills: I don’t believe so in this instance. The Witness [Dr. Nicholson]: No. These fibers were not subjected to the analysis of the scanning electron microscope. * * * * * * The Court: * * * My inquiry was directed to the question — up until this point the emphasis of the Government’s case has been on the studies on amo-site and the similarity of amosite to gruner-ite. This is the first time, as I recall, that you have said that other amphiboles are carcinogenic. And you may be able to establish that. But I was wondering what was the significance of putting in other amphiboles without designating them as cummingtonite grunerite? [A.8:124-26.] . There is some evidence that the various forms of asbestos differ in pathogenicity. Reserve witness Dr. William Smith, Director of the Health, Research Institute at Fairleigh-Dic-kinson University, testified that tremolite, although implicated as a carcinogen in studies of talc miners, did not induce tumors in experimental animals. [A. 15:247.] Reserve witness Dr. Wright testified that the British view croci-dolite' asbestos as a particularly hazardous agent and the British standard for crocidolite exposure is one-tenth of that established for chrysotile or amosite. [A.16:322.] Dr. Seli-koff noted that there are many amphibole minerals, but that few have been studied for their effects upon health. He expressed doubt about the carcinogenicity of tremolite. [A. 10:266-267.] The report of the National Academy of Sciences concludes that such differences are not clearly understood and that no type of asbestos can be regarded as free from hazard. [A.15:134.] This view was endorsed by Reserve witness Dr. Gross. [M] We think the district court proceeded correctly in relying on the National Academy report and concluding that no type of asbestos could be deemed safe. However, we note, too, that the discharge of fibers dissimilar from amosite adds further uncertainty to equating the likely health consequences from Reserve’s discharge with that found in certain other occupational situations. . Dr. Frederick D. Pooley is a world renowned scientist from Cardiff, Wales, Great Britain, and an expert in the field of identifying physical and chemical properties of asbestos and asbestos-like fibers. Dr. Selikoff, plaintiffs’ expert, described Dr. Pooley as the “one man who has competence and knowledge in this matter,” i. e., the scientific examination of tissue for the presence of asbestos or asbestos-like fibers. . Dr. Brown did not discount the study because of the limited number of sections that had been obtained: * * * I have to go on the data as presented. I think it was a reasonable case. I would have preferred many more sections. I recognize the fact that no such fibers were found to my satisfaction doesn’t foreclose the possibility that such fibers exist. I recognize. that as a possibility. But for the present I have to assume that fibers aren’t there until I see them. [A.23:311-312.] . As Dr. Brown testified: It [the tissue study] does tell me that it is not an emergency situation, and that’s about as far as I can go. [A.23:209.] . George E. Westlake, Holland J. Spjut, and Marilyn N. Smith, “Penetration of Colonic Mucosa by Asbestos Particles in Rats, Fed Asbestos Dust,” 14 Laboratory Investigation 2029. . Pontrefact and Cunningham, “Penetration of Asbestos Through the Digestive Tract of Rats,” 243 Nature 352 (1973). . We note from the record that while attempts to induce tumors in experimental animals through the inhalation of fibers have succeeded, attempts to induce tumors by ingestion have generally failed. [A.15:218-21; A. 17:1-21.] Reserve witness Dr. Smith ventured the opinion, based on such studies, that there is no proof that the ingestion of fibers causes cancer in man. [A. 15:257.] The failure to induce animal tumors by ingestion cannot be dispositive on the issue of whether the ingestion of fibers poses a risk to humans. This is because, as a general matter, animal cancer susceptibility is not directly equivalent to human experience, and, more particularly, because the studies so far undertaken may be criticized for various shortcomings in experimental design. Thus, one of Reserve’s own witnesses, Dr. Wright, testified that at least one of the studies may be criticized for using too few animals over too brief an experimental time. [A.17:4J . When asked his opinion as to whether the ingestion of asbestos can cause cancer, Dr. Brown responded: * * * I believe the evidence is probably good enough for me to draw the conclusion that it is likely that one could expect an increased incidence of cancer of the gastrointestinal tract in occupationally exposed people. [A.23:156.] . Some evidence indicated that the fiber counts in water were approximately one million times higher than those obtained in the air. [A.23:55.]. Average fiber counts computed by Dr. Taylor did show that the concentration of amphibole fibers decreased as one moved away from Reserve’s Silver Bay facilities, thus supporting plaintiffs’ theory of dispersion. [A.23:54-55.] The district court found that Reserve’s discharge is largely responsible for the presence of these fibers in the waters along the north shore of the western arm of Lake Superior. As with the air counts, the water counts apparently include all types of amphiboles, only some of which are consistent with amo-site asbestos. Thus, for example, Reserve witness Dr. Champness testified that samples of water taken from Two Harbors, Duluth and Reserve’s density current showed that the number of amphibole fibers with roughly the chemistry of amosite ranged from 13 to 34 percent. [A. 19:5.] Plaintiffs’ witness Dr. Lan-ger testified that 47 percent of the fibers present in Duluth tap water were cumming-tonite-grunerite and 8-9 percent of these fibers were in turn consistent with amosite. [A.9:314-315.] . “The Court finds, consistent with the Court’s study of amphibole fiber concentrations in the water supplies of Beaver Bay, Two Harbors and Duluth, that on the 28th of August, 1973, in the samples analyzed by seven laboratories that the mean fiber concentrations were: 12.5 million fibers per liter in the public water system at Duluth * * 380 F.Supp. at 48. . Since Lake Superior affords water supplies to an estimated 200,000 people of Duluth and other North Shore Minnesota municipalities, as well as Superior, Wisconsin, we think it is essential that the facts regarding the present disease .effects of the discharge be accurately stated. As our review below demonstrates, we conclude that there is no evidence on a scientific or medical basis showing that Duluth residents experience an excess rate of cancer attributable to Reserve’s discharge. The district court in its discussion “Present Effects of Discharge,” 380 F.Supp. 53-54, implies that cancer statistics show an initial harm to Duluth residents attributable to the fiber contamination of Lake Superior. While the district court made no explicit findings in this regard, the court observed: A great deal of information about the cancer experience of the people of Duluth is available as a result of an ongoing study by the National Cancer Institute. It is too early to attach any real significance to the negative cancer experience of the City of Duluth due to Reserve’s discharge. It should be pointed out that Duluth residents do not at this time enjoy a fortunate position with respect to the cancer experience for the entire state of Minnesota. There is at this time a statistically significant excess of rectal cancer with an increasing trend. Dr. Thomas Mason, a statistician for the National Cancer Institute, testified that for the period from 1965 to 1969, being the most recent period available for epidemiological study, Duluth had fifty-two extra deaths from cancer compared to mortality rates from the State of Minnesota. Of these, eleven deaths are attributable to the stomach, large intestine and rectum. [380 F.Supp. at 54.] Moreover, the district court suggests that Dr. Brown did not consider recent statistical studies in reaching his conclusion that no increase in cancer attributable to Reserve’s discharge could be predicted. 380 F.Supp. at 51 n. 34. We have carefully undertaken a review of the statistical evidence bearing on the question of whether Duluth residents are presently experiencing an excess incidence of cancer. Two studies are of particular relevance. The first, conducted by Dr. Thomas Mason, a staff statistician for the National Cancer Institute, analyzed Duluth cancer rates for the years 1950-69. Duluth rates were compared to rates in Hennepin County (Minneapolis) and the State of Minnesota as a whole for five-year periods beginning in 1950 and ending in 1969. The study attempted to isolate any increase in cancer occurring in. both men and women and appearing in the 1960’s (preferably the late sixties). The focus on increases during the sixties reflected the assumption that any cancer attributable to Reserve’s discharge might demonstrate the “lag” phenomenon evident in occupational exposure to asbestos dust. Only cancer of the rectum showed an increase among both men and women during the period 1965-1969. Although this increase was significant, Dr. Mason concluded that the excess was attributable to chance (or, at the least, not attributable to Reserve’s discharge). [Tr. 17,-116.] This conclusion was premised on the absence of a theoretical link between the ingestion of asbestos and an isolated increase in rectal cancer; indeed, the occupational studies show that the excess cancers attributable to ingestion occur principally in the upper gastrointestinal tract, with only a slight increase in cancer of the rectum. [Tr. 17,116.] The Duluth státistics reveal no significant excess gastrointestinal cancer apart from the rectal increase. A second study, conducted by Dr. Barry S. Levy, an epidemiologist assigned to the Minnesota Department of Health by the U. S. Department of Health, Education, and Welfare, covered the years 1969-1972. Simply stated, it found no excess gastrointestinal cancer among Duluth residents. Dr. Brown stated during the course of the trial: Scientifically and medically I see no evidence for an increased incidence of cancer in those communities [Duluth, Silver Bay, and the other North Shore communities] that could be attributed to the presence of asbestos fibers in air or water. [A.23:22 (emphasis added, spelling corrected).] During his post-trial deposition, Dr. Brown restated his earlier conclusion, making particular reference to the Levy study: “This paper [the Levy study] completely supports that [earlier] view.” [Brown dep. at 30.] Editor’s Note: The judgment and opinions were vacated by order of March 17, 1975, granting rehearing en banc. . Section 211(c)(1)(A) of the Clean Air Act, 42 U.S.C. § 1857f-6c(c)(l)(A) (1970), authorizes the Administrator of the Environmental Protection Agency to regulate a fuel or fuel additive “if any emission products of such fuel or fuel additive will endanger the public health or welfare * * . This order has not been published and will hereafter be referred to as the Order of October 18, 1974. . The complaints of the Environmental Defense Fund and the other private intervening plaintiffs allege that Reserve’s discharge into the air creates a public nuisance subject to abatement under federal common law. [A.2:140.] We also reject the nuisance claim raised by these plaintiffs. See note 54 infra. . Only sparse evidence supports this finding. The court’s study of air samples encompassed only the level of fibers in Silver Bay as compared with the level of fibers in the control city of St. Paul. Although, as noted previously, testimony established that the average level of all five sites in Silver Bay was significantly greater than the level of fibers in St. Paul, the level at two of the Silver Bay sites, considered individually, was not significantly greater than that of the control city. [A.23:98.] Thus, even as to Silver Bay itself, the immediate area of the discharge, at some sites no statistically significant burden of excess fibers was present. Plaintiffs have not succeeded in showing any significant excess level of fibers outside of Silver Bay. Plaintiffs’ witness Dr. Nicholson took several air samples in Duluth, and concluded: * * * The sampling periods were fairly short. The density of material on the filters was limited, and in the circumstances it really did not seem profitable to exp-end that much additional effort to obtain more than these preliminary results. They indicate that amphibole-type fibers can — that is, taking all of them together — that amphibole-type fibers can be found in the air of Duluth, but the amount are in number and mass not what one would term excessively high in comparison with what one can find in other circumstances. [A.8:128.] Similarly, Dr. Selikoff- offered no evidence of any special air pollution problem in Duluth from asbestos fibers. * * * I don’t think we have evidence one way or the other that at this time general community air pollution by asbestos, either chrysotile or amosite, is a problem. * * * Q. [Mr. Hills, attorney for United States.] Now, is that in Duluth you are talking about, not in Silver Bay? A. I’m talking about throughout the United States. Let’s take chrysotile, general air pollution in the United States has not been shown at this time one way or the other to be or not to be a problem. Similarly in Duluth, we have very few pieces of information, we have limited data, we have few counts, there are relatively few fibers and although we have not, in such limited studies, seen amosite fibers in several other U.S. cities that we’ve looked at, the number that we’ve seen in Duluth is small at this time and I would not say that we have evidence that this — that general community amosite air pollution in Duluth constitutes a problem. I want that perfectly clear because I don’t think we have evidence for this in any way one way or the other. [A. 11:80.] In attempting to show that the air discharge has significant interstate aspects and is not confined to Silver Bay, the trial court made the following observation: Another study was undertaken to try to quantify the fiber load in the area of Reserve’s air discharge. This was a study of the snow in the area as a measure of the number of fibers falling on the ground. The measurements were taken in different areas ranging as far away as 46 miles at the National Water Quality Laboratory and 30 miles at Sand Point and Park Point, Wisconsin. Restricting this evidence to an analysis of those areas where the tracer cummington-ite was found, the study shows emissions from Silver Bay being transported in decreasing amounts as you go away from Silver Bay as far as 46 miles. This includes the two sites in Wisconsin. While there were problems with the study insofar as it applied to Michigan the Court will take it as supplementary and corroborative of the other testimony in the case and as evidence of the presence of these fibers in the air as far away as Wisconsin and Duluth. [380 F.Supp. at 50.] This “snow study,” conducted by Dr. Philip Cook, a chemist with the National Water Quality Laboratory, fails to provide an adequate basis for concluding that the air discharge has any significant interstate character. Any attempt to attribute the amphibole material present in the snow to Reserve’s discharge is rendered suspect by the fact that taconite tail-ings are spread on the roads passing through the test areas: * * * * * * In each case the sampling was done as far away as possible from the road since we have a problem of tailings being spread on the highways which could confuse the measurement. What we’re attempting to measure is the amount of mineral matter which is settling out which would not be coming from the highways, but would be coming from the Reserve Mining Company plant. [A.22:166.] Moreover, even assuming that the study samples were not unduly contaminated by tailings spread on the local highways, no amphibole levels even remotely comparable to those measured in Silver Bay were found in outlying areas. Thus, in the immediate Silver Bay area, the weight of amphibole per square inch of snow was measured at approximately two milligrams. [A.22:167.] At Two Harbors, some 24 miles to the southwest, the amphibole weight was .01 milligrams, or 0.5 percent of that recorded at Silver Bay. [A.22:172.] At the National Water Quality Laboratory in Duluth, 47 miles to the southwest, the amphibole weight was (somewhat inexplicably) higher than that recorded in Two Harbors, but still only .03 milligrams, or 1.5 percent of the Silver Bay level. [A.22:172.] No attempt was made to test the statistical significance of these levels, or to relate the measurements to fiber concentrations in the air. Three Wisconsin sites were studied, located from 29 to 41 miles from Silver Bay. Cummingtonite was “detected” at two of the sites, but Dr. Cook had not calculated actual amphibole weights. [A.22:172.] At most, the snow study indicates that Reserve’s discharge is “detectable” interstate. It offers no support for the view that a significant burden of excess fibers extends beyond Silver Bay; indeed, it supports a contrary inference because the amphibole concentration in Two Harbors, some 24 miles to the southwest, is only a fraction of one percent of that measured at Silver Bay. . In joining Minnesota as a party plaintiff pursuant to Fed.R.Civ.P. 19(a)(2), the district court assumed that it had jurisdiction over the state claims. There is no independent jurisdictional basis for Minnesota’s claims against Reserve, a resident corporation. All claims, however, originate out of a common fact situation. At least with respect to water pollution claims, Minnesota should be considered a necessary party under Rule 19(a)(2). As to Minnesota’s claims relating to air emissions, we believe this is an appropriate case in which to invoke pendent jurisdiction. See Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 816-817 (8th Cir. 1969) (Blackmun, J.); see also United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Almenares v. Wyman, 453 F.2d 1075, 1083 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 809-811 (2d Cir. 1971); Astor-Honor, Inc. v. Grossett & Dunlap, Inc., 441 F.2d 627, 629-630 (2d Cir. 1971); 73 Colum.L.Rev. 153, 165-69 (1973). . To. ascertain what wrongs are alleged and the relief requested requires a reading of four different complaints — the second amended joint complaint, the third amended joint complaint, the amended supplemental joint complaint, and the second amended supplemental joint complaint. Rather than filing amended complaint upon amended complaint, the state should have redrafted the entire complaint. If it had done so, we would not now need to struggle with such a disarray of pleadings and allegations. . APC 1 provides in parti (a) The “primary” air quality standards are levels of air pollutants above which, on the basis of present knowledge, health hazards or impairment may be produced. Health hazards include not only production, aggravation or possible production of disease, but also interference with function. Health impairment includes sensory irritation and impairment of well being by such phenomena as odor. The “secondary” air quality standards are levels which are desirable to protect the public welfare from any known or anticipated adverse effects, such as injury to agricultural crops and livestock, damage to or deterioration of property, annoyance and nuisance of person, sensory impairment and obstruction, or hazards to air and ground transportation. (b) No person shall emit any pollutant in such an amount or in such a manner as to exceed any ambient air quality standard herein beyond such person’s property line, without respect to whether emission regulations stated in other air pollution control regulations of the Agency are also being violated. . APC 5 provides in part: (a) General Provisions. (1) This regulation applies to any operation, process, or activity except the burning of fuel for indirect heating where the products of combustion do not directly contact process materials, except refuse burning and process burning of salvageable material. ****** (5) Any existing emission source which has particulate collection equipment with a collection efficiency of 99 percent by weight or any new emission source which is installed with particulate collection equipment of 99.7 percent efficiency by weight shall be considered as meeting the provisions of this regulation. . APC 3 provides in part: (a) Installation and Operating Permits for Stationary Sources, Fuel-Burning Equipment, Refuse-Burning Equipment and Control Equipment. ****** (2) Operating Permit (aa) No person shall operate any stationary process, fuel-burning equipment, refuse-burning equipment, or control equipment therefore without obtaining an operating permit in accordance with the provisions of Minnesota Laws 1971, Chapter 904. (bb) A person operating an existing installation which is a source of air contaminants' and air pollution shall apply for an operating permit. New operating permits are not required for persons operating emission sources where an operating permit has been issued before January 31, 1972, unless said operating is in violation of Agency air quality rules, regulations and standards. . An emission facility is “any structure, work, equipment * * * or other means whereby an emission is caused to occur.” Minn.Stat.Ann. § 116.06(5). An emission is “a release or discharge into the outdoor atmosphere of any air contaminant or combination thereof.” Minn.Stat.Ann. § 116.06(4). . APC 17 provides in part: (a) Definitions. The following definitions of words and phrases are controlling for the purposes of this regulation: ^ * * * * * (3) “Asbestos” means any of six naturally occurring, hydrated mineral silicates: Acti-nolite, amosite, anthophyllite, chrysotile, cro-cidolite, and tremolite. ****** (8) “Manufacturing operation” means the processing of asbestos or the production of any product containing asbestos, with the exception of any process in which an asbestos containing material is sprayed. # 4s * * * * (12) For purposes of this regulation a product shall be deemed to contain asbestos if a detectable amount of asbestos is present in the product or in any material that goes into the product. A detectable amount of asbestos is defined as that amount detectable by the methods of x-ray diffraction, petrographic optical microscopy, or other method approved by the Director. . This collection efficiency should be contrasted with that required by APC 5, which ■restricts emission of particulate matter generally. APC 5(b)(5) calls for a collection efficiency of 99 percent by weight for an existing emission source and of 99.7 percent by weight for a new emission source. . The selected manufacturing operations include the following: 1) The manufacture of cloth, cord, wicks, tubing, tape, twine, rope, thread, yam, roping, lap or otherwise textile materials. 2) The manufacture of cement products. 3) The manufacture of fireproofing and insulating materials. 4) The manufacture of friction products. 5) The manufacture of paper, millboard, and felt. 6) The manufacture of floor tile. 7) The manufacture of paints, coatings, caulks, adhesives, sealants. . 8) The manufacture of plastics and rubber materials. 9) The manufacture of chlorine. [40 C.F.R. § 61.22(c) (1974).] . The trial court also found Reserve in violation of APC 6. 380 F.Supp. at 17. That regulation provides: (a) No person shall cause or permit the handling, use, transporting, or storage of any material in a manner which may allow avoidable amounts of particulate matter to become air-borne. (b) No person shall cause or permit a building or its appurtenances or a road, or a driveway, or an open area to be constructed, used, repaired or demolished without applying all such reasonable measures as may be required to prevent particulate matter from becoming air-borne. The Director may require such reasonable measures as may be necessary to prevent particulate matter from becoming air-borne including, but not limited to, paving or frequent clearing of roads,. driveways and parking lots; application of dust-free surfaces; application of water; and the planting and maintenance of vegetative ground cover. Dr. John Olin, Deputy Director of the Minnesota Pollution Control Agency, testified that “APC 6 * * * deals with fugitive dust, for example, dust from roads, dust in outside activities, dust during car unloading, this type of thing.” The court gave no explanation how APC 6 has been violated. The stipulation agreement between Reserve and the Pollution Control Agency, to which we have made previous reference, indicated that Reserve was in compliance with APC 6. [A. 1:200.] Neither the opinion of the trial court nor Minnesota’s brief contains any discussion of the grounds for finding Reserve in violation of APC 6. In the absence of any substantiation or explanation of its reasoning, we reject the court’s conclusion that Reserve is in violation of APC 6. . 33 U.S.C. § 1151 et seq. (1970), as amended, 33 U.S.C. § 1251 et seq. (Supp.1974). The amendments, passed in 1972, are not applicable to this litigation. See note 7 supra. Section 1160(c)(5) reads: (5) The discharge of matter into such interstate waters or portions thereof, which reduces the quality of such waters below the water quality standards established under this subsection * * *, is subject to abate- ment in accordance with the provisions of paragraph (1) or (2) of subsection (g) of this section, except that at least 180 days before any abatement action is initiated under either paragraph (1) or (2) of subsection (g) of this section as authorized by this subsection, the Administrator shall notify the violators and other interested parties of the violation of such standards. * * * The court, giving due consideration to the practicability and to the physical and economic feasibility of complying with such standards shall have jurisdiction to enter such judgment and orders enforcing such judgment as the public interest and the equities of the case may require. By implication, the text of (c)(5) incorporates the substance of (g)(1) into its provisions. Subsection (g)(1) reads: (g) If action reasonably calculated to secure abatement of the pollution within the time specified in the notice following the public hearing is not taken, the Administrator— (1) in the case of pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originate, may request the Attorney General to bring a suit on behalf of the United States to secure abatement of pollution * * *. . Lake Superior, of course, is an interstate body of water. . The only procedural requirement necessary for initiation of a suit under §§ 1160(c)(5) and (g)(1) is a 180-day notice to the alleged polluter. Other enforcement provisions of the FWPCA require lengthy and complex presuit administrative proceedings. See §§ 1160(d)-(g). We note that the discharges of Reserve have been extensively considered by the Lake Superior Enforcement Conference, which was convened on May 13, 1969, by the Secretary of the Interior pursuant to § 1160(d)(1). The Conference met periodically during the next two years in an effort to procure the abatement of Reserve’s discharges. The Conference did not resolve the problem, and on April 28, 1971, the Administrator of the Environmental Protection Agency notified Reserve that it was in violation of the federally approved Minnesota state water quality standards, and this suit was initiated February 2, 1972. For a general discussion of the framework of the FWPCA as it existed prior to the 1972 amendments, see Barry, The Evolution of the Enforcement Provisions of the Federal Wate£ Pollution Control Act: A Study of the Difficulty in Developing Effective Legislation, 68 Mich.L.Rev. 1103 (1970). . As is required by § 1160(c)(5), WPC 15 was approved by the Secretary of the Interior (the predecessor to the Administrator of the Environmental Protection Agency who now must approve standards) on November 26, 1969. . A 1973 amendment altered this section slightly but did not change the portion quoted in the text. . The 1972 amendments to the FWPCA grant the Administrator of the Environmental Protection Agency emergency powers to file suit for an immediate injunction where pollution is “presenting an imminent and substantial endangerment to the health of persons.” 33 U.S.C. § 1364 (Supp.1974). Compare 33 U.S.C. § 1161(d) (1970). . We are not here concerned with standards applied to abatement of a nuisance under non-statutory common law doctrines. In most common law nuisance cases involving alleged harmful health effects some present harm or at least an immediate threat of harm must be established. See New Jersey v. New York City, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176 (1931); Arizona Copper Co. v. Gillespie, 230 U.S. 46, 33 S.Ct. 1004, 57 L.Ed. 1384 (1913); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907); Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572 (1906); United States v. City of As-bury Park, 340 F.Supp. 555 (D.N.J.1972); City of Louisville v. National Carbide Corp., 81 F.Supp. 177 (W.D.Ky.1948); DeBlois v. Bowers, 44 F.2d 621 (D.Mass.1930). But see Harris Stanley Coal & Land Co. v. Chesapeake & O. Ry. Co., 154 F.2d 450 (6th Cir.), cert. denied, 329 U.S. 761, 67 S.Ct. Ill, 91 L.Ed. 656 (1946); United States v. Luce, 141 F. 385, 408 (D.Del.1905). Cf. Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 (1928). We comment further on common law nuisance, see p. 532 infra. . Section 407 (the Refuse Act) reads in relevant part: § 407. Deposit of refuse in navigable waters generally. It shall not be lawful to throw, discharge, or deposit, * * * any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, * * provided * * * thát the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful. Section 16 of the Rivers and Harbors Act (33 U.S.C. § 411) contains criminal sanctions, but the Supreme Court has held that language in the enforcement section (§ 17) is sufficiently broad to encompass civil suits for injunctive relief. United States v. Republic Steel Corp., 362 U.S. 482, 491-492, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); see Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201-04, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); see also United States v. Rohm & Haas Co., 500 F.2d 167 (5th Cir. 1974), cert. denied, -U.S. -, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 88-90 (2d Cir. 19721. . Section 403 relates exclusively to impediments to navigation. The district court ruled that “Reserve’s permit, although by its terms a Section 10 [§ 403] permit, also met the underlying pre-requisites for a Section 13 [§ 407] permit when issued * * Order of Oct. 18, 1974, at 3. Thus, according to the district court, when the permit was initially issued in 1948, it was a valid permit under both sections 403 and 407. . The Refuse Act Permit Program was established December 25, 1970, pursuant to Executive Order No. 11574, 3 C.F.R. 292 (1974). . That savings provision reads: No suit, action, or other proceeding lawfully commenced by or against the [EPA] Administrator or any other officer or employee of the United States in his official capacity or in relation 'to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act [Oct. 18, 1972] shall abate by reason of the taking effect [of these amendments]. [86 Stat. 816, Pub.L. 92-500, § 4.] . Reserve argues that a valid Refuse Act permit would be a defense to an alleged violation of the FWPCA. Although this contention is of doubtful validity, see 33 U.S.C. § 1174(1) (1970); United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 669, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); Illinois v. City of Milwaukee, 406 U.S. 91, 104, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); United States v. United States Steel Corp., 482 F.2d 439, 449 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973), we do not reach this issue under our holding that Reserve’s permit does not sanction a continuing discharge of foreign materials into the Lake which are potentially hazardous to health. . We also do not reach the issue of state common law nuisance or whether Minnesota’s water quality standards, standing alone, afford adequate grounds for appropriate injunctive relief in this case. . The district court also found Reserve in violation of Minn.Stat.Ann. § 115.07(1), Order of Oct. 18, 1974, at 16, requiring a permit for the disposal of industrial waste into surface waters, by the dumping of waste from its mine pit into the Dunka and Partridge Rivers of Minnesota and waste from its pilot plant into Lake Superior. Minnesota, however, did not request injunctive relief for these alleged violations but only civil fines and penalties. Thus, these are not appealable interlocutory orders under 28 U.S.C. § 1292(a), and can be appealed to this court only if they can be considered as final orders under 28 U.S.C. § 1291. Pursuant to Fed.R.Civ.P. 54(b), the district court sought to certify the above violations as final orders. Order of Oct. 18, 1974, at 19. This certification, however, is insufficient to give this court jurisdiction over these issues since the district court specifically reserved the assessment of fines and penalties for later resolution. Order of Oct. 18, 1974, at 19. The assessment of fines and penalties cannot be divorced from liability to produce “more than one claim for relief” under Rule 54(b). See Keystone Manganese and Iron Co. v. Martin, 132 U.S. 91, 93-98, 10 S.Ct. 32, 33 L.Ed. 275 (1889); Barnard v. Gibson, 48 U.S. (7 How.) 650, 657, 12 L.Ed. 857 (1849); The Palmyra, 23 U.S. (10 Wheat.) 502, 6 L.Ed. 375 (1825); Smith v. Sherman, 349 F.2d 547, 552-553 (8th Cir. 1965); Taylor v. Board of Education, 288 F.2d 600, 602 (2d Cir. 1961); 9 J. Moore, Federal Practice *] 110.11 at 137-138 (2d ed. 1974). The partial adjudication of a single claim is not appealable even though the district court has issued a Rule 54(b) certificate. See Aetna Cas. & Sur. Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); United States v. Burnett, 262 F.2d 55, 58-59 (9th Cir. 1958). Compare Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); 6 J. Moore, Federal Practice 'i 54.34[1] at 526-527 (2d ed. 1974). See generally Frank, Requiem for the Final Judgment Rule, 45 Tex. L.Rev. 292 (1966). Thus, there has been no final adjudication of the issues which would give this court jurisdiction under 28 U.S.C. § 1291, and Reserve may not at this time appeal from the district court’s declaration of liability. . This language was incorporated into the Order of October 18, 1974, nunc pro tunc by action of the district court on November 4, 1974. . Wisconsin has moved to strike certain documents filed with this court by Reserve relating to the Milepost 7 site. See p. 506 supra. We deny this motion. However, our reference to these documents is solely for the purpose of supplementing the information presented to us at oral argument by Reserve and Minnesota. . Section 82 of Pub.L. 93-251, 88 Stat. 12 (Mar. 7, 1974). The full text of § 82 reads: The Chief- of Engineers, in the exercise of his discretion, is further authorized to provide emergency supplies of clean drinking water, on such terms as he determines to be advisable, to any locality which he finds is confronted with a source of contaminated drinking water causing or likely to cause a substantial threat to the public health and welfare of the inhabitants of the locality. . The United States informs us that very little use is being made of the filtered drinking water supplies provided by the Corps of Engineers. [O]nly one of the six communities * * * is proceeding to filter its water supply, even under the terms ordered by the Court. The other communities are relying on the stopgap of filtering tap water at public eating places and a few designated fire halls. As a result, no home taps in these communities are receiving filtered water. [Br. for U.S. at 53 n. 6.] . See Note, Imminent Irreparable Injury: A Need For Reform, 45 S.Cal. L.Rev. 1025 (1972). . See p. 506 supra. This commitment exceeds by 40 to 60 million dollars the amount found by the district court that Reserve could afford to spend to abate the hazards. See 380 F.Supp. at 19. . We here order Reserve to meet a court-fashioned standard which may exceed the standards of existing air pollution control regulations, excepting APC 17. The Minnesota Pollution Control Agency may condition issuance of a permit for the emission of air contaminants or the operation of an emission facility, such as the Reserve plant, upon the prevention of air pollution. Minn.Stat.Ann. § 116.07(4a). Minnesota defines air pollution as * * * the presence in the outdoor atmosphere of any air contaminant or combination thereof in such quantity, of such nature and duration, and under such conditions as would be injurious to human health or welfare * * *. [Minn.Stat.Ann. § 116.06(3) (emphasis added).] By this injunction we impose upon Reserve the duty not only to comply with APC 1 and 5 but also to take additional steps, if any are necessary, to abate its air pollution within the meaning of Minn.Stat.Ann. § 116.06(3). The broad remedial policy behind Minnesota’s pollution control laws authorizes injunctive relief of this scope. See Minn.Stat.Ann. § 115.- • 071(4). . That stipulation may be found at A. 1:198-210. . We note that both the district court and this court have sought to encourage a settlement among the parties on an on-land disposal site. While these efforts were judicially proper during the course of the litigation, upon entry of a judgment in this case the federal courts must permit the State of Minnesota and Reserve to resolve the question of an on-land disposal site under the appropriate state procedures. . Minnesota, of course, in ruling upon any proposed on-land disposal site must abide by the basic principles of due process of law. Should Minnesota, acting in an arbitrary and capricious manner, deny Reserve a permit for an on-land disposal site, thus forcing Reserve to close, Reserve’s claims, if any, against Minnesota resting on provisions of the state or federal constitutions are preserved by reason of our direction that Reserve’s counterclaims shall be dismissed without prejudice. . See our opinion of March 14, 1975, at 537-540. In light of the comments which surfaced at this March 15 hearing, we think .it appropriate to note that during oral argument before us on December 9, 1974, Reserve stated that following approval by the State of the tailings disposal site now proposed, it could complete construction of new facilities in three years or less. [Dec. 9 Tr. at 26.] We also understand that partial abatement of discharges into Lake Superior would take place in advance of such construction completion date. Reserve also represented during this oral argument that it could begin installing air pollution control equipment on existing facilities immediately. [Dec. 9 Tr. at 178.] The initiation of this timetable in part now depends upon action yet to be taken by the State of Minnesota on Reserve’s application for a disposal site.

Train v. City of New York

Mr. Justice White delivered the opinion of the Court. This case poses certain questions concerning the proper construction of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U. S. C. § 1251 et seg. (1970 ed., Supp III) (1972 Act), which provide a comprehensive program for controlling and abating water pollution. Section 2 of the 1972 Act, 86 Stat. 833, in adding Title II, §§ 201-212, to the Federal Water Pollution Control Act, 62 Stat. 1155, 33 U. S. C. §§ 1281-1292 (1970 ed., Supp. Ill), makes available federal financial assistance in the amount of 75% of the cost of municipal sewers and sewage treatment works. Under § 207, there is “authorized to be appropriated” for these purposes “not to exceed” $5 billion for fiscal year 1973, “not to exceed” $6 billion for fiscal year 1974, and “not to exceed” $7 billion for fiscal year 1975. Section 205 (a) directs that “[s]ums authorized to be appropriated pursuant to [§ 207]” for fiscal year 1973 be allotted “not later than 30 days after October 18, 1972.” The “[s]ums authorized” for the later fiscal years 1974 and 1975 “shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized . . . .” From these allotted sums, § 201 (g)(1) authorizes the Administrator “to make grants to any . . . municipality ... for the construction of publicly owned treatment works ...,” pursuant to plans and specifications as required by § 203 and meeting the other requirements of the Act, including those of § 204. Section 203 (a) specifies that the Administrator’s approval of plans for a project “shall be deemed a contractual obligation of the United States for the payment of its proportional contribution to such project.” The water pollution bill that became the 1972 Act was passed by Congress on October 4, 1972, but was vetoed by the President on October 17. Congress promptly overrode the veto. Thereupon the President, by letter dated November 22, 1972, directed the Administrator “not [to] allot among the States the maximum amounts provided by section 207” and, instead, to allot “[n]o more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974 . ...” On December 8, the Administrator announced by regulation that in accordance with the President's letter he was allotting for fiscal years 1973 and 1974 “sums not to exceed $2 billion and $3 billion, respectively.” This litigation, brought by the city of New York and similarly situated municipalities in the State of New York, followed immediately. The complaint sought judgment against the Administrator of the Environmental Protection Agency declaring that he was obligated to allot to the States the full amounts authorized by § 207 for fiscal years 1973 and 1974, as well as an order directing him to make those allotments. In May 1973, the District Court denied the Administrator’s motion to dismiss and granted the cities’ motion for summary judgment. The Court of Appeals affirmed, holding that “the Act requires the Administrator to allot the full sums authorized to be appropriated in § 207.” 161 U. S. App. D. C. 114, 131, 494 F. 2d 1033, 1050 (1974). Because of the differing views with respect to the proper construction of the Act between the federal courts in the District of Columbia in this case and those of the Fourth Circuit in Train v. Campaign Clean Water, post, p. 136, we granted certiorari in both cases, 416 U. S. 969 (1974), and heard them together. The sole issue before us is whether the 1972 Act permits the Administrator to allot to the States under § 205 (a) less than the entire amounts authorized to be appropriated by § 207. We hold that the Act does not permit such action and affirm the Court of Appeals. Section 205 (a) provides that the “[s]ums authorized to be appropriated pursuant to [§ 207] . . . shall be allotted by the Administrator.” Section 207 authorizes the appropriation of “not to exceed” specified amounts for each of three fiscal years. The dispute in this case turns principally on the meaning of the foregoing language from the indicated sections of the Act. The Administrator contends that § 205 (a) directs the allotment of only “sums” — not “all sums” — authorized by § 207 to be appropriated and that the sums that must be allotted are merely sums that do not exceed the amounts specified in § 207 for each of the three fiscal years. In other words, it is argued that there is a maximum, but no minimum, on the amounts that must be allotted under § 205 (a). This is necessarily the case, he insists, because the legislation, after initially passing the House and Senate in somewhat different form, was amended in Conference and the changes, which were adopted by both Houses, were intended to provide wide discretion in the Executive to control the rate of spending under the Act. The changes relied on by the Administrator, the so-called Harsha amendments, were two. First, § 205 of the House and Senate bills as they passed those Houses and went to Conference, directed that there be allotted “all sums” authorized to be appropriated by § 207. The word “all” was struck in Conference. Second, § 207 of the House bill authorized the appropriation of specific amounts for the three fiscal years. The Conference Committee inserted the qualifying words “not to exceed” before each of the sums so specified. The Administrator’s arguments based on the statutory language and its legislative history are unpersuasive. Section 207 authorized appropriation of “not to exceed” a specified sum for each of the three fiscal years. If the States failed to submit projects sufficient to require obligation, and hence the appropriation, of the entire amounts authorized, or if the Administrator, exercising whatever authority the Act might have given him to deny grants, refused to obligate these total amounts, § 207 would obviously permit appropriation of the lesser amounts. But if, for example, the full amount provided for 1973 was obligated by the Administrator in the course of approving plans and making grants for municipal contracts, § 207 plainly “authorized” the appropriation of the entire $5 billion. If a sum of money is “authorized” to be appropriated in the future by § 207, then § 205 (a) directs that an amount equal to that sum be allotted. Section 207 speaks of sums authorized to be appropriated, not of sums that are required to be appropriated; and as far as § 205 (a)’s requirement to allot is concerned, we see no difference between the $2 billion the President directed to be allotted for fiscal year 1973 and the $3 billion he ordered withheld. The latter sum is as much authorized to be appropriated by § 207 as is the former. Both’ must be allotted. It is insisted that this reading of the Act fails to give any effect to the Conference Committee’s changes in the bill. But, as already indicated, the “not to exceed” qualifying language of § 207 has meaning of its own, quite apart from §205 (a), and reflects the realistic possibility that approved applications for grants from funds already allotted would not total the maximum amount authorized to be appropriated. Surely there is nothing inconsistent between authorizing “not to exceed” $5 billion for 1973 and requiring the full allotment of the $5 billion among the States. Indeed, if the entire amount authorized is ever to be appropriated, there must be approved municipal projects in that amount, and grants for those projects may only be made from allotted funds. As for striking the word “all” from § 205, if Congress intended to confer any discretion on the Executive to withhold funds from this program at the allotment stage, it chose quite inadequate means to do so. It appears to us that the word “sums” has no different meaning and can be ascribed no different function in the context of § 205 than would the words “all sums.” It is said that the changes were made to give the Executive the discretionary control over the outlay of funds for Title II programs at either stage of the process. But legislative intention, without more, is not legislation. Without something in addition to what is now before us, we cannot accept the addition of the few words to § 207 and the deletion of the one word from § 205 (a) as altering the entire complexion and thrust of the Act. As conceived and passed in both Houses, the legislation was intended to provide a firm commitment of substantial sums within a relatively limited period of time in an effort to achieve an early solution of what was deemed an urgent problem. We cannot believe that Congress at the last minute scuttled the entire effort by providing the Executive with the seemingly limitless power to withhold funds from allotment and obligation. Yet such was the Government’s position in the lower courts — combined with the argument that the discretion conferred is unreviewable. The Administrator has now had second thoughts. He does not now claim that the Harsha amendments should be given such far-reaching effect. In this Court, he views §§ 205 (a) and 207 as merely conferring discretion on the Administrator as to the timing of expenditures, not as to the ultimate amounts to be allotted and obligated. He asserts that although he may limit initial allotments in the three specified years, “the power to allot continues” and must be exercised, “until the full $18 billion has been exhausted.” Brief for Petitioner 13; Tr. of Oral Arg. 16-17. It is true that this represents a major modification of the Administrator's legal posture, but our conclusion that § 205 (a) requires the allotment of sums equal to the total amounts authorized to be appropriated under § 207 is not affected. In the first place, under § 205 (a) the Administrator’s power to allot extends only to “sums” that are authorized to be appropriated under § 207. If he later has power to allot, and must allot, the balance of the $18 billion not initially allotted in the specified years, it is only because these additional amounts are “sums” authorized by § 207 to be appropriated. But if they are “sums” within the meaning of § 205 (a), then that section requires that they be allotted by November 17, 1972, in the case of 1973 funds, and for 1974 and 1975 “not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized.” The November 22 letter of the President and the Administrator’s consequent withholding of authorized funds cannot be squared with the statute. Second, even assuming an intention on the part of Congress, in the hope of forestalling a veto, to imply a power of some sort in the Executive to control outlays under the Act, there is nothing in the legislative history of the Act indicating that such discretion arguably granted was to be exercised at the allotment stage rather than or in addition to the obligation phase of the process. On the contrary, as we view the legislative history, the indications are that the power to control, such as it was, was to be exercised at the point where funds were obligated and not in connection with the threshold function of allotting funds to the States. The Court of Appeals carefully examined the legislative history in this respect and arrived at the same conclusion, as have most of the other courts that have dealt with the issue. We thus reject the suggestion that the conclusion we have arrived at is inconsistent with the legislative history of §§ 205 (a) and 207. Accordingly, the judgment of the Court of Appeals is affirmed. So ordered. Mr. Justice Douglas concurs in the result. The provisions of Title II, as added by the 1972 Amendments chiefly involved in this case are, in pertinent part, as follows: Section 205 (a), 33 U. S. C. § 1285 (a) (1970 ed., Supp. Ill): “Sums authorized to be appropriated pursuant to section 1287 of this title for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after October 18, 1972. . . .” Section 207, 33 U. S. C. § 1287 (1970 ed., Supp. Ill): “There is authorized to be appropriated to carry out this sub-chapter ... for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, and for the fiscal year ending June 30, 1975, not to exceed $7,000,000,000.” Section 203, 33 U. S. C. § 1283 (1970 ed., Supp. Ill): “(a) Each applicant for a grant shall submit to the Administrator for his approval, plans, specifications, and estimates for each proposed project for the construction of treatment works for which a grant is applied for [sic] under section 1281 (g)(1) of this title from funds allotted to the State under section 1285 of this title and which otherwise meets the requirements of this chapter. The Administrator shall act upon such plans, specifications, and estimates as soon as practicable after the same have been submitted, and his approval of any such plans, specifications, and estimates shall be deemed a contractual obligation of the United States for the payment of its proportional contribution to such project. “(b) The Administrator shall, from time to time as the work progresses, make payments to the recipient of a grant for costs of construction incurred on a project. These payments shall at no time exceed the Federal share of the cost of construction incurred to the date of the voucher covering such payment plus the Federal share of the value of the materials which have been stockpiled in the vicinity of such construction in conformity to plans and specifications for the project. “(c) After completion of a project and approval of the final voucher by the Administrator, he shall pay out of the appropriate sums the unpaid balance of the Federal share payable on account of such project.” The Act thus established a funding method differing in important respects from the normal system of program approval and authorization of appropriation followed by separate annual appropriation acts. Under that approach, it is not until the actual appropriation that the Government funds can be deemed firmly committed. Under the contract-authority scheme incorporated in the legislation before us now, there are authorizations for future appropriations but also initial and continuing authority in the Executive Branch contractually to commit funds of the United States up to the amount of the authorization. The expectation is that appropriations will be automatically forthcoming to meet these contractual commitments. This mechanism considerably reduces whatever discretion Congress might have exercised in the course of making annual appropriations. The issue in this case is the extent of the authority of the Executive to control expenditures for a program that Congress has funded in the manner and under the circumstances present here. Letter from President Nixon to William D. Ruckelshaus, Administrator, Environmental Protection Agency, Nov. 22, 1972, App. 15-16. Although the allotment for fiscal year 1975 is not directly at issue in this case, on January 15, 1974, the Administrator allotted $4 billion out of the $7 billion authorized for allotment for that fiscal year. Brief for Petitioner 6. 37 Fed. Reg. 26282 (1972). The District Court ordered the action to proceed as a class action under Fed. Rules Civ. Proc. 23 (b) (1) and (2) and also allowed the city of Detroit to intervene as a plaintiff. The petition for a writ of certiorari also presented the question whether a suit to compel the allotment of the sums in issue here is barred by the doctrine of sovereign immunity, but that issue was not briefed and apparently has been abandoned. The Administrator concedes that, if § 205 (a) requires allotment of the full amounts authorized by § 207, then “allotment is a ministerial act and the district courts have jurisdiction to order that it be done.” Brief for Petitioner 14. On July 12, 1974, while this case was pending in this Court the Congressional Budget and Impoundment Control Act of 1974, Pub. L. 93-344, 88 Stat. 297, 31 U. S. C. § 1301 et seq. (1970 ed., Supp. IY), became effective. Title X of that Act imposes certain requirements on the President in postponing or withholding the use of authorized funds. If he determines that certain budget authority will not be required to carry out a particular program and is of the view that such authority should be rescinded, he must submit a special message to Congress explaining the basis therefor. For the rescission to be effective, Congress must approve it within 45 days. Should the President desire to withhold or delay the obligation or expenditure of budget authority, he must submit a similar special message to Congress. His recommendation may be rejected by either House adopting a resolution disapproving the proposed deferral. These provisions do not render this case moot or make its decision unnecessary, for § 1001, note following 31 U. S. C. § 1401 (1970 ed., Supp. IV), provides that: “Nothing contained in this Act, or in any amendments made by this Act, shall be construed as— “(3) affecting in any way the claims or defenses of any party to litigation concerning any impoundment.” The Act would thus not appear to affect cases such as this one, pending on the date of enactment of the statute. The Solicitor General, on behalf of the Administrator, has submitted a supplemental brief to this effect. The city of New York agrees that the case has not been mooted by the Impoundment Act and no contrary views have been filed. Although asserting on the foregoing ground and on other grounds that the Impoundment Act has no application here, the Executive Branch included among the deferrals of budget authority reported to Congress pursuant to the new Act: “Grants for waste treatment plant construction ($9 billion). Release of all these funds would be highly inflationary, particularly in view of the rapid rise in non-Federal spending for pollution control. Some of the funds now deferred will be allotted on or prior to February 1, 1975.” In connection with that submission, the President asserted that the Act “applies only to determinations to withhold budget authority which have been made since the law was approved,” but nevertheless thought it appropriate to include in the report actions which were concluded before the effective date of the Act. 120 Cong. Rec. S17195 (Sept. 23, 1974). Other than as they bear on the possible mootness in the litigation before us, no issues as to the reach or coverage of the Impoundment Act are before us. Section 205 as it appeared in the Senate bill directed the Administrator to “allocate” rather than to “allot.” The difference appears to be without significance. The Act declares that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985,” § 101 (a) (1), 33 U. S. C. § 1251 (a) (1) (1970 ed., Supp. III). Congress intended also to apply to publicly owned sewage treatment works “the best practicable waste treatment technology over the life of the works consistent with the purposes of this subchapter.” §201 (g) (2) (A), 33 U. S. C. § 1281 (g) (2) (A) (1970 ed, Supp. III). See §301 (b)(1)(B), 33 U.S.C.§ 1311 (b)(1)(B) (1970 ed, Supp. III). The congressional determination to commit $18 billion during the fiscal years 1973-1975 is reflected in the following remarks of Senator Muskie, the Chairman of the Senate Subcommittee concerned with the legislation and the manager of the bill on the Senate floor: “[T]hose who say that raising the amounts of money called for in this legislation may require higher taxes, or that spending this much money may contribute to inflation simply do not understand the language of this crisis. “The conferees spent hours and days studying the problem of financing the cleanup effort required by this new legislation. The members agreed in the end that a total of $18 billion had to be committed by the Federal Government in 75-percent grants to municipalities during fiscal years 1973-75. That is a great deal of money; but that is how much it will cost to begin to achieve the requirements set forth in the legislation. “. . . [T]here were two strong imperatives which worked together to convince the members of the conference that this much money was needed: first, the conviction that only a national commitment of this magnitude would produce the necessary technology; and second, the knowledge that a Federal commitment of $18 billion in 75-per-cent grants to the municipalities was the minimum amount needed to finance the construction of waste treatment facilities which will meet the standards imposed by this legislation. “Mr. President, to achieve the deadlines we are talking about in this bill we are going to need the strongest kind of evidence of the Federal Government’s commitment to pick up its share of the load. We cannot back down, with any credibility, from the kind of investment in waste treatment facilities that is called for by this bill. And the conferees are convinced that the level of investment that is authorized is the minimum dose of medicine that will solve the problems we face.” 118 Cong. Rec. 33693-33694 (1972). Both Houses rejected authorization-appropriation funding in favor of the contract-authority system, which was deemed to involve a more binding and reliable commitment of funds. See 117 Cong. Rec. 38799, 38846-38853 (1971); 118 Cong. Rec. 10751-10761 (1972). Congressman Harsha, the House floor manager of the bill, explained the preference for the contract-authority approach and indicated that it was essential for orderly and continuous planning. Id., at 10757-10758. The Administrator goes on to argue that under his present view of the Act, there is little if any difference between discretion to withhold allotments and discretion to refuse to obligate, for under either approach the full amounts authorized will eventually be available for obligation. The city of New York contends otherwise. Our view of the Act makes it unnecessary to reach the question. The Administrator now indicates that the Act is presently being administered in accordance with his view of the Act asserted here. Brief for Petitioner 13. Under §205 (b), any funds allotted to a State that remain un-obligated at the end of a one-year period after the close of the fiscal year for which funds are authorized become available for reallotment by the Administrator in accordance with a formula to be determined by the Administrator. These provisions for reallotment, as well as the reallotment formula, plainly apply only to funds that have already been allotted. Senator Muskie, who was the senior majority conferee from the Senate, gave his view of the meaning of the Harsha amendments on the floor of the Senate: “Under the amendments proposed by Congressman William Harsha and others, the authorizations for obligational authority are ‘not to exceed’ $18 billion over the next 3 years. Also, ‘all’ sums authorized to be obligated need not be committed, though they must be allocated. These two provisions were suggested to give the Administration some flexibility concerning the obligation of construction grant funds.” 118 Cong’. Rec. 33694 (1972). He repeated his views in the course of Senate proceedings to override the President’s veto. Id., at 36871. Nothing was said in the Senate challenging the Senator’s view that executive discretion did not extend to allotments. In the House, the power to make allotments under § 205 was not mentioned in terms. The impact of the Harsha amendments was repeatedly explained by reference to discretion to obligate or to expend. Typical was • Representative Harsha’s remarks that the amendments were intended to “emphasize the President’s flexibility to control the rate of spending . . . ,” and that "the pacing item” in the expenditure of funds was the Administrator’s power to approve plans, specifications, and estimates. Id., at 33754. See also id., at 33693, 33704, 33715-33716, 33754^33755, 36873-36874, 37056-37060. 161 U. S. App. D. C. 114, 494 F. 2d 1033 (1974), aff’g 358 F. Supp. 669 (DC 1973). Other District Courts have reached this same result: Ohio ex rel. Brown v. Administrator, EPA Nos. C. 73-1061 & C. 74-104 (ND Ohio June 26, 1974); Maine v. Fri, Civ. No. 14-51 (Me. June 21, 1974); Florida v. Train, Civ. No. 73-156 (ND Fla. Feb. 25, 1974); Texas v. Ruckelshaus, No. A-73-CA-38 (WD Tex. Oct. 2, 1973); Martin-Trigona v. Ruckelshaus, No. 72-C-3044 (ND Ill. June 29, 1973); Minnesota v. EPA, No. 4-73, Civ. 133 (Minn. June 25, 1974). The only District Court case in which the issue was actively litigated and which held to the contrary was Brown v. Ruckelshaus, 364 F. Supp. 258 (CD Cal. 1973).

People of California ex rel. State Water Resources Control Board v. Environmental Protection Agency

OPINION Before WRIGHT and CHOY, Circuit Judges and BURNS, District Judge.' EUGENE A. WRIGHT, Circuit Judge: Are federal agencies and enclaves within California and Washington required to comply with state procedural requirements with respect to control of water pollution? We hold that they are and we direct the respondent administrator to proceed accordingly and to reconsider the application of the state agencies of Washington and California. Section 313 of the 1972 Amendments to the Federal Water Pollution Control Act [hereinafter “the Act,” 33 U.S.C. §§ 1251-1376 (Supp. II, 1972)] directs that federal agencies “shall comply with State . . . requirements respecting control and abatement of pollution.” But the issue before us is whether federal agencies should submit to the procedural requirements for securing discharge permits which state regulatory bodies may impose on local dis-chargers under section 402 of the statute, which is also sometimes referred to as the Clean Water Act. Section 402 of the Act [33 U.S.C. § 1342] established the National Pollutant Discharge Elimination System [hereinafter NPDES]. Thereunder, the Administrator of the Environmental Protection Agency [hereinafter “the Administrator”] is delegated the initial responsibility for issuing permits for discharges of pollutants into the navigable waters of the United States. The Act contemplates, however, that the states will assume primary responsibility for operation of the NPDES permit system. Section 402(b) of the Act [33 U.S.C. § 1342(b)] provides for approval by the Administrator of state-submitted permit programs which are adequate to ensure compliance with the federal standards set out in the Act. After approving a state program, the Administrator is required to suspend his issuance of discharge permits “as to those navigable waters subject to [that state’s] program.” Section 402(c)(1) of the Act [33 U.S.C. § 1342(c)(1)], Petitioners (California and Washington) challenged the Administrator’s limited approval of their proposed permit programs in original actions authorized by Section 509(b)(1)(D) of the Act [33 U.S.C. § 1369(b)(1)(D)], Both states claim error because the Administrator’s approval exempted federal agencies and instrumentalities from compliance with their proposed permit programs. We ordered the cases consolidated for purposes of the government’s briefing and' oral argument. We have determined that the interpretation advanced by petitioners, that the Act provides for state regulation of federal as well as state dischargers, is correct. Hence we declare invalid those portions of 40 C.F.R. 125.2(b) that exclude federal facilities discharging pollutants into navigable waters from compliance with any state permit program operating under NPDES. We direct the Environmental Protection Agency and its Administrator to include henceforth in any otherwise approvable permit program submitted to it by the governors of the States of Washington or California, the authority to issue permits for all discharges by federal facilities within their respective jurisdictions. A. THE STATUTE. Modern federal legislation in the area of water pollution control began in 1948 with the enactment of the initial version of the Federal Water Pollution Control Act, ch. 758, 62 Stat. 1155. The Act was amended in 1956, 1965, 1966, and 1970 as well as in 1972, each set of amendments seeking to establish a more comprehensive and effective national system for encouraging and coordinating regulation of waste discharges into the nation’s waters. At the same time, all successive versions of the Federal Water Pollution Control Act have reflected a consistent federal policy that the primary responsibility and right to control water pollution lies with the states. See generally S.Rep.No.92-414, 1972 U.S.Code Cong. & Admin.News, pp. 3668, 3669-3670. As a corollary, the federal role has primarily been viewed as one of supporting and assisting state efforts in this area. See id. Section 21(a) of the 1970 amendments to the Act (collectively dubbed the Water Quality Improvement Act of 1970, Pub.L. 91-224, 84 Stat. 91) applied this policy of primary state responsibility for water pollution control to federal agency dischargers. It required federal agencies having jurisdiction over properties, or engaged in public works activities, to comply with “applicable water quality standards” as well as with the more general pollution abating purposes behind the legislation. In reporting favorably what became the House version of the 1970 amendments, the House Committee on Public Works noted that Section 21(a) would require federal agencies to take “immediate and appropriate steps to insure compliance with applicable Federal, State and local water quality standards subject to the availability of appropriations and the needs of the United States.” H.R.Rep.No.91-127, 1970 U.S.Code Cong. & Admin.News, pp. 2691, 2736-2737. The final bill which emerged from conference removed any discretion based on availability of appropriations, and thus required compliance by federal agencies subject only to “the paramount interest of the United States as determined by the President.” Id. at 2740. The interpretation of Section 21(a) suggested by this legislative history (that federal agencies must comply with local pollution abatement standards and guidelines “unless and until the President may determine otherwise”) was judicially approved in California v. Davidson, 3 E.R.C. 1157, 1158 (N.D.Cal.1971) (refusing to dismiss an action by the State of California against the Army’s commanding general at Fort Ord, seeking injunctive relief and damages for the installation’s violation of the state’s waste discharge limitations). Section 21(a) was replaced in 1972 by Section 313 of the 1972 Amendments, 33 U.S.C. § 1323, which set out the compliance requirement for federal agencies in the following language: Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. The legislative history behind Section 313 shows that Congress considered that section “similar to one in existing law.” S.Rep.No.92-414, 1972 U.S.Code Cong. & Admin.News, p. 3733. Several supplementary affidavits submitted by petitioner State of California indicate that some federal installations may in fact be refusing in certain instances to comply with water quality standards established by state administrative boards. However, respondents are willing to concede, at least in principle, that Section 313 does command deference to the substantive effluent limitations and standards promulgated by states pursuant to the Act. In determining whether Section 313 commands a like federal deference to procedures for obtaining state NPDES permits, California v. Davidson, supra, may again be of some guidance. In that case District Judge Weigel held that California’s assertion that the Army had refused to bring one of its facilities into compliance with “requirements” promulgated by a California regional water quality control board stated a good cause of action for injunctive relief under Section 21(a) of the 1970 amendments to the Act [the former 33 U.S.C. § 1171(a) (1970)]. Since the regional boards determine “substantive” requirements applicable to specific waste discharges via administrative hearings which are ordinarily participated in by the discharger, the inference might be drawn that Section 21(a) required compliance with state administrative procedures as well. Any such inference that federal agencies must comply with “procedural” as well as substantive state discharge permit requirements could only be strengthened by the language of the section of the 1972 amendments which replaced Section 21(a), considered in Davidson. Section 21(a) had required only that federal agencies comply with “applicable water quality standards,” without specifying whether compliance was limited to the substantive content of the “standards” referred to, and without specifying whether those standards included state standards. Section 313 changed the word “standards” to “requirements,” and expressly made reference to “State” and “local” requirements. B. CONDITIONS REQUIRED FOR A STATUTORY WAIVER OF EXCLUSIVE FEDERAL LEGISLATIVE JURISDICTION. Standing by itself, however, this reasoning would be insufficient to allow us to conclude that the Act requires federal agencies to comply with procedures for obtaining permits under state programs satisfying the criteria of Section 402(b). Our ability to reach such a determination is limited by the plenary powers clause (U.S.Const. Art. I, sec. 8, cl. 17), which gives Congress exclusive legislative authority over federal enclaves. It is further limited by the supremacy clause (U.S.Const. Art. VI, cl. 2), according to which federal law cannot be subordinated to state regulation within the areas of Congress’ exclusive legislative powers. It is, of course, well established that Congress may waive exclusive legislative jurisdiction over the activities of federal enclaves in deference to state regulation of those activities, at least so long as in doing so it does not undermine its ultimate legislative control over these areas. Paul v. United States, 371 U.S. 245, 263, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). See also Mayo v. United States, 319 U.S. 441, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943); Maun v. United States, 347 F.2d 970 (9th Cir. 1965). But waivers of exclusive federal jurisdiction, like waivers of sovereign immunity, are to be strictly construed. Cf. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). In order for us to hold in favor of petitioners, therefore, we must find that the claimed waiver of exclusive federal jurisdiction is clear and unambiguous, and also that it is not unduly broad or irrevocable. C. THE SCOPE OF THE CLAIMED WAIVER. Respondents point to the language of the plenary powers clause itself in arguing that Congress cannot delegate to states the authority to regulate federal facilities. On this point, however, we find persuasive the language in a recent case, Illinois v. Department of Defense, Civil No. 73 C 2081 (N.D.Ill, July 18, 1974) (unpublished memorandum filed with court by respondents): The Plenary Powers Clause grants Congress the power “[t]o exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dockyards and other needful Buildings.” The defendants argue that the term “exclusive” means literally that the States cannot be permitted to exercise any power in regard to these enclaves. In support thereof they cite three dictionary definitions of the meaning of the word, “exclusive,” which is inappropriate. This reliance is ill founded, for while literal meanings may be helpful, they hardly measure the breadth or historical significance of the clauses of the Constitution. Id., at 5. A delegation to the states of permit-issuing authority over federal agencies would, to be sure, involve the states to a far greater extent in the regulatory process than would an incorporation of their evolving substantive standards into federal law (the type of legislation upheld in United States v. Sharpnack, supra). However, Paul, supra, 371 U.S. at 263, 83 S.Ct. 426, clearly indicates that states may engage in actual regulatory activities if allowed by specific Congressional action. This would seem a natural extension of the power of Congress to delegate substantive lawmaking authority as in Sharpnack. As the Supreme Court noted in Carlson v. Landon, 342 U.S. 524, 542, 72 S.Ct. 525, 535, 96 L.Ed. 547 (1952), “Congress can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose.” The Congressional purpose behind the Water Pollution Control Act is clear: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” [33 U.S.C. § 1251(a).] The strong state interest in controlling pollution has been recognized by the Supreme Court, see Illinois v. City of Milwaukee, 406 U.S. 91, 104, 107, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), as well as in the Act itself, see Section 101(b) of the Act [33 U.S.C. § 1251(b)]. Thus any delegation of permit-issuing responsibilities under the Act would merely involve “the selection of an alternative means for achieving the purposes of the Act.” Illinois v. Department of Defense, supra, at 7. Since Congress has the power to subject federal agencies to substantive state standards, see United States v. Sharpnack, supra, we can see no reason why Congress cannot utilize state regulatory bodies to certify whether the affected agencies are in compliance with those standards. Several limitations embodied in the Act itself demonstrate Congress’ efforts to ensure that the Act’s grant of permit-issuing authority to the states, under Section 402(b), could in no way undermine the federal government’s ultimate power over its own instrumentalities and over interstate commerce by the constitutional grant of authority over these areas to Congress. First, the Act in no way seeks to limit Congress’ ability to reassert exclusive control over the affected federal areas. Nor does it seem that in practice Congress would be politically compelled to retain the Act in its present form, if states attempted significant incursions into the federal prerogative. Secondly, Section 402(b) allows the Administrator to withhold or withdraw approval of state programs which do not meet clearly defined guidelines set out in Section 402(a) of the Act. Finally, as noted previously, Section 313 allows the President to exempt any effluent source from the provisions of the Act, where for any reason (other than a lack of appropriated funds) he deems it in the paramount national interest that a source not be covered. Section 313 of the Act [33 U.S.C. § 1323], D. THE CLARITY OF THE WAIVER. Having determined that Congress had the power to compel agencies within its “exclusive” legislative jurisdiction to seek state discharge permits, we now consider whether it acted in a sufficiently unequivocal manner for us to conclude that it clearly intended to do so. See, e. g., United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). We find the language of waiver sufficiently clear and free from ambiguity. Both sides point to the Act’s legislative history as supportive of their respective positions. However, it is admitted that that part of the record pertaining to Section 313 is silent as to the meaning of that section’s “shall comply with State . . . requirements” admonition. Nor do we find any other legislative history surrounding the Act which conclusively establishes whether Congress did or did not intend to distinguish between substantive and procedural requirements in defining the federal agency compliance duty with state permit programs. “Confronted with this ambiguity, we rely on the words of [Section 313], the scheme of the Act as a whole, and what we discern to be the Congressional purpose, as the best guides to interpreting the section.” Alabama v. Seeber, 502 F.2d 1238, 1247 (5th Cir. 1974) (discussed infra). If taken in isolation, certain parts of the legislative history would seem to indicate that the “requirements” language of Section 313 refers simply and solely to substantive water quality standards. For example, the committee report accompanying the House version of the Act stated: This section [Section 313] requires that Federal facilities meet the same effluent limitations, other limitations, performance standards, toxic effluent standards and thermal discharge regulations as private sources of pollution, unless the Federal facility is specifically exempted by the President. However, the last clause in the sentence containing the disputed “requirements” language would seem to indicate that the above legislative history of Section 313 should be viewed as a mere summary of the Act’s major provisions, and not taken as dispositive of Congressional intent. That clause requires federal agencies to comply with state requirements respecting pollution control and abatement just as any other discharger, “including the payment of reasonable service charges.” Respondents contend that these “reasonable service charges” refer to those for state and local sewage treatment hookups. We disagree. Although the legislative history of Section 313 is silent regarding the meaning of the “reasonable service charges” language, it seems the better interpretation is to read it as referring to charges incident to state permit programs. Even if we were to read the word “requirements” in Section 313 to mean “effluent standards and limitations,” as respondents contend we should, interpreting the “reasonable service charge” language to refer to municipal waste disposal charges would create a non sequitur. Moreover, interpreting “reasonable service charges” to refer to charges associated with state permit programs would be in accord with the canon of statutory construction that, where language in a statute can be given two possible interpretations, that interpretation should be chosen which does not render the language meaningless. Although a state’s taxing power cannot operate within the confines of a federal enclave without the consent of the United States, Mississippi River Fuel Corp. v. Cocreham, 390 F.2d 34, 35 (5th Cir. 1968), no serious contention has ever been made that subordinate governmental bodies must supply public utility services to federal agencies free of normal user charges. Hence, there would be no need for Congress to explicitly direct federal agencies to pay their full share of municipal sewer system costs. On the other hand, any permit program charges might be sufficiently in the nature of a tax that specific federal consent would be required before they could be certified as “properly payable” federal obligations. Reading “reasonable service charges” to mean charges for administering state permit programs finds some support in past state administrative practices as well. Among the federal applicants for waste discharge “requirements” from California’s regional water quality control boards, several have paid the filing fees required by state law. (The State of Washington assesses no fee for processing discharge permit applications under the Act.) Congress may have been aware of this sporadic record of compliance, and have sought to ensure that in the future federal agencies would uniformly contribute their full share to the cost of processing their applications under state permit programs. Section 313 also requires federal agencies to comply with state pollution control requirements “to the same extent that any person is subject to such requirements.” Hence, the extent of the federal agency compliance duty can only be gauged from the type of program that section 402 of the Act demands that states institute for private dischargers. Sections 402(a)(1) and 402(a)(2) of the Act [33 U.S.C. § 1342(a)(1) and (2)] sketch the type of state permit scheme contemplated by Congress. They provide for the imposition of “conditions” on permits. Such conditions can realistically be expected to be developed only in the type of administrative proceeding in which the permit requirements can be tailored to the specific discharger. Since this type of administrative proceeding requires cooperation by the dis-charger in order to be effective, an interpretation of Section 313, which did not compel federal agencies to comply with the procedural requirements of state permit programs would also jeopardize their conceded duty to comply with the substance of state water pollution control efforts. In other words, without federal agency participation in the regular state administrative process, it would be difficult to determine what substantive standards were properly applicable. Consequently, unless they are forced to seek discharge permits like any other dischargers, federal agencies will not be complying with state requirements — substantive or procedural — “to the same extent that any person is subject to such requirements,” thus undermining the purpose of Section 313. We have already noted, however, the Administrator’s apparent concession that federal agencies are bound by “substantive” state requirements. It is therefore possible that his position is not that federal agencies may bypass state administrative processes, but only that after all effluent standards and limitations have been determined for a federal discharger, it is up to the Administrator and-not the states to issue the permit incorporating these standards. This interpretation of Section 313’s command should also be rejected. When we are faced with two alternative readings of an act, we should be reluctant to attribute to Congress a conscious choice in favor of the less efficient one, at least when there is no constitutional compulsion to do so. This is especially the case, when we consider the admonition of Section 101(f) of the Act, 33 U.S.C. § 1251(f): It is the national policy that to the maximum extent possible the procedures utilized for implementing this chapter shall encourage the drastic minimization of paperwork and interagency decision procedures, and the best use of available manpower and funds, so ^s to prevent needless duplication and unnecessary delays at all levels of government. As with Section 402, Section 510 of the Water Pollution Control Act has no counterpart in the Clean Air language construed in Kentucky v. Ruckelshaus, 497 F.2d 1172 (6th Cir. 1974), and California v. Stastny, 4 E.R.C. 1447 (C.D.Cal. 1972), appeal pending, 9th Circuit No. 72-2905. Section 510 provides: State authority Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this chapter; such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent \han the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States. The above language undercuts respondents’ theory that “effluent limitations” and “requirements” were meant to be considered interchangeable terms within the framework of the Water Pollution Control Act. It specifically distinguishes between a “standard” or “limitation” respecting discharges of pollutants, in subdivision (1)(A), and a “requirement respecting control or abatement of pollution” in (1)(B). Moreover, Section 510 implicitly grants to states the right to develop more stringent standards than the Administrator might apply to a federal agency discharger. Thus, even if Section 313 were held to require federal agencies to seek permits from the Administrator rather than from the states, Section 510 would compel compliance with those state standards which were stricter than the Administrator’s. But as noted above, Section 510 would in practice be rendered ineffectual by such an interpretation for state permit program compliance is essential both to establishment of discharge standards and to detection of discharge violations. Considered in the light of Sections 402 and 510, other sections in the Act afford added support to petitioners’ interpretation of the term “requirements” in Section 313, though the significance of each would have been less certain apart from these two sections. For example, several provisions of the Act use the terms “effluent limitations” and “standards” in a very precise sense. Other sections expressly exempt federal agencies from their requirements. And one section, Section 404 of the Act [33 U.S.C. § 1344], sets up a separate permit program, run by the Secretary of the Army rather than by the states, for discharges of dredged or fill material into navigable waters. Consequently, it would appear that the reference in Section 313 to federal agency compliance with state “requirements,” was purposeful and artistic, and was meant to refer to those requirements which state administrative agencies might adopt under their express Section 402 authorizations. This view is supported by Section 505(f) of the Act [33 U.S.C. § 1365(f)], which also shows that the Act’s drafters meant to draw a distinction between the two terms. Section 505(f) explicitly distinguishes between an “effluent standard or limitation” and other types of “limitation” or “standard,” on the one hand, and a “requirement applicable by reason of section 313” on the other. It is true that other courts are in disagreement as to what effect should be given language in the Clean Air Act of 1970 [42 U.S.C. §§ 1857-18571 (1970)], portions of which are substantially identical to the language of Section 313 and of several other sections of the 1972 Water Pollution Control Act Amendments. Compare Alabama v. Seeber, supra, with Kentucky v. Ruckelshaus, 497 F.2d 1172 (6th Cir. 1974), and California v. Stastny, supra. At issue in those cases was whether Section 118 of the Clean Air Act [42 U.S.C. § 1857f], which lacks only the “reasonable service charges” language of Section 313, requires federal agencies to seek state permits for air pollutant emissions. In Seeber, the majority relied on Section 118 to hold unjustified the refusal of TVA and Army officials to apply for such permits. This was contrary to the prior holdings in California v. Stastny and Kentucky v. Ruckelshaus. In the Kentucky case, a unanimous Sixth Circuit panel had refused to order various TVA and other federal officials to seek state permits before operating air polluting equipment. The Kentucky court found “no congressional intent to subject federal instrumentalities and agencies to state administrative regulations,” and concluded that: In the absence of a clear congressional purpose to subject federal agencies to state regulation, the district court was prevented by the Supremacy Clause from granting the injunctive relief sought by the plaintiff. Id. at 1176. In Stastny, the district court arrived at the same conclusion in a short memorandum decision. We do not feel compelled to anticipate this court’s ruling on the appeal in Stastny by adopting either the Fifth or the Sixth Circuit’s position. We recognize the strong structural and terminological similarities between the Clean Air Act and the 1972 Water Pollution Control Act Amendments. Moreover, it seems likely that these similarities were intentional. Nevertheless, we feel that our conclusion — that Section 318 requires full federal agency compliance with state water pollutant discharge permit programs — would not be inconsistent with either an affirmance or a reversal of the district court’s decision in Stastny. As we have noted, the Water Pollution Control Act Amendments do contain significant provisions indicating a waiver of exclusive federal jurisdiction for which no counterparts are to be found in the Clean Air Act. The “reasonable service charges” clause of Section 313, the permit program of Section 402, and Section 510, containing the Act’s “State Authority” provisions, are the most important examples of these. Furthermore, although the language of Section 505(f), discussed supra, closely parallels that of Section 304(f) of the Clean Air Act, there is also here critical additional language which seems to overcome the EPA’s contention that Congress intended to incorporate a substantive-procedural distinction into the Section 313 compliance requirement. Section 505(f) [33 U.S.C. § 1365(f)] provides: “(f) For purposes of this section, the term ‘effluent standard or limitation under this chapter’ means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) certification under section 1341 of this title; or (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title).” The linking of the Section 402 permit scheme with the Section 313 “requirements” language in Subsection 505(f)(6) clearly indicates that state permit programs give rise to a separate category of requirements, non-compliance with which will subject federal agencies (and others) to suit under Section 505(a), just as “substantive” noncompliance will. Consequently, the inclusion of Subsection 505(f)(6) in Section 505, the Act’s primary enforcement section, dispels any ambiguity as to Congress’ intention to require full compliance with the procedural requirements of state pollution control initiatives as well as with the substance of their programs. This dual compliance requirement seems natural, when considered in light of Section 510, discussed supra, which sets out the broad powers allowed states under the Act to promulgate stricter regulations than those required by the federal government. Furthermore, as we have noted, the practical effect of reading Section 313 so as to compel only “substantive” federal agency compliance would be to render state permit programs ineffectual as to those dischargers, both substantively and proceduraliy- Finally, we find no bar to this action under the doctrine of sovereign immunity. Petitioner states proceeded in this action under Section 509(b)(1)(D). Since that section explicitly provides for challenges to the Administrator’s “determinations” regarding state programs, there can be no doubt as to Congress’ consent to suits of the type before us. Respondents assert that petitioners’ remedy, if any, lay under the “citizen suit” provisions of Section 505. We find this argument unpersuasive both as a matter of statutory construction and as a question of efficient judicial administration. In the first place, we note that implicit in respondents’ contention are the premises that petitioners are only concerned that federal agencies do in fact meet the substantive requirements of state permit programs, and that all the states are really seeking to accomplish in this case can be attained by case-by-case attacks on the occasional instances of substantive noncompliance. As we have already noted, however, the states have a significant interest in ensuring procedural as well as substantive compliance with their permit programs. Moreover, assuming without deciding the additional premise of respondents that a state is technically a “person” entitled to sue under Section 505, a state might nevertheless prefer to seek an advance determination of the scope of federal agency compliance duties under Section 509. What is challenged here is not a failure to perform any single “act” or “duty”, as much as the Administrator’s general misinterpretation of the scope of state regulatory jurisdiction under the Act. An action to spell out the scope of state authority granted by the Act seems to be the exact type of challenge that Congress must have contemplated in enacting Section 509. An interpretation that Congress intended that such a challenge be deferred until the states had first attacked individual violations of their programs would waste judicial resources as well as conflict with the Act’s intent to let the states take the lead in attacking water pollution at the earliest possible time. E. CONCLUSION. In conclusion, the 1972 amendments to the Federal Water Pollution Control Act clearly mandate a federal agency duty of full compliance with all aspects of state permit programs. We are aware that the Act retains some phraseology which courts, in interpreting the Clean Air Act, have found too inconclusive to support the clear waiver of federal legislative jurisdiction which is necessary to overcome the presumption of exclusive federal jurisdiction under the plenary powers clause. But the 1972 version of the Water Pollution Control Act introduces several important terminological and structural changes from the Clean Air Act language. It also differs significantly from the Clean Air Act in the comprehensiveness of the administrative scheme it ordains. These distinctions help manifest the congressional purpose that states be in the vanguard of the national attack on water pollution, as California v. Davidson, supra, found to have been the recurrent theme of federal water pollution control efforts. They also suggest a clear congressional choice to rely on state regulatory and enforcement agencies to carry out this effort. Where a construction finding a waiver of exclusive federal jurisdiction' would support the stated congressional purpose, then it seems to us that a purported waiver should be “construed, if not liberally, at least sensibly.” See H. Hart and H. Wechsler, The Federal Courts and the Federal System 1351 (2d ed. 1973). In this case, Congress left no question as to its intent that states should take the lead in water pollution control efforts, and that states should view the compliance schedules and standards in Section 402(a) as floors, not ceilings, for their own Section 402(b) programs. Thus we act in accordance with the clear intent of Congress as well as with the plain language of the statute in holding that federal dischargers within a state’s jurisdiction must comply fully with state permit programs satisfying the Section 402 conditions for approval by the Administrator. We direct the Administrator to reconsider the applications of the States of Washington and California to the extent that he previously withheld approval from such proposed programs, and to act expeditiously on those previously disapproved portions of the applications in a manner not inconsistent with the views expressed in this opinion. . Congress has used the phrase “navigable waters of the United States” in several different senses, ranging from the narrowest and most literal interpretation of that phrase (“navigable in fact”) to the most expansive one permitted by the constitutional grant, U.S.Const. Art. I, sec. 8, cl. 3. Compare, e. g. , The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed.2d 999 (1870) with Kalur v. Resor, 335 F.Supp. 1, 11 (D.C.D.C.1971). Cf. also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). Section 502(7) of the Act [33 U.S.C. § 1362(7)] speaks of the term “navigable waters” as encompassing “the waters of the United States, including the territorial seas.” S.Conf.Rep.No.92-1236, 1972 U.S.Code Cong. & Admin.News, p. 3821. Thus Congress clearly meant to extend the Act’s jurisdiction to the constitutional limit, to include all tributaries of rivers which, “when combined with other waters or systems of transportation, the commerce on such waters would have a substantial economic effect on interstate commerce.” Report of the Conference Committee on S. 2770, reported in A Legislative History of the Water Pollution Control Act Amendments of 1972, 166, 178 (Comm, on Publ. Works Print, 1973) [hereinafter cited as Legislative History], The Act thus contemplates regulation of any activity within the class of streams noted above or the class of pollution discharges into such streams, without regard to whether either the particular discharge or the individual receiving waters discemibly affect interstate commerce. See United States v. Ashland Oil & Transportation Co., 364 F.Supp. 349 (W.D. Ky.1973); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). The legislative history expressly discloses an intention to avoid the limitations on implementation of the 1965 Act which had been occasioned by a narrow interpretation of the phrase “navigable waters” as used in that Act. S.Rep.No. 92-414, 1972 U.S.Code Cong. & Admin.News, p. 3742. . An affidavit of Bill Dendy, Executive Officer of the California State Water Resources Control Board, is attached to the reply brief of petitioner California. It details two recent occasions where the Administrator has issued permits for the discharge of pollutants by federal agencies (Norton Air Force Base and the U.S. Bureau of Reclamation) without including conditions in the permit as requested by the interested state regulator agencies. Instead, the Administrator is continuing to screen such state-requested permit conditions, and apply his own notions of “best practicable” and “best available” technology and of what constitutes compliance “to the fullest extent possible” in issuing permits to federal agencies, rather than the standards suggested by the state. Cf. Section 301(b)(1) and (b)(2) of the Act, 33 U.S.C. § 1311(b)(1) & (b)(2). See also note 12, infra; S.Rep.No.92-414, supra note 1, at 3733: “Evidence received in hearings disclosed many incidents of flagrant violations of air and water pollution requirements by Federal facilities and activities. Lack of Federal leadership has been detrimental to the water pollution control effort.” . The Porter-Cologne Act, Cal. Water Code § 13020 et seq., enacted by the California legislature in 1969, authorizes California’s regional water quality control boards to issue standards, or “requirements,” applicable to waste discharges which might affect the state’s waters. Id. § 13263. The regional boards conduct administrative proceedings, which are participated in by the applicant, and issue “requirements” applicable to the specific discharge. Both the regional boards and the State Water Resources Control Board, which must issue water appropriation permits, are required to comply with the provisions of the California Environmental Quality Act, Cal. Publ. Resources Code § 21000 et seq. The State Board is also statutorily required to consider “the public interest.” Cal. Water Code §§ 1253, 1255, 1257. . Cf. Alabama v. Seeber, 502 F.2d 1238, 1248 (5th Cir. 1974). . However, the Administrator’s role following approval of a state permit program is a very limited one. Sections 402(d)(2)(A) and (B) of the Act [33 U.S.C. § 1342(d)(2)(A) and (B)] allow the Administrator to prevent issuance of a state permit only if the proposed discharge would adversely affect a downstream state, or if the permit is inconsistent with the Administrator’s guidelines under § 402(a). . H.Rep.No.92-911, Legislative History at 805. Similar language was found in the Senate committee reports accompanying S. 2770, eventually passed in lieu of the House bill, See S.Rep.No.92-414, supra note 1, at 3733-3734; S.Conf.Rep.No.92-1236, supra note 1, at 3812-3813. . Accord, Comment, Local Control of Pollution from Federal Facilities, 11 San Diego L.Rev. 972, 991 (1974). . See J. Sutherland, Statutes and Statutory Construction § 46.06 (4th ed. C. Stands 1972). . See note 3, supra. . See affidavit of Bill Dendy, cited in note 2, . In programs modeled after the California NPDES program, the first to be approved by the Administrator following the Act’s passage, the process is initiated by the discharger submitting a report of an actual or contemplated discharge to an administrative board. Thereafter the board conducts a hearing concerning the discharge, and develops limitations, requirements, and conditions with which the discharger must comply as a condition of obtaining and retaining the permit. It is thus by the administrative process that discharges are brought to the state’s attention, and applicable quantitative and qualitative standards developed. . We disagree with the assumption in Kentucky v. Ruckelshaus, 497 F.2d 1172, 1177 (6th Cir. 1974), that a permit has nothing to do with air (or water) quality. See Comment, supra note 7, at 986. . This position would appear to be consistent with Executive Order No. 11752, 3 C.F.R. 380 (1974). Respondents’ reliance on it is misplaced. In the first place, even if we accept respondents’ contention that this executive order constitutes an administrative interpretation of Section 313, but see contra Alabama v. Seeber, 502 F.2d at 1249, the normal rule attaching significance to the manner in which a statute is interpreted by the agency charged with its enforcement is inapplicable here. That rule is based on the assumption that Congress’ long-standing failure to overturn the agency’s interpretation indicates congressional acquiescence in that interpretation. See Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). In this case, the executive order was issued too recently for Congress to have undertaken contrary amendatory action. Secondly, in finding support for its holding in Executive Order 11752, the court in Kentucky v. Ruckelshaus pointed out that the above-noted rule of statutory construction is of particular importance where supported by the legislative history of the act to which the order refers. 497 F.2d at 1176. Here, however, it is admitted that the legislative history is silent as to the question presented regarding the correct interpretation of Section 313. Finally, the fact that Executive Order No. 11752 was issued more than four months after petitioner California brought this suit suggests that the order was issued in response to it. For this reason also it is entitled to less weight. Nor can Executive Order No. 11752 be considered an exercise of the President’s authority under Clean Air Act § 118 and § 313 of the Water Pollution Control Act to exempt federal facilities from certain requirements. “Exercise of that authority contemplates a case by case determination that the exemption is ‘in the paramount interest of the United States.’ ” Alabama v. Seeber, 502 F.2d at 1249. . Nowhere in the language of Section 402, establishing the NPDES, is there any suggestion that the Administrator may establish a dual permit system, administered in part by a state and in part by himself. The legislative history of Section 313 also is devoid of any indication that Congress intended to allow the Administrator to retain partial permit issuing authority. . E. g., see Sections 301, 302, 303, 306, 307 and 315 of the Act [33 U.S.C. §§ 1311, 1312, 1313, 1316, 1317, 1325]. . See Sections 306(c), 308(c), 401(a)(6) of the Act [33 U.S.C. §§ 1316(c), 1318(c), 1341(a)(6)], . 42 U.S.C. § 1857h-2(f). . See Section 101(b) of the Act [33 U.S.C. § 1251(b)]. Cf. Alabama v. Seeber, 502 F.2d at 1244-45.

Higginbotham v. Barrett

BELL, Circuit Judge: This appeal is from the dismissal of a suit seeking injunctive and declaratory relief against the Commissioners of Cobb County, Georgia, the County Engineer, and the Regional Administrator of the Environmental Protection Agency (EPA). Plaintiffs reside on property adjacent to property as to which an application was pending to rezone it from residential to apartment use. They contended that no public sewerage facilities were available for the proposed apartments and that apartment use would pollute the Chattahoochee River and other streams of Cobb County. Plaintiffs reside near the river. They also alleged that there was no comprehensive zoning plan in Cobb County and that this resulted in their having to engage in mul-tiplicious administrative proceedings before the zoning officials in order to protect their residential property. The County Commissioners of Cobb County are empowered to rezone property, and the County Engineer is in charge of issuing building permits. The Regional Administrator of the EPA was named as a defendant on the basis of his duties in administering the Federal Water Pollution Control Act (33 U.S.C.A. § 1151 et seq.). Plaintiffs sought injunctive relief as follows: (1) to enjoin the defendant county commissioners from approving the rezoning application; (2) to enjoin the county engineer from issuing a building permit for use on the property in question; (3) and to enjoin the Regional Administrator of the EPA from making grants to Cobb County for sewage treatment purposes. They also sought a declaratory judgment that the alleged present pollution of streams, including the Chattahoochee River, by sewage from Cobb County was in violation of the Water Pollution Control Act, supra. It appeared without dispute that the property had not been rezoned. The district court concluded that relief against the county officials was premature, absent the grant of the application to rezone. The county officials were for that reason dismissed. The EPA Regional Administrator was dismissed on the ground that plaintiffs had no standing under the Federal Water Pollution Control Act, 33 U.S.C.A. § 1151, et seq., to compel any action on his part. The claim for declaratory judgment that the present pollution of the Chattahoochee by sewage in Cobb County was in violation of the Federal Water Pollution Control Act was dismissed on the ground that the Act does not create a private cause of action. This appeal followed. Here plaintiffs narrow their argument to two questions. First, they assert a lack of due process and equal protection theory for the suit against the county officials. This theory is based on the alleged lack of a comprehensive county land use plan whereunder they might protect their residences from encroachment and the streams from pollution without the necessity of attending monthly hearings where, applications to rezone were being considered. Second, they urge that they have standing to sue under the Water Pollution Control Act. They urge that a finding of standing would perforce require further proceedings in the district court on the issues related to the Act. The thrust of the claim under the Water Pollution Control Act, as we understand it, is that the Regional Administrator was obligated, before making grants, to require that the county adopt a comprehensive land use plan to avoid water pollution. The further thrust of the claim is that a cause of action would lie under the Act against the county officials to abate the alleged pollution. They seek injunctive relief against the proposed rezoning as a part of the remedy under this claim. I. We first discuss the claim against the county officials in the context of plaintiffs’ claim for relief based on an equal protection and due process basis. This is aside from the claim under the Water Pollution Control Act. First, it would appear that the claim sounds more nearly in terms of due process than equal protection. That, however, is of little moment in the ease because we conclude that no substantial federal constitutional question was presented in any event on this particular theory. The law is settled that the zoning of property, including the preparation of comprehensive land use plans, involves the exercise of judgment which is legislative in character and is subject to judicial control only if arbitrary and without rational basis. Shenk v. Zoning Commission of the District of Columbia, 1971, 142 U.S.App.D.C. 267, 440 F.2d 295, 297; Diedrich v. Zoning Commission of the District of Columbia, 1967, 129 U.S.App.D.C. 265, 393 F.2d 666; City of St. Paul v. Chicago, St. Paul, Minneapolis and Omaha Railway Company, 8 Cir., 1969, 413 F.2d 762, 766-767. Cf. Goldblatt v. Town of Hempstead, 1962, 369 U.S. 590, 594-595, 82 S.Ct. 987, 8 L.Ed.2d 130. There is no claim or showing of arbitrariness nor any assertion of a lack of rational basis in the proposed zoning. What is proposed is no more than the usual exercise of the police power of the county to the end of regulating land use. There was no showing that the apartments will be allowed to operate without sewage disposal in some form. Indeed, it appears that a water pollution control program is well under way in the county. The purpose of making the EPA Regional Administrator a party was to stop the program until a comprehensive land use program was adopted as a part of controlling water pollution. Nor is there a showing of arbitrariness in the procedure used in hearing applications to rezone property. Plaintiffs do not claim lack of notice or that the hearing procedures are inadequate. Rather they complain of the frequency of the hearings. Frequency, as the claim goes, means attending monthly hearings. This type of procedure does not rise to the level of being arbitrary or a denial of due process. II. We come then to the question of the standing of plaintiffs to sue the county officials or the Regional Administrator, or both, under the Water Pollution Control Act. The answer to this question depends on an interpretation of the Act in light of the law of standing. In Johnson v. Morton, 5 Cir., 1972, 456 F.2d 68, 70-71, we said: “. . . the Supreme Court, in Association of Data Processing Service Organizations v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, formulated a dual test for standing. The first question to be determined is whether the plaintiffs allege ‘. that the challenged action has caused [them] injury in fact, economic or otherwise.’ 397 U.S. at 152, 90 S.Ct. at 829. The second inquiry is whether the interest sought to be protected is '. . . arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ 397 U.S. at 153, 90 S.Ct. at 830. See also Barlow v. Collins, 1970, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192.” 456 F.2d at 70-71. The allegations of plaintiffs with respect to injury in fact from water pollution are sufficient under notice pleading concepts. They thus meet the first prong of the test. Their problem, however* is to be found in the second prong of the test under Data Processing Service and Johnson v. Morton. Is the interest they seek to protect, elimination of water pollution near their residences, arguably within the zone of interests to be protected by the Water Pollution Control Act? The answer is no. There is nothing in the Act which creates a right of action in private parties such as plaintiffs to seek abatement of water pollution or to require any other act at their behest on the part of the Administrator or any state or local official. The Act is designed to eliminate water pollution through research, planning, and other endeavors, joint and several, as amongst federal, state and local governments. Funds are provided for various of the activities contemplated by the Act. The right to sue is vested exclusively in the Administrator of the Environmental Protection Agency (formerly in the Secretary of the Interior), who must request the Attorney General of the United States to bring suit, except where intrastate pollution is involved, and in those instances the Administrator must obtain the consent of the Governor of the State before requesting the Attorney General to bring suit. There is no suggestion whatever in the Act that it inures to the benefit of persons such as plaintiffs to the extent of providing a basis for suit against federal, state or local officials. The import of the Act is to the contrary; it contemplates action on the part of government and sometimes private industry to control and eliminate pollution. It does not suggest a private Attorney General approach through private suits. Even a less restrictive approach avails plaintiffs nothing. Assuming arguendo that they are arguably within the zone of interests to be. protected by the Water Pollution Control Act and therefore have standing, we would proceed to determine whether their complaint states a claim upon which relief can be granted. The result at this point would be the same. The Act accords them no right to compel action on the part of the Administrator or the county officials. We perceive that plaintiffs may also be claiming a substantive right against the Administrator on the basis of § 10(a) of the Administrative Procedure Act. 5 USCA, § 702. The language of that section, “within the meaning of a relevant statute,” ties directly to the “zone of interests” test of Data Processing. Moreover, the APA provides a remedy for a right which springs from another source, here allegedly the Water Pollution Control Act. The APA is not the source of the substantive right. Plaintiffs rely on Sierra Club v. Morton, 1972, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636. That case was decided on whether there was an injury in fact. None was found. The second prong of the Data Processing test was expressly pretermitted. See Fn. 5 of the opinion, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d at 642. There is another group of cases exemplified by Data Processing, 397 U.S. at 155-156, 90 S.Ct. 827, and by Environmental Defense Fund, Inc. v. Hardin, 1970, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1096, where plaintiffs were arguably within the zone of interests sought to be protected by the statutes there in question. This was established by language found in the statute or in the legislative history of the particular statute. See cases cited in Johnson v. Morton, 456 F.2d at 73. We have found only one reported decision on the scope of the Federal Water Pollution Control Act from the zone of interests standpoint. Shaw-Henderson, Inc. v. Schneider, 335 F.Supp. 1203, aff’d per curiam, 453 F.2d 748 (6 Cir., 1972). The standing issue involved the right of a contractor to sue for funds granted under the Act. The court found a lack of standing based on a reading of the Act. 335 F.Supp. at 1212-1213 and Fn. 1. The judgment is affirmed. . 33 USCA, § 1160(g). . 5 USOA § 702: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

United States v. Tex-Tow, Inc.

CASTLE, Senior Circuit Judge. Tex-Tow, Inc. appeals from the district court’s enforcement by way of summary judgment of a $350 civil penalty assessed by the United States Coast Guard against Tex-Tow under section 1321(b)(6) of the Federal Water Pollution Control Act (FWPCA) for a discharge of oil into navigable waters in violation of section 1321(b)(3) of the Act. In this case, as in United States v. Marathon Pipe Line Company, 589 F.2d 1305 (7th Cir. 1978), decided this same day, a company was held liable to a civil penalty based on its ownership or operation of a discharging facility even though it was not at fault and the spill was caused by a third party’s act or omission. In Marathon, the company argued that no more than a nominal penalty could be imposed in the absence of fault. Here, Tex-Tow argues that no penalty, nominal or substantial, can be imposed on a party that did not “cause” the spill. We sustain the penalty against this new attack for much the same reasons as in Marathon, as Tex-Tow’s causation argument is very similar to Marathon’s fault argument and suffers from the same defect that it ignores the absolute nature of the civil penalty liability, as well as the penalty’s remedial and economic rather than deterrent objectives. Tex-Tow operated a tank barge which was being loaded with a cargo of gasoline at a dock on the Mississippi River owned and operated by Mobil Oil Company. As the barge was filled with gasoline, it sank deeper into the water, settling on an underwater steel piling that was part of the dock structure. The piling punctured the hull of the barge, resulting in a discharge of 1600 gallons of gasoline into the river. Conced-edly Tex-Tow was not at fault as there is no reasonable way it could have known of the piling and it received no warning from Mobil. We will also assume for purposes of this opinion that Tex-Tow would have a third-party causation defense (on the basis of an act or omission by Mobil), if such a defense were available in the case of the civil penalty. The Statutory Scheme The FWPCA was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Toward that end, Congress set the goal of eliminating the discharge of all pollutants into navigable waters by 1985. § 1251(a)(1). Section 1321, dealing with oil and hazardous substance liability, sets a “no discharge” policy of immediate effect and prohibits any discharge in harmful quantities. §§ 1321(b)(1) and (3). The section holds owners or operators of discharging facilities liable for clean-up costs, subject to the defenses of act of God, act of war, negligence of the United States Government, or act or omission of a third party. § 1321(f). If the discharged substance is nonremovable, the owner or operator is liable to a variable civil penalty dependent on the amount and toxicity of the substance spilled. This “liquidated damages liability” is again subject to the four enumerated defenses. § 1321(b)(2)(B) (iii). Finally, section 1321(b)(6), the immediate focus of our concern here, makes owners and operators liable to a civil penalty of up to $5,000, with no provision for any defenses but with the amount of the penalty to be determined by the Coast Guard, which is instructed to take into account ability to pay and “gravity of the violation.” Statutory Interpretation First, Tex-Tow argues that the third party causation defense contained in the provisions dealing with clean-up liability and liquidated damages liability should also be read into the civil penalty provision. We decline to do so, as did the court in United States v. General Motors Corp., 403 F.Supp. 1151, 1157 (D.Conn.1975). As stated in International Telephone and Telegraph Corporation v. General Telephone & Electronics Corporation, 518 F.2d 913, 917— 918 (9th Cir. 1975): There are two circumstances in which this court may look beyond the express language of a statute in order to give force to Congressional intent: where the statutory language is ambiguous; and where a literal interpretation would thwart the purpose of the over-all statutory scheme or lead to an absurd result. (Citations omitted.) Neither of these circumstances is present here. The statutory language is not ambiguous, and a literal interpretation according no third party or other defenses to the civil penalty furthers the overall statutory scheme of shifting the cost of pollution onto the polluting enterprise. It is true that the statute affords narrow defenses to the two other liabilities, however absolute liability in the case of the civil penalty is not unduly harsh or unreasonable in view of the limited nature of the liability (maximum of $5,000) and the flexibility afforded by the statutory directive that the Coast Guard, in setting the amount of the penalty, take into account the charged party’s ability to pay and the “gravity of the violation,” which has been interpreted by the Coast Guard to include degree of culpability. Tex-Tow, however, asserts that a causation requirement must be implied in the civil penalty provision because no liability may exist in the absence of causation. We agree that causation is required even under a strict liability statute, however Tex-Tow has conceded that the presence of its barge at the pier was a cause in fact of the spill. The only question is whether legal, or proximate, cause also exists. This is “essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Prosser, The Law of Torts 244, § 42 (4th ed. 1971). Tex-Tow argues that the mere presence of its barge at the dock is not sufficient to constitute legal cause. We believe, however, that more than “mere presence” was involved here. Tex-Tow was engaged in the type of enterprise which will inevitably cause pollution and on which Congress has determined to shift the cost of pollution when the additional element of an actual discharge is present. These two elements, actual pollution plus statistically foreseeable pollution attributable to a statutorily defined type of enterprise, together satisfy the requirement of cause in fact and legal cause. Foreseeability both creates legal responsibility and limits it. An enterprise such as Tex-Tow engaged in the transport of oil can foresee that spills will result despite all precautions and that some of these will result from the acts or omissions of third parties. Although a third party may be responsible for the immediate act or omission which “caused” the spill, Tex-Tow was engaged in the activity or enterprise which “caused” the spill. Congress had the power to make certain oil-related activities or enterprises the “cause” of the spill rather than the conduct of a third party. With respect to the civil penalty Congress has exercised this power. The statistical foreseeability of an accident is a proper basis on which to affix legal responsibility. In Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) the statistical foreseeability of automobile accidents gave rise to a manufacturer’s duty to design cars to minimize injury upon collision. In Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968), the statistical foreseeability of some adverse reactions to a polio vaccine gave rise to a manufacturer’s duty to warn consumers, as marketing the vaccine without the warning was held to constitute a “defect” under strict products liability law. Under the absolute liability standard here involved neither fault nor defect need be proved, so foreseeability is used not to establish these but rather to affix legal responsibility despite the absence of fault or defect and also to limit the scope of that liability. We note that the question of ultimate liability remains unresolved, as Tex-Tow may still have an indemnity cause of action against Mobil under section 1321(h). However, the only court to consider the question has construed section 1321(h) as not extending the indemnity cause of action to recovery of the civil penalty. Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907, 926 (S.D.N.Y.1977). Such an interpretation is consistent with the economic or risk-shifting view of the civil penalty here taken, as the party engaged in the potentially polluting enterprise is in the best position to estimate the risk of accidental pollution and plan accordingly, as by raising its prices or purchasing insurance. Economically, it makes sense to place the cost of pollution on the enterprise (here water transport of gasoline) which statistically will cause pollution and in fact does cause pollution. We do not, however, here decide the question of ultimate liability. Substantive Due Process What we have already said respecting Tex-Tow’s statutory interpretation argument goes far toward refuting Tex-Tow’s second argument that imposing a civil penalty in a situation of third party causation is irrational. First, we note that the Supreme Court has not struck down an economic regulation on the substantive due process grounds here urged since 1937. Second, Tex-Tow’s claim of irrationality is grounded in the assumption that the purpose of the civil penalty is to deter spills. As we have already explained here and in Marathon, the civil penalty also has certain non-deterrent, economic purposes which are rationally served by an absolute liability standard. There are several indicia in section 1321 itself of purposes other than deterrence: neither clean-up liability nor liquidated damages liability is premised on a finding of fault, and, of course, civil penalty liability is absolute, although tempered by the statutory directive that "gravity of the violation” be considered in setting the amount of the penalty. There is also evidence of a remedial purpose to clean up spills once they occur rather than solely a deterrent purpose to prevent spills in the first instance. The section provides for govern ment clean-up of disaster spills, § 1321(d), and of other spills which the discharger does not clean up itself, § 1321(c)(1). To fulfill this remedial function, the Council on Environmental Quality is directed to develop a National Contingency Plan, pursuant to which the ' EPA and the Coast Guard are authorized, inter alia, to set up detection systems, purchase removal equipment, and train and maintain a strike force. § 1321(c)(2). The civil penalty is directly implicated in all these remedial functions as proceeds from civil penalty collections are to be placed in the revolving fund which finances these government activities. § 1321(k). It is reasonable to require those who “cause” damage, not by their conduct but by the activity they are engaged in, to pay for the costs of abating that damage. Forfeitures have been used to finance a regulatory scheme, see, e. g. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), and penalties or forfeitures have been sustained against due process attack even though the charged party was faultless and a third party was the immediate cause of the violation. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (yacht forfeited even though third parties violated the drug laws), Edelberg v. Illinois Racing Bd., 540 F.2d 279 (7th Cir. 1976) (winnings forfeited although third parties drugged the horse). The present case is stronger than these forfeiture cases as the activity of the charged owner or operator (water transportation of oil) is responsible for the pollution. We hold that the “cause” of a spill is the polluting enterprise rather than the conduct of the charged party or a third party. Accordingly, an owner or operator of a discharging facility is liable to a section 1321(b)(6) civil penalty even where it exercised all due care and a third party’s act or omission was the immediate cause of the spill. Affirmed. . 33 U.S.C. § 1321(b)(6) (1976). All references to the FWPCA in this opinion are to the 1972 and 1973 amended versions. The 1977 amendments, which changed the wording of section 1321(b)(6), do not apply to this case as the spill occurred in 1974. . The term “discharging facilities” shall be used where the statute refers to “vessel, onshore facility, or offshore facility.” . The EPA is charged with drawing up a schedule assigning appropriate per unit penalties to various nonremovable substances. § 1321(b) (2)(B)(iv). . This penalty, assessed only where clean-up is impossible due to the nonremovable nature of the hazardous substance, has elsewhere been called a “penalty in lieu of clean-up costs.” See, e. g., United States v. General Motors Corp., 403 F.Supp. 1151, 1157 (D.Conn.1975). . Section 1321(bl(6) states: Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of [section 1321(b)(3)] shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. . . “Coast Guard Policy for the Application of Civil Penalties under Section 311(b)(6), FWPCA,” reprinted as an appendix to United States v. LeBeouf Bros. Towing Co., Inc., 377 F.Supp. 558, 569 (E.D.La.1974). . Namely an “owner or operator of any vessel, onshore facility, or offshore facility” which pollutes navigable waters. . In fact, the essence of absolute liability is that conduct is irrelevant. “Treating the problems of accident law in terms of activities rather than in terms of careless conduct is the first step toward a rational system of resource allocation.” G. Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv.L.Rev. 713, 716 (1965). . Section 1321(h) provides as follows: (h) Rights against third parties who caused or contributed to discharge The liabilities established by this section shall in no way affect any rights which (1) the owner or operator of a vessel or of an onshore facility or an offshore facility may have against any third party whose acts may in any way have caused or contributed to such discharge . Tug Ocean Prince, supra, interpreted “liabilities” as not including the civil penalty. . In other words, Tex-Tow is the “cheapest cost avoider.” G. Calabresi and J. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055, 1060 (1972). . This is the theory of cost “internalization,” under which the social costs of an enterprise are attributed to that enterprise. The enterprise will presumably pass such costs on to consumers of its product in the form of higher prices. The consumer will then be charged the true cost of the product (cost to the manufacturer plus cost to society), and in making his personal decision as to whether the product is “worth it” also be casting a vote as to the social utility of the product. See, e. g., Cala-bresi, The Decision for Accidents, note 8 supra, at 717-20. . G. Gunther, Constitutional Law Cases And Materials 591 (9th ed. 1975). “Economic regulation” is used in contrast to regulation of non-economic personal interests. Id. at 565, 567. The civil penalty would clearly be an economic regulation as no personal or non-economic interest of Tex-Tow is involved. . The defenses of act of God, act of war, negligence of the United States Government, and act or omission of a third party leave open the possibility that a faultless owner or operator will nevertheless be held liable because of the inapplicability of any of these four narrow defenses. . The President delegated his planning authority under § 1321(c)(2) to the Council on Environmental Quality. Executive Order No. 11735, Assignment of Presidential Functions, Sec. 4 (appended to 33 U.S.C. § 1321). . Id. at Sec. 5(b).

United States v. Tex-Tow, Inc.

BAUER and WOOD, Circuit Judges, concurring. We concur, but with the same reservations we expressed in concurring in United States v. Marathon Pipe Line Company, 589 F.2d 1305, also decided this date.

United States v. Kennecott Copper Corp.

OPINION Before TUTTLE, HUFSTEDLER and WRIGHT, Circuit Judges. HUFSTEDLER, Circuit Judge: Kennecott Copper Corporation (“Kennecott”) appeals from its conviction for violating 33 U.S.C. § 1321(b)(5) (failure immediately to notify an appropriate governmental agency of known oil spill). Kennecott challenges the constitutionality of the statute on due process grounds, argues that the evidence was insufficient to sustain the conviction, and asserts prejudicial error in claimed prosecutorial misconduct. We reject the contentions and affirm. Sometime during the night of November 30, 1973, a pipeline broke at Kennecott’s Arizona facility and 173,800 gallons of diesel oil spilled. The oil initially flowed to a pond 2 miles from the break. The pond was connected by a 100-yard channel to the Gila River. Mortimer and Fitch, supervisorial employees of Kennecott, were called to the site early on the morning of December 1. They found that workmen had blocked off the pond to prevent its draining into the channel. They ordered additional damming. Mortimer and Fitch then looked for signs of oil in and along the River. Each testified that he saw no sign of oil on December 1, although Mortimer said he could smell oil at the River then. The next day they tried further sightings downstream. Each testified to seeing “three or four rainbow-colored patches the size of the palm of a hand.” Fitch examined the River again that night (December 2) after he had heard a rumor that a horse crossing the River had oil on its legs. He said that he could not see any oil then nor did he see any on the morning of December 3. At 1:20 p. m., December 3, Mortimer telephoned the (“Environmental Protection Agency”) office in San Francisco to report a possible discharge of oil into the Gila River. Measurements of the spill were taken later from which it was determined that 24,000 gallons of the 173,800 gallons spilled had been recovered; the remainder apparently was lost in the ground and in the river. Water samples downstream from the pond contained oil from the spill. Section 1321(b)(5), in pertinent part, provides: “Any person in charge of an onshore facility . . . shall, as soon as he has knowledge of any discharge of oil from such facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined . . . .” The pertinent provisions of paragraph (3) provide: “The discharge of oil . into or upon the navigable waters of the United States ... in harmful quantities as determined by the President under paragraph (4) of this subsection, is prohibited . . . .” Paragraph (4) says: “The President shall by regulation, to be issued as soon as possible after October 18, 1972, determine for the purposes of this section, those quantities of oil . . the discharge of which, at such times, locations, circumstances, and conditions, will be harmful to the public health or welfare of the United States . . . .” Kennecott argues that section 1321(b)(5) is void for vagueness because the statute and its referents fail adequately to define “harmful quantities,” “immediately,” and “appropriate government agency.” We think that these terms are adequate to notify persons in charge of onshore oil facilities that their failure promptly to notify a governmental agency concerned with navigable waters or environmental protection about a substantial oil spill will subject them to potential criminal liability. The terminology is neither highly technical nor obscure. The language is well within due process limits. (See Connally v. General Construction Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.) Kennecott’s vagueness argument is not based on that common sense reading of the statute. It argues that the statute beclouds itself by referring to a complex regulatory scheme, including a presidential directive to define “harmful quantities” that was not timely promulgated. The immediate statutory predecessor of 33 U.S.C. § 1321(b)(3)-(5) was former 33 U.S.C. § 1161(b)(2)-(4). The language of present section 1321(b)(5) challenged for vagueness is identical to the provisions of section 1161(b)(4), which we upheld against that very charge in United States v. Boyd (9th Cir. 1973) 491 F.2d 1163. The citation to Boyd would end the matter but for the wrinkle that the Administrator of the EPA, to whom the President, under 33 U.S.C. § 1321(b)(4), had delegated his duty to define “harmful” (Exec. Order No. 11,735, 38 Fed.Reg. 21243 (1973)), did not promulgate the implementing definitions until after this oil had spilled. This lapse gives some plausibility to Kennecott’s argument that the statute is unfinished and thus vague. The argument fails because the old definitions of harmfulness promulgated under former 33 U.S.C. § 1321, as amended in 1972, 33 U.S.C. § 1251 (Supp.1974) saved “All rules, regulations, orders, determinations delegations or other actions duly issued . . . pursuant to the Federal Water Pollution Control Act [33 U.S.C. §§ 1151 et seq., including § 1161]” and continued them “in full force and effect . . . until modified or rescinded in accordance with the Federal Water Pollution Control Act as amended by this Act.” In short, this statute gave continued life to the regulations that we considered in Boyd until new ones were promulgated, and no hiatus exists. Kennecott tries to avoid the result by arguing that the savings clause continuing the old regulations directly conflicts with the language of section 1321(b)(4) stating that “harmful quantities” shall be defined “as soon as possible after October 18, 1972.” We see no conflict. Certainly Congress wanted new regulations drafted “as soon as possible,” but it manifested no intent to void existing regulations while awaiting a new set, nor did it suggest that administrative tardiness would have any impact on the effectiveness of the new statute as read with the old, saved regulations. Kennecott vigorously argues that the statute and regulations should be struck down because the statutory scheme is too complex and the reference to “appropriate agency” is too indefinite to give adequate notice. We are not convinced. Executive Order No. 11,735 is not hard to find, and the order itself cites the relevant sources of definitions. The statutory scheme is not unduly labyrinthine; indeed, it is simple as compared with some other statutory schemes carrying criminal penalties, such as the federal income tax statutes and regulations. (See Lambert v. California (1957) 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228.) We read the term “the appropriate agency of the United States” as encompassing any federal agency concerned with water and environmental pollution or navigable waters. That interpretation is consistent with the applicable regulations specifically defining the persons and agencies to be notified of oil spills. (33 C.F.R. § 153.105; cf. United States v. Boyd, supra, 491 F.2d 1163.) Mortimer’s call to the EPA office, reporting the spill, would have satisfied Kennecott’s statutory obligation if the call had been made reasonably promptly, such as Saturday morning, December 1, and not the following Monday afternoon. The evidence was sufficient to sustain the verdict. In Boyd, we upheld the conviction of a ship captain who failed promptly to report the discharge of about 30 gallons of diesel oil from his vessel into a waterway. Here, the jury had evidence from which it could properly have concluded that Kennecott spilled over 100,000 gallons of oil into the Gila. It did not have to believe the testimony of Mortimer and Fitch that the oil slicks that they saw were a few the size of a palm print. The jury had ample evidence before it to charge Kennecott with knowledge that harmful quantities of oil had been accidentally discharged into the Gila. No prosecutorial misconduct occurred. Kennecott claims misconduct in the prosecutor referring in closing argument to the existence of constant telephone service to reporting agencies. Contrary to Kennecott’s assertion, evidence had been introduced to support the availability of 24-hour telephone answering services for the Coast Guard Offices in Phoenix and in Washington, D.C. Whether or not the San Francisco EPA office had similar service is not relevant because it was not the only appropriate agency and because Kennecott offered no evidence that it had tried to report the spill to any agency until it successfully notified EPA on the afternoon of December 3. Affirmed.

Procter & Gamble Co. v. City of Chicago

SWYGERT, Chief Judge. This appeal presents the question of whether an ordinance of the City of Chicago that bans the use of detergents containing phosphates is unconstitutional on the ground that it results in an impermissible interference with interstate commerce. The district court decided that the ordinance is unconstitutional. We disagree. The ordinance was adopted by the City Council after its Committee on Environmental Control had held public meetings for three days. The measure provided that the sale of detergents containing any phosphorous after June 30, 1972 constituted a criminal offense. Most detergents sold in this country contain phosphates which are compounds containing the element phosphorous. The present action was brought seeking declaratory and injunctive relief. Plaintiff-appellee Procter and Gamble Company is a manufacturer of phosphate detergents. Plaintiff-appellee FMC Corporation processes and manufacturers sodium tripolyphosphate and other phosphate products for use in detergents. Three other plaintiffs were dismissed for failure to prove the jurisdictional amount and have not appealed. The second amended complaint alleged only a violation of the Commerce Clause of the Constitution (Article I, Section 8, Clause 3) and the case was tried on that issue. A substantial amount of evidence, including exhaustive expert scientific and technical testimony by many witnesses, was presented both in court and by depositions. As the district court observed, this evidence is much too extensive to be set out in any detail. We think we need present only a broad outline of the more relevant evidence. The plaintiffs unquestionably showed that the ordinance has had an adverse effect upon their businesses which admittedly are national in scope. Procter and Gamble was unable to sell any detergents in the Chicago area for five months after June 30, 1972 and lost $4,700,000 in sales as a result. FMC lost $500,000 worth of sales of phosphates as a result of the ordinance. Further, whereas before the ordinance Procter’s Chicago plant was able to supply over 96 percent, of the requirements for the six-state “Chicago Plant Area,” after the ordinance became effective the plant could supply only 51 percent, which necessitated shipments to this area from other Procter plants in Louisiana, Missouri, and Kansas. The result was the establishment of a different and, from the company’s viewpoint, a less efficient interstate system of distribution of its products. Evidence was also introduced concerning the warehousing practices of the retail grocery chains serving Chicago and the surrounding area. These chains, which include chains of independents, warehouse their products on an area-wide basis as opposed to a city-wide basis. Goods are purchased from the manufacturer and stored in warehouses for eventual distribution to the individual retail stores. In the Chicago area, the same warehouses also service stores in northern Illinois, northern Indiana, southern Wisconsin, and Michigan. At the warehouses, each product is stored in its own particular area called a slot. There was testimony that these warehouses will not “double slot” a product and thus refused to carry both phosphate and non-phosphate versions of the same product. The explanation is that there is not sufficient space in the warehouses and there would be the possibility of a violation of the ordinance if phosphate formulas were accidently shipped to Chicago stores. Of the seventeen major Chicago area customers of Procter and Gamble, fifteen chose to carry only non-phosphate detergents. The result has been that consumers in areas of Illinois or the other adjacent states where the sale of phosphate detergents is legal can purchase only non-phosphate formulas of the major detergents from stores which are part of these fifteen chains. Thus, the Chicago ordinance affected Procter and Gamble’s ability to sell its phosphate detergents in other states. The bulk of the evidence dealt with the nature and effect of phosphates and particularly their effect on the water moving in the Illinois Waterway. Phosphates are not a problem in and of themselves. They are not harmful to most humans and are even added to water by some communities for the purpose of softening. The aspect of phosphates that causes concern is their nutritive contribution to the eutrophication of rivers or lakes. Eutrophication is a process of aging, whereby a body of water becomes over-nourished in nutrient elements such that there occurs an extensive growth of green plants or nuisance algae. Nuisance algae can result in an unpleasant odor and a bad taste in drinking water. It is the elimination and prevention of these algae that is desirable. Some controversy exists, however, concerning the relationship of phosphorous and eutrophication. An abundance of phosphorous does not always result in increased eutrophication. It is a more complex process and its exact nature is somewhat in dispute. Other nutrients including nitrogen and carbon are needed for eutrophication. So far as the nutrient aspect of eutrophication is concerned the important inquiry centers on the idea of the “limiting nutrient” or “limiting factor.” The “limiting nutrient” is that nutrient that is in the shortest supply relative to the need for it for plant growth. It is the factor which limits any further aquatic growth. The district court found that phosphorous can be a “limiting factor” for nuisance algae only at .02 milligrams per liter or less. There is some evidence, however, that phosphorous is the nutrient that is most easily controlled. The ordinance’s most direct effect is on the Illinois Waterway because the City’s sewage effluent flows into it. This Waterway, which includes the Illinois River, is a water source for some communities, but not for Chicago. The Waterway has a very high percentage of phosphorous. The district court determined that before the passage of the ordinance the amount of phosphorous present in this Waterway was at least twenty-five times as much as is necessary to sustain nuisance algae. Still, there is a question of whether there is any nuisance algae problem in the Illinois River. Although the City introduced photographs showing the presence of such algae, the district court concluded “that there was no significant amount of nuisance algae in the Illinois River.” Explanations offered for this lack of growth included the excessive turbidity of the river which prevents needed sunlight, periodic flushing, and possibly some undefined trace elements which inhibit such growth. Also, the district court found that the elimination of Chicago phosphates alone would not result in reaching the “limiting factor” level, though a 66 percent reduction did result in at least part of the Waterway after the ordinance had been in effect. Finally, there is the evidence concerning Lake Michigan which is the source of Chicago’s water supply. The danger of nuisance algae is more pronounced with regard to Lake Michigan because it does not have the flushing quality of a river. Moreover, the phosphorous concentration is at about the “limiting factor” of .02 milligrams per liter. But unlike some of the other communities along the lake, Chicago’s sewage does not normally flow into the lake; only during excessively heavy rainstorms is one of two rivers reversed so that sewage flows into Lake Michigan. The district court determined that such reversals occurred only four times within a ten year period, though there was also testimony that the frequency of such reversals is increasing. As to the amount of phosphates entering the lake during a year in which a back-flow resulted, the conclusion of the district court was that detergents contributed only 250 tons or about three percent of the total entering the lake each year. Based on this evidence the trial court determined that the phosphate ban was unconstitutional. It decided that the ordinance resulted in increased costs of manufacture and distribution and burdened interstate commerce. Once the plaintiffs had proven this much the court held that the City was then required to justify the ordinance by showing some need to protect the public health, safety, or welfare. Though it found that the “ordinance was enacted in good faith and for laudatory objectives,” the justifications offered for the ordinance were not sufficient to outweigh its interference with interstate commerce. The court held that the City did have the power to protect the water quality for persons living downstream, but the ordinance by itself would not have any beneficial effect on the Illinois Waterway. The actual effect on Lake Michigan was apparently considered too minimal to support the legislation; the theory that the City could enact the ordinance in order to influence other communities to stop dischaiging phosphates into Lake Michigan was rejected. Though the court conceded that such an ordinance might be sustained in some other jurisdiction where the water supply situation is different, it concluded that Chicago could only enact the ordinance on a standby basis to become effective only when other controls have brought the phosphorous content of the Illinois Waterway down to the “limiting level.” I It is difficult to discern the precise test that should be used to determine when a state or local legislative enactment’s effect on an area of interstate commerce that has not been preempted by Congressional legislation is violative of the Commerce Clause of the Constitution. It is clear that we must first decide whether there is such an effect and what it is, for if we find no effect our inquiry need not progress. However, if some effect is found then we must proceed to consider whether the legislative body “has acted within its province, and whether the means of regulation chosen are reasonably adapted to the end sought.” The more difficult question is whether our analysis should encompass an additional step if the legislation is found to be a reasonable means of achieving a legitimate end. The predominant test utilized by the Supreme Court appears to require that the burden imposed on interstate commerce be balanced against the local benefit in order to determine the ultimate question of constitutionality. See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), and Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). The Court’s most recent formulation is that contained in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970): Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. There is some support, though, for the proposition that once it is determined that the legislation is a reasonable means of achieving a nondiscriminatory, legitimate goal it should be deemed constitutional and any further weighing process, need not occur. One commentator has suggested that this “third stage” balancing process is undesirable because it can lead to the usurpation of the legislative role. Moreover, it is argued that in fact the Supreme Court has perhaps eliminated this final balancing step by its opinion in Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad Co., 393 U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968). Brotherhood involved the validity of the Arkansas “full-crew” laws for railroads. The district court had analyzed conflicting evidence concerning the safety value of such laws and determined that at best they provided for a small increment in safety not worth the cost. This was found not to outweigh the burden on interstate commerce. In reversing, the Supreme Court indicated that the analysis endorsed by the lower court was incorrect: We think it plain that in striking down the full-crew laws on this basis, the District Court indulged in a legislative judgment wholly beyond its limited authority to review state legislation under the Commerce Clause. The matter was one properly left for the legislature because the evidence “leaves little room for doubt that the question of safety in the circumstances of this case is essentially a matter of public policy, and public policy can, under our constitutional system, be fixed only by the people acting through their elected representatives.” The Brotherhood case has been relied upon in cases similar to the one at bar. In discussing the Commerce Clause implications of an environmental statute a state court commented: The language of Pike v. Bruce Church, Inc., supra, does not mechanically compel a weighing process in every case. The language is instructive in appropriate cases rather than mandatory in all cases. . . The United States Supreme Court recognized the inappropriateness of a weighing process in cases of non-comparable benefit and injury in Firemen v. Chicago, R. I. & P. R. Co..... Indeed, one court confronted with a challenge to the same type of legislation before us adopted the Brotherhood opinion as the controlling case. Our case, we believe, has elements that require a compromise between Brotherhood and Pike. Like Brotherhood there is conflicting evidence concerning the value of this legislation. Here the conflict relates more to the question of whether the ordinance will result in preventing nuisance algae, as opposed to the question of how much benefit there is from the removal or prevention of such algae. The latter is the type of “public policy” question that is directly addressed in Brotherhood. The district court did not and should not have evaluated the benefits to be derived from the improved water quality associated with the elimination of nuisance algae. It was proper, however, for the court to consider the “factual” question of whether the ordinance has any relationship to the elimination of nuisance algae. The question that we are faced with is how much weight, if any, should be accorded the legislative body’s determination that the means are reasonably related to achieving the end. In the present case we think that it is at this point that the Pike balancing stage occurs. The district court addressed this issue as if it was an ordinary factual dispute over a technical matter that should be decided without the benefit of a presumption. It is our view, however, that if the burden on interstate commerce is slight, and the area of legislation is one that is properly of local concern, the means chosen to accomplish this end should be deemed reasonably effective unless the party attacking the legislation demonstrates the contrary by clear and convincing proof. If it is determined that this presumption should be applied, no further balancing need be undertaken. The end has already been deemed legitimate and the burden on interstate commerce slight. If the legislation is a reasonable means to that end it is constitutional. II Having in mind the framework of our analysis, we begin by considering what, if any, burden was imposed on interstate commerce by this ordinance. The first major argument raised by the plaintiffs, and apparently accepted by the district court, is that the ordinance burdened interstate commerce by impairing the normal operation of companies having interstate sales and requiring these companies to create new, and less direct, shipping routes. This argument is based on the fact that Procter and Gamble’s plant in the Chicago area could not adequately supply its six-state area with detergents because the plant had to manufacture two lines of detergent products and thus reduce its capacity. The result was that products had to be shipped to some of these states from plants which happened to be at different, and often further, locations. The principal cases relied on to support this theory involve interstate carriers' whose ability to efficiently transport other’s goods through particular states was permanently impaired. With our case, we are not confronted with a situation in which legislation has reduced the effectiveness of a means of transportation itself. In this context the ordinance is not a burden on interstate commerce, but is merely a “burden” on a company which happens to have interstate distribution facilities. The effect of the ordinance is that the particular interstate systems of distribution used by Procter and Gamble and other detergent companies before the passage of the ordinance can no longer be used. This is because of the freely chosen geographical locations of their various plants, not because of the requirements of this ordinance. There is no impairment of the ultimate ability to transport in interstate commerce in the most efficient and economical manner possible. While this factor might necessitate a change in certain production facilities, it does not rise to the level of an unconstitutional burden on interstate commerce. Plaintiffs also argue that the ordinance is a burden on interstate commerce because there is a “potential for conflicting legislation.” Other jurisdictions, including some within the Chicago marketing area, have enacted phosphate detergent legislation, and it is urged that such local legislation might conflict with each other so as to inhibit the uniformity necessary for the national manufacture and distribution of detergents. It is claimed that Milwaukee has an ordinance that not only restricts phosphates, but also prohibits highly alkaline detergents which have been used as substitutes for phosphate detergents. But there is no evidence in the record to prove that any phosphate substitutes used by the appellees in Chicago violate Milwaukee’s ordinance. The Supreme Court has indicated that in a case involving environmental legislation it is actual conflict, not potential conflict, that is relevant. Moreover, once again the plaintiffs have drawn the main support for their argument from the cases involving interstate carriers. The importance of uniformity is not as great in the present type of case in terms of interstate commerce. As Judge Stevens of this circuit has stated: The primary burden which is placed upon the petitioner Colgate involves nothing more than the changing of production facilities at the point of origin. There is no interference mandated by the County Law with transit across the state lines . [W]e think it certainly is true where you have a carrier who necessarily goes' from state to state carrying the goods of third parties there is a higher interest in uniformity throughout the nation, but with réspect to a commercial enterprise such as a manufacturer of detergents there is not the same national interest in uniformity throughout the country. No burden has been shown based on this theory. Another argument presented by plaintiffs is that the ordinance burdens interstate commerce because it amounts to an embargo on a safe, useful, and unique product of commerce without any corresponding local benefit. We find no merit to this argument. In essence, it is not a Commerce Clause argument but one based on substantive due process, an issue not before us. The only Commerce Clause cases cited for this proposition involve situations in which a state has attempted to achieve a local purpose by discriminating against out-of-state producers or manufacturers. There is no discrimination in this case. The ordinance does not require that detergents be manufactured in Chicago or Illinois and does not benefit manufacturers who are located there. There is one theory of plaintiffs, however, in which we find some merit. This ordinance does have an extraterritorial effect because of the four-state warehouse marketing system employed by the major wholesale purchasers of detergents. Since a substantial number of the retail grocery stores within a 150 mile radius of Chicago are supplied from seventeen grocery warehouses in or near Chicago, the refusal of these warehouses to “double slot” detergents means that many people outside Chicago cannot buy phosphate detergents even though they wish to use them. Potential purchasers in other states are prevented from obtaining a detergent formula that manufacturers may legally sell in those states. Though the ordinance may not directly dictate such a result, one effect is that the free flow in commerce of a particular product is disrupted. Such a disruption must be deemed a burden on interstate commerce. Still, there is the question of how substantial is this burden. It is important to realize that this burden is one that was not intended by the City Council, even though that factor is not determinative. The effect is an incidental one due to the nature of the grocery warehouse system over which the City Council has no control. Moreover, all the potential purchasers of phosphate detergents in this area outside Chicago are not affected by the ordinance. Other jurisdictions in the Chicago marketing zone also have limitations on phosphate detergents. Purchasers in these areas are restricted by their own local legislation. And in the areas without such legislation phosphate detergents assumedly will be available at those stores which are not part of these chains. Two of the seventeen chains chose to carry phosphate formula detergents, so such products will also be available at those stores. While there might be people who cannot buy phosphate detergents in their own towns, the foregoing factors tend to lessen the burden. Indeed, there is the possibility that manufacturers might be able to “drop-ship” directly from the plant to stores in some areas. Although this might not be the customary or most economical procedure, Procter and Gamble distributes its products in this manner for about one percent of its total business. We are troubled by the contention that these large warehouses absolutely refuse to stock two formulas of the same detergent. Procter and Gamble and the other two large detergent manufacturers are huge companies that could exert at least some “leverage” on these warehouses. Admittedly, there is testimony that Procter and Gamble has tried to convince them to handle both and has had very limited success. But we wonder whether such leverage would not increase when this lawsuit is not a consideration. One would think that the grocery chains would have an incentive to carry both types of detergents in order to compete with those stores selling what Procter and Gamble claims is the “superior” detergent formula. We are not totally persuaded by the grocery chains’ explanation of why only one type of detergent can be stocked. The major reason presented is lack of space. But it would seem that the total number of boxes of detergents sold would be about the same whether two formulations or only one are offered. The aggregate supply of cartons kept in the warehouse would not increase unless it is necessary to maintain the same amount of product in stock even though less of it is being sold. It is not clear from the record why more actual space in the warehouse would be necessary if the same number of cartons is separated into two types rather than one. Possibly, the explanation is due to the limited availability of warehouse slots which, in at least some warehouses, are metal racks. But again the record does not show why the slots that are used for detergents cannot be split into two smaller slots that could accommodate the stock necessary for each type of detergent, assuming the total number of boxes in stock has not changed. Nor can we unquestionably accept the contention that carrying both types of detergents would result in a great risk of accidental shipments to and sale of phosphate detergents by stores within Chicago in violation of the ordinance. . If this were the only concern we are sure that some procedure could be arranged to minimize this possibility. For instance, the cartons that contain boxes of phosphate could be made a different col- or so they would be easily distinguishable. Certainly under such a procedure the employees of the individual stores could recognize a mistake and not sell the illegal detergent. We recognize that the Chicago ordinance combined with the grocery warehousing practice can result in interfering with the full distribution of phosphate detergents to areas outside of Chicago. But many of these consumers would probably have access to such products either at other stores or at chain stores that might receive drop-shipments. Our analysis has indicated that if there was sufficient demand it might even be possible that all the large warehouses would carry phosphate detergents. Overall, we conclude that the ordinance’s effect on full access to certain products by consumers in parts of other states can only be classified as a slight burden on interstate commerce. Ill Having determined that the ordinance does impose some burden on interstate commerce, we are required to consider whether the interest sought to be served by the legislation is a legitimate local concern. As with most cases of this type, the goal of this legislation can be stated in its ultimate terms — protection of health and welfare. For purposes of our analysis, we believe that it would be more useful to express the objective simply as the prevention and elimination of nuisance algae. This is an environmental objective toward which local legislation may properly be aimed. In broad terms, this legislation is part of the overall attack on the problem of water pollution. Though there is federal intervention in this general area, this does not prevent local attempts to deal with one of our most immediate and difficult problems. As the Supreme Court has said in regard to a city’s power to enact legislation designed to curb pollution: In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government. Indeed, Congress appears to have specifically encouraged such local legislation. The Federal Water Pollution Control Amendments of 1972 provide: Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirements respecting control or abatement of pollution; Moreover, as noted earlier, there are no discriminatory aspects associated with this purpose that might invalidate it. The objective is legitimately local and non-discriminatory which means that it may properly be the end toward which local legislation is addressed. Finally, we see no problem in the fact that the ordinance is aimed, at least in part, toward nuisance algae downstream from Chicago. We agree with the conclusion of the district court that the City can be legitimately concerned with preventing any damage to its neighbors caused by Chicago’s actions. IV We are now at the stage where we must determine whether the ordinance is a reasonable means of reaching the end desired. We have previously concluded that the burden on interstate commerce that results from this ordinance is slight and the objective of this legislation is legitimate. We hold that the burden is so slight compared to the important and properly local objective that the presumption we discussed earlier should apply. We will accept the City Council’s determination that this phosphate ban is a reasonable means of achieving the elimination and prevention of nuisance algae unless we find that the plaintiffs have presented clear and convincing proof to the contrary. We discuss first the Illinois Waterway because this is the heart of the factual controversy. An initial consideration is whether there is presently a nuisance algae problem in the Illinois River. The City did introduce some testimony and photographs indicating the existence of excessive algae blooms in the Illinois River. But the plaintiffs presented credible evidence to the effect that presently there is,no nuisance algae growth in the Waterway. The district court concluded that there was no “significant” growth. We can at least assume that there is some nuisance algae and the possibility of more in the future, since there was no convincing proof that such an increase will not occur. The testimony that the excessive turbidity and flushing quality of the river prevent algae blooms is far from conclusive. Indeed there are apparently some nuisance algae at present. The inhibitory factor might be a nutrient other than phosphorous that will greatly increase in concentration. The prospect for the future is unknown. The crux of the matter is actually the question of whether the phosphorous level in the Waterway will ever be relevant to the control or removal of nuisance algae. We do not believe that the plaintiffs have met their burden of showing convincingly that limiting the quantity of phosphorous can never be the key to the problem. Admittedly, the evidence seems clear that phosphorous is not the “limiting factor” in the Waterway at this time. Moreover, even with the elimination of detergent phosphates from the Chicago sewage effluent, the phosphorous level would not reach the limiting point. The Chicago ordinance, by itself, would have no immediate effect on the Waterway. This does not indicate, however, that the ordinance is not a means of dealing with nuisance algae. The plaintiffs introduced evidence to show that the amount of phosphorous in the Illinois River could greatly increase without increasing nuisance algae. Even if this is true, it only proves that phosphorous is presently not the “limiting nutrient.” It does not prove that phosphorous might not be the “limiting nutrient” at some point in time. Indeed, Chicago’s ordinance appears to be a significant first step toward that goal. We do not agree with the district court that it can only be enacted on a stand-by basis. If this were the law, all programs aimed at eliminating phosphorous from the Waterway would have to be enacted at the same time. We can assume that other communities might follow Chicago’s lead and prevent phosphate detergents. Nor do we think that there was clear evidence that if all phosphorous from detergents were eliminated there would still be other uncontrollable sources that would keep the level above the limiting point. There was testimony that indicated that agricultural run-off of phosphorous can be controlled. For Commerce Clause purposes the City Council was justified in believing that eventually its phosphate ban, in conjunction with other actions, would result in eliminating and preventing nuisance algae in the Illinois Waterway. The effectiveness of the legislation is also shown, to some extent, by the evidence concerning Lake Michigan. There is no question that both eutrophication and phosphorous are serious problems in regard to Lake Michigan. Though Chicago might contribute relatively little phosphorous to the lake, the phosphorous level is at such a precarious point that even this minimal amount takes on added importance. Further, contrary to the district court’s view, we find that Chicago has a legitimate interest in banning phosphate detergents as an example for other communities presently releasing their sewage into Lake Michigan. Chicago is attempting to convince these communities to control their phosphate discharge into the lake. Chicago could reasonably decide that it would be aided in this endeavor if it could show these other jurisdictions that Chicago is willing to endure whatever hardships may be associated with the loss of phosphate detergents. Given the other aspects of the legislation that support its presumption of effectiveness, we need not reach the question of whether this hortatory element by itself could support the conclusion that the ordinance provides a means sufficiently effective to be declared constitutional. Based on all the evidence the presumption afforded the City Council’s judgment has not been overcome. This case has presented a very difficult constitutional problem. On the basis of the above analysis we have resolved the question in favor of the constitutionality of the ordinance. Accordingly, the judgment of the district court is reversed. . Soap and Detergent Ass’n v. Chicago, 357 F.Supp. 44 (N.D.Ill.1973). . Chicago, Ill., Code ch. 17, art. VII, § 17-73(b) (1973) provides: It shall be unlawful for any person, firm, or corporation to sell, offer or expose for sale, give or furnish any synthetic detergent or detergent containing any phosphorus, expressed as elemental phosphorus, including synthetic detergents or detergents manufactured for machine dishwashers, dairy equipment, beverage equipment, food processing equipment and industrial cleaning equipment, within the City of Chicago from and after June 30, 1972. . 357 F.Supp. at 49. . 357 F.Supp. at 51. . S. C. Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 190, 58 S.Ct. 510, 517, 82 L.Ed. 734 (1938). . Obviously, there is some degree of balancing involved in the initial determination of whether the end sought is a legitimate local concern. . D. Engdahl, Constitutional Power: Federal and State in a Nutshell (1974). Engdahl’s theory is discussed in Note, Use of the Commerce Clause to Invalidate Anti-Phosphate Legislation: Will it Wash?, 45 U.Colo.L.Rev. 487 (1974). . 393 U.S. at 136, 89 S.Ct. at 327. . 393 U.S. at 138, 89 S.Ct. at 328. . American Can Co. v. Ore. Liquor Control Comm’n, 517 P.2d 691, 697 (Or.App.1974). . Soap and Detergent Ass’n v. Clark, 330 F.Supp. 1218 (S.D.Fla.1971). . See also the suggestion for a somewhat different presumption in Note, supra, n. 7, at 493. . Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). . A similar conclusion was reached in the analogous case of Colgate-Palmolive Co. v. Erie County, 68 Misc.2d 704, 327 N.Y.S.2d 488, 491 (Sup.Ct.1971): . Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 448, 80 S.Ct. 813, 4 LEd2d 852 (1960) . Soap and Detergent Ass’n v. Offutt, 3 ERC 1117, 1119 (S.D.Ind.1971). . Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911); Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890). . There is no contention in this case that this particular area of legislation has been preempted by Congressional action. . Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 442, 80 S.Ct. 813, 815, 4 L.Ed.2d 852 (1960). . The relevance of such Congressional encouragement has been recognized in Parker v. Brown, 317 U.S. 341, 367-368, 63 S.Ct. 307, 87 L.Ed. 315 (1943). . 33 U.S.C. § 1370 (Supp. II, 1973). . We note that even if it is a relevant consideration at this point, there is not a reasonable and less burdensome alternative way to eliminate phosphates from the sewage effluent. Elimination of phosphates by means too great a waste of chemicals to be deemed a constitutionally mandated alternative. See generally Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951). . The City has argued in its brief that the ordinance also helps Lake Michigan because it has the result of preventing other areas from receiving phosphate detergents too, and thus these areas are forced to control their discharge^ of phosphorous into the Lake. We totally reject the contention that the effectiveness of the ordinance can be supported on the basis of this extraterritorial coercion. We do not believe that the City Council considered this possibility and we in no way rest our decision on this argument.

United States v. Ashland Oil & Transportation Co.

EDWARDS, Circuit Judge. This case poses three questions of vital importance to protection of the water resources of these United States: 1) Did Congress in adopting the Federal Water Pollution Control Act Amendments of 1972 intend to control both discharges of pollutants directly into navigable waters and discharges of pollutants into nonnavigable tributaries which flowed into navigable rivers? We answer this question “yes.” 2) Does Congress have constitutional authority under its interstate commerce powers to prohibit discharge of pollutants into nonnavigable tributaries of navigable streams? We answer this question “yes.” 3) Assuming the affirmative answers set forth above, under the Federal Water Pollution Control Act is the government required to bear the burden of proof to establish not only that (as here) pollutants were discharged into a non-navigable tributary of a navigable river, but that in fact these same pollutants reached and polluted the navigable river? We answer this question “no.” Defendant-appellant Ashland Oil was indicted for failing “immediately” to report the discharge of 3,200 gallons of oil into the water of Little Cypress Creek on February 20, 1973. The indictment alleged violation of 33 U.S.C. § 1321(b)(5) of the Federal Water Pollution Control Act Amendments of 1972. The statutory provisions directly concerned are: “(5) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal ease, except a prosecution for perjury or for giving a false statement.” 33 U.S.C. § 1321 (b)(5) (1972). “(3) The discharge of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone in harmful quantities as determined by the President under paragraph (4) of this subsection, is prohibited, except (A) in the case of such discharges of oil into the waters of the contiguous zone, where permitted under article IV of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended, and (B) where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful. Any regulations issued under this subsection shall be consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards.” 33 U.S.C. § 1321(b)(3) (1972). The case was tried before Judge James Gordon in the United States District Court for the Western District of Kentucky. Ashland Oil was found guilty and on recommendation of the United States Attorney was fined $500. On appeal Ashland claims that Congress does not have the constitutional power to control pollution of nonnavi-gable tributaries of navigable streams and has not sought to do so in the statutes quoted above, that these statutes being criminal in nature should be strictly construed against the government, that Little Cypress Creek was non-navigable in fact, that the discharge never reached “navigable waters,” and that anyway it (Ashland) did report the oil discharge “immediately.” The case was tried chiefly on an extensive stipulation of facts: “STIPULATION — Filed September 20, 1973 Now comes the parties, by counsel, and stipulate as follows: 1. Ashland Oil and Transportation Company, a subsidiary of Ashland Oil Incorporated was a person in charge of the pipeline which discharged crude oil. 2. The Ashland Oil and Transportation Company pipeline from which the discharge occurred is located on and under land within the Western District of Kentucky, in Muhlenburg County, Kentucky. 3. The oil discharged directly into the waters of a small tributary to Little Cypress Creek at a point approximately 100 feet from the tributary’s confluence with Little Cypress Creek. 4. Ashland Oil and Transportation Company had certain knowledge of the exact location and origin of the spill by 7:00 p. m., February 20, 1973. 5. Ashland Oil and Transportation Company reported the spill to the United States Environmental Protection Agency in Atlanta through Mr. A. D. Headley, its employee, at 10:10 a. m., February 21, 1973. 6. Ashland Oil and Transportation Company discharge approximately 3200 gallons of crude oil which created a visible sheen on Little Cypress Creek before 7:00 p. m., February 20, 1973. 7. The Green River is navigable in fact at the point that Pond River empties into it. 8. That Cypress Creek is a tributary to Pond River and Pond River is a tributary to Green River. 9. Little Cypress Creek is a tributary to Cypress Creek. 10. Illinois Central Railroad and Peabody Coal Company both are engaged in interstate commerce and both discharge into Little Cypress Creek. 11. The Central City Kentucky Sewage Treatment Plant treats the waste coming from several motels and restaurants which are engaged in interstate commerce, and it discharges into Little Cypress Creek. 12. A portion of the Western Kentucky Parkway, a four lane toll road and major highway for interstate commerce running east and west through the State of Kentucky, is drained by Little Cypress Creek. 13. The Little Cypress Creek drains many farms through which it flows. These farms use equipment and materials which are received through interstate commerce, and their products affect interstate commerce. 14. The Little Cypress Creek drains the area in which Ashland Oil and Transportation Company facilities are located. 15. While the defendant does not stipulate in any way that it degraded the quality of the water of Little Cypress Creek, the parties do stipulate that the quality of the water in Little Cypress Creek affects the produce of the farms that it drains and to which it supplies water. 16. Ashland Oil and Transportation Company was aware on February 20, 1973 that the U. S. Environment Protection Agency and U. S. Coast Guard each maintains 24 hour telephone services for receiving reports of oil and hazardous material spills.” As noted above in the stipulation, Little Cypress Creek is a tributary to Cypress Creek, which is a tributary to Pond River, which is a tributary to Green River. The stipulation indicates that of these, only Green River is actually a navigable river “in fact” in terms of waterborne commerce. I Interpretation of the Act The Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 through 1376, was first enacted in 1948. It was amended many times until it was substantially revised and reenacted in 1972. It is this statute which contains the two enforcement paragraphs, previously quoted, upon which the prosecution of this case depends. We do not, however, believe that § 1321(b)(3) and (5) can properly be interpreted without reference to the whole of the Congressional scheme of which they are merely a small, if important, part. To understand Congress’ purposes, we need to refer to the national goals and policies which Congress adopted: “(a) The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter— (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works; (5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and (6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans.” 33 U.S.C. § 1251(a)(1-6) (1972). Since the term “navigable waters” is employed in the first stated national goal, it is important at the outset to quote the definition of that term which was added by the 1972 Amendments and is applicable to the whole chapter: “Except as otherwise specifically provided, when used in this [chapter] : * -X- * * X X (7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (1972). In the same definition section, the term “pollution” is defined: “(19) The term ‘pollution’ means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” 33 U.S.C. § 1362(19) (1972). The intention of Congress to eliminate or drastically reduce water pollution throughout the waters of the United States is made clear in many provisions of the Act, of which the following are only a sample: “(a) The Administrator shall, after careful investigation, and in cooperation with other Federal agencies, State water pollution control agencies, interstate agencies, and the municipalities and industries involved, prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters. In the development of such comprehensive programs due regard shall be given to the improvements which are necessary to conserve such waters for the protection and propogation of fish and aquatic life and wildlife, recreational purposes, and the withdrawal of such waters for public water supply, agricultural, industrial, and other purposes. For the purpose of this section, the Administrator is authorized to make joint investigations with any such agencies of the condition of any waters in any State or States, and of the discharges of any sewage, industrial wastes, or substance which may adversely affect such waters. X X X X X- X “(e)(1) The Administrator shall, at the request of the Governor of a State, or a majority of the Governors when more than one State is involved, make a grant to pay not to exceed 50 per centum of the administrative expenses of a planning agency for a period not to exceed three years, which period shall begin after October 18, 1972, if such agency provides for adequate representation of appropriate State, interstate, local, or (when appropriate) international interests in the basin or portion thereof involved and is capable of developing an effective, comprehensive water quality control plan for a basin or portion thereof. * * * * * w “(3) For the purposes of this subsection the term ‘basin’ includes, but is not limited to, rivers and their tributaries, streams, coastal waters, sounds, estuaries, bays, lakes, and portions thereof, as well as the lands drained thereby.” 33 U.S.C. § 1252(a), (c) (1), (3) (1972). “(a) The Administrator shall establish national programs for the prevention, reduction, and elimination of pollution and as part of such programs shall— * * * -X* -X- * “(5) in cooperation with the States, and their political subdivisions, and other Federal agencies establish, equip, and maintain a water quality surveillance system for the purpose of monitoring the quality of the navigable waters and ground waters and the contiguous zone and the oceans and the Administrator shall, to the extent practicable, conduct such surveillance by utilizing the resources of the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, the Geological Survey, and the Coast Guard, and shall report on such quality in the report required under subsection (a) of section 1375 of this title; * * * * *■ * “(i) The Administrator, in cooperation with the Secretary of the department in which the Coast Guard is operating, shall— (1) engage in such research, studies, experiments, and demonstrations as he deems appropriate, relative to the removal of oil from any waters and to the prevention, control, and elimination of oil and hazardous substances pollution; . . . .”33 U.S.C. § 1254(a)(5), (i)(1) (1972). Other Congressional concerns with water pollution which extend far beyond waters which are navigable in fact are § 1254(n), dealing with studies of the effects of pollution upon estuaries and estuarial zones, § 1254 (p), agricultural pollution, § 1254(q), studies of sewage in rural areas, and § 1255(b), demonstration projects for control of pollution in river basins. Important definitions include: “(a) For the purpose of this section, the term — ■ (1) ‘oil’ means oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil; * * * * * * (5) ‘United States’ means the States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands; * * * * * -X- (8) ‘remove’ or ‘removal’ refers to removal of the oil or hazardous substances from the water and shorelines or the taking of such other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches; *X* * * # * * (10) ‘onshore facility’ means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land; * * * *” 33 U.S.C. § 1321(a)(1), (5), (8), (10) (1972). Section 1321(b)(1) provides: “The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.” Section 1321(c)(1) provides: “Whenever any oil or a hazardous substance is discharged, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, the President is authorized to act to remove or arrange for the removal of such oil substance at any time, unless he determines such removal will be done properly by the owner or operator of the vessel, onshore facility, or offshore facility from which the discharge occurs.” Section 1321(e) provides: “In addition to any other action taken by a State or local government, when the President determines there is an imminent and substantial threat to the public health or welfare of the United States, including, but not limited to, fish, shellfish, and wildlife and public and private property, shorelines, and beaches within the United States, because of an actual or threatened discharge of oil or hazardous substances into or upon the navigable waters of the United States from an onshore or offshore facility, the President may require the United States attorney of the district in which the threat occurs to secure such relief as may be necessary to abate such threat, and the district courts of the United States shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.” 33 U.S.C. § 1321(b)(1), (c)(1), (e) (1972). We have indulged this much quotation from the statutory language in order to make the point that Congress’ clear intention as revealed in the Act itself was to effect marked improvement in the quality of the total water resources of the United States, regardless of whether that water was at the point of pollution a part of a navigable stream. We believe Congressional intent was accurately portrayed by Representative Dingell, one of the active supporters of S. 2770: “Several of the provisions of the conference report deserve special mention in aid of explaining the intent of Congress with regard to the administration and enforcement of the revised Federal Water Pollution Control Act. Also, there are several provisions which give me special concern. * * * * * * “Third, the conference bill defines the term ‘navigable waters’ broadly for water quality purposes. It means all ‘the waters of the United States’ in a geographical sense. It does not mean ‘navigable waters of the United States’ in the technical sense as we sometimes see in some laws. “The new and broader definition is in line with more recent judicial opinions which have substantially expanded that limited view of navigability— derived from the Daniel Ball case (77 U.S. 557, 563 [10 Wall. 557, 19 L.Ed. 999]) — to include waterways which would be ‘susceptible of being used * * * with reasonable improvement,’ as well as those waterways which include sections presently obstructed by falls, rapids, sand bars, currents, floating debris, et cetera. “The U. S. Constitution contains no mention of navigable waters. The authority of Congress over navigable waters is based on the Constitution’s grant to Congress of ‘Power * * * To regulate commerce with Foreign Nations and among the several States * * * ’ (art. I, see. 8, clause 3). Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 [6 L.Ed. 23] (1824). Although most interstate commerce 150 years ago was accomplished on waterways, there is no requirement in the Constitution that the waterway must cross a State boundary in order to be within the interstate commerce power of the Federal Government. Rather, it is enough that the waterway serves as a link in the chain of commerce among the States as it flows in the various channels of transportation — highways, railroads, air traffic, radio and postal communication, waterways, et cetera. The ‘gist of the Federal test’ is the waterway’s use ‘as a highway,’ not whether it is ‘part of a navigable interstate or international commercial highway.’ Utah v. United States, 403 U.S. 9, 11 [91 S.Ct. 1775, 29 L.Ed.2d 279] (1971); U. S. v. Underwood, 4 ERC 1305, 1309 [344 F.Supp. 486] (D.C., Md., Fla., Tampa Div., June 8, 1972). “Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill. Indeed, the conference report states on page 144: ‘The conferees fully intend that the term navigable waters be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.’ ” 118 Cong.Rec. 33756-57 (1972). With the broad sweep of the Act in our minds and with this specific legislative interpretation by one of the House floor managers of the bill, we turn directly to the problems of statutory interpretation posed by this case. Appellant claims that the two paragraphs of Section 311 of the Act (33 U.S.C. § 1321 (b)(3), (5)) which are directly involved in this prosecution (See page 1319, supra) apply only to “navigable waters of the United States” in the classical meaning accorded them in 1871 in the case of The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871). Judge Gordon responded to this argument: “In form of a motion to dismiss, defendant contended that Section 311 of the Act applies only to the classical ‘navigable waters of the United States,’ and, therefore, does not provide jurisdiction over discharges into ‘waters of the United States’ as alleged in the information. That motion is denied. “To determine the clear meaning of the questioned criminal provision, one need go no further than the definitions provided in the Act. Congress defined ‘navigable waters’ as ‘waters of the United States.’ [33 U.S.C. § 1362 (7)]. To determine whether an oil discharge has entered waters regulated by Section 311 of the Act, a citizen simply inserts the statutory definition in place of the term ‘navigable waters.’ That navigable waters is sometimes followed by a prepositional phrase does not alter this obvious result except perhaps to emphasize the inclusion of the waters of all the geographic areas listed in the definition of ‘United States.’ [Section 311(5) of the Act; 33 U.S.C. Section 1321(5)]. Thus, it is unnecessary to rely on the government's supplemental argument that well established judicial philosophy ‘forbids a narrow, cramped reading’ of pollution legislation. United States v. Standard Oil Co., 384 U.S. 224, 226 [86 S.Ct. 1427, 16 L.Ed.2d 492] (1966); United States v. Republic Steel Corp., 362 U.S. 482, 491 [80 S.Ct. 884, 4 L.Ed.2d 903] (I960).” As Judge Gordon recognized, Congress in 1972 adopted a new definition of the term “navigable waters” for purposes of the Federal Water Pollution Control Act. The definition was added at a most meaningful point in Congress’ consideration of the Act by the Joint House Senate Conference Committee. It was placed in the general definition section, 33 U.S.C. § 1362(7) (1972), following the words “Except as otherwise specifically provided, when used in this [chapter] The definition reads “(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” Like the District Judge, we believe Congress knew exactly what it was doing and that it intended the Federal Water Pollution Control Act to apply, as Congressman Dingell put it, “to all water bodies, including main streams and their tributaries.” Certainly the Congressional language must be read to apply to our instant case involving pollution of one of the tributaries of a navigable river. Any other reading would violate the specific language of the definition just quoted and turn a great legislative enactment into a meaningless jumble of words. II The Constitutional Power Whatever Congress may have intended, its enactments to be valid must be within its legislative authority under the Constitution of the United States. Our forefathers in writing the Constitution could have had no concept of the water pollution problems of today. But they had a specific concept of the importance of interstate commerce and specifically gave Congress power to regulate it: “The Congress shall have Power To regulate Commerce among the several States. . . . ” U.S.Const, art. I, § 8, cl. 3. Likewise, the authors of the Constitution provided Congress broad legislative authority to pass laws concerning future unknown problems which might affect the health and welfare of the nation: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S.Const, art. I, § 1. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . . “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S.Const, art. I, § 8. See Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937); City of Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274 (1945). We believe that the language of the Federal Water Pollution Control Act and its legislative history show that the United States Congress was convinced that uncontrolled pollution of the nation’s waterways is a threat to the health and welfare of the country, as well as a threat to its interstate commerce. Obviously water pollution is a health threat to the water supply of the nation. It endangers our agriculture by rendering water unfit for irrigation. It can end the public use and enjoyment of our magnificent rivers and lakes for fishing, for boating, and for swimming. These health and welfare concerns are, of course, proper subjects for Congressional attention because of their many impacts upon interstate commerce generally. But water pollution is also a direct threat to navigation — the first interstate commerce system in this country’s history and still a very important one. Some years ago the United States Supreme Court supplied a dramatic illustration of this last problem: “The seaman lost his life on the tug Arthur N. Herron, which, on the night of November 18, 1952, while towing a scow on the Schuylkill River in Philadelphia, caught fire when an open-flame kerosene lamp on the deck of the scow ignited highly flammable vapors lying above an extensive accumulation of petroleum products spread over the surface of the river. Several oil refineries and facilities for oil storage, and for loading and unloading petroleum products, are located along the banks of the Schuylkill River. The trial court found that the lamp was not more than three feet above the water.” Kernan v. American Dredging Co., 355 U.S. 426, 427, 78 S.Ct. 394, 395, 2 L.Ed.2d 382 (1958). We also know (and we take judicial notice) that two of the important rivers of this circuit, the Rouge River in Dear-born, Michigan, and the Cuyahoga River in Cleveland, Ohio, reached a point of pollution by flammable materials in the last ten years that they repeatedly caught fire. Such pollution is an obvious hazard to navigation which Congress has every right to seek to abate under its interstate commerce powers. It would, of course, make a mockery of those powers if its authority to control pollution was limited to the bed of the navigable stream itself. The tributaries which join to form the river could then be used as open sewers as far as federal regulation was concerned. The navigable part of the river could become a mere conduit for upstream waste. Such a situation would have vast impact on interstate commerce. States with cities and industries situated upstream on the nonnavigable tributaries of our great rivers could freely use them for dumping raw sewage and noxious industrial wastes upon their downstream neighboring states. There would be great pressure upon the upstream states to allow such usage. Reduced industrial costs and lower taxes thus resulting would tend to place industries, cities and states located on navigable rivers at a considerable competitive disadvantage in interstate commerce. In such a situation industrial frontage on a creek which flowed ultimately into a navigable stream would become valuable as an access point to an effectively unrestricted sewer. The courts have taken no such narrowly restricted view of either the commerce power or the navigational servitude. In Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941), the state of Oklahoma sought to restrain the building of the Denison Reservoir on the Red River. At the point in question in Oklahoma the Red River was not and never had been navigable. The Denison project had been authorized by Congress “to control the watershed of one of the principal tributaries of the Mississippi in alleviation of floods in the lower Red River and Mississippi Valleys.” Oklahoma ex rel. Phillips v. Atkinson Co., swpra at 520, 61 S.Ct. at 1057. The Supreme Court held that “[I]t is clear that Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.” Id. at 523, 61 S.Ct. at 1058. Nonnavigability of the stream controlled was held irrelevant because the Congressional act had an effect on the total commerce function of the navigable river. The opinion also said: “We would, however, be less than frank if we failed to recognize this project as part of a comprehensive flood-control program for the Mississippi itself. But there is no constitutional reason why Congress or the courts should be blind to the engineering prospects of protecting the nation’s arteries of commerce through control of the watersheds. There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries. Nor is there a constitutional necessity for viewing each reservoir project in isolation from a comprehensive plan covering the entire basin of a particular river. We need no survey to know that the Mississippi is a navigable river. We need no survey to know that the tributaries are generous contributors to the floods of the Mississippi. And it is common knowledge that Mississippi floods have paralyzed commerce in the affected areas and have impaired navigation itself. We have recently recognized that ‘Flood protection, watershed development, recovery of the cost of improvements through utilization of power are . . . parts of commerce control.’ United States v. Appalachian Power Co., supra, [311 U.S. 377], page 426 [61 S.Ct. 291, page 308, 85 L.Ed. 243], And we now add that the power of flood control extends to the tributaries of navigable streams. For, just as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or' in part in flood control on its tributaries. As repeatedly recognized by this Court from M’Culloch v. Maryland, 4 Wheat. 316 [4 L.Ed. 579] to United States v. Darby, 312 U.S. 100 [61 S.Ct. 451, 85 L.Ed. 609], the exercise of the granted power of Congress to reguiate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce.” Oklahoma ex rel. Phillips v. Atkinson Co., supra at 525-526, 61 S.Ct. at 1059-1060. (Emphasis added.) (Footnote omitted.) The parallel seems clear to us. Pollution control of navigable streams can only be exercised by controlling pollution of their tributaries. If “the power of flood control extends to the tributaries of navigable streams,” (see emphasized language above) then we believe that the power of pollution control extends to the tributaries of navigable streams likewise. If the Atkinson case left any doubt, it was surely resolved in United States v. Grand River Dam Authority, 363 U.S. 229, 80 S.Ct. 1134, 4 L.Ed.2d 1186 (1960). In this case Oklahoma as a state desired to develop power projects on the Arkansas River, and Congress by the 1941 Flood Control Act, adopted one of the sites at Fort Gibson which Oklahoma had franchised to a state agency. The state agency sued for compensation and the Supreme Court said: “The Government contends that the navigational servitude of the United States extends also to nonnavigable waters, pre-empting state-created property rights in such waters, at least when asserted against the Government. In the view we take in this ease, however, it is not necessary that we reach that contention. Congress by the 1941 Act, already mentioned, adopted as one work of improvement ‘for the benefit of navigation and the control of destructive floodwaters’ the reservoirs in the Grand River. That action to protect the ‘navigable capacity’ of the Arkansas River (United States v. Rio Grande Irrigation Co., 174 U.S. 690, 708 [19 S.Ct. 770, 777, 43 L.Ed. 1136]) was within the constitutional power of Congress. We held in Oklahoma v. Atkinson Co., 313 U.S. 508 [61 S.Ct. 1050, 85 L.Ed. 1487], that the United States over the objection of - Oklahoma could build the Denison Dam on the Red River, also nonnavigable, but a tributary of the Mississippi. We there stated, ‘There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries.’ Id., [313 U.S.] at 525 [61 S.Ct. at 1059], And see United States v. Appalachian Power Co., 311 U.S. 377, 426 [61 S.Ct. 291, 308, 85 L.Ed. 243]; Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 373 [69 S.Ct. 114, 121, 93 L.Ed. 64], We also said in Oklahoma v. Atkinson Co., supra, that ‘. . . the power of flood control extends to the tributaries of navigable streams.’ Id., [313 U.S.] at page 525 [61 S.Ct. [1050], at pages 1059, 1060], We added, ‘It is for Congress alone to decide whether a particular project, by itself or as part of a more comprehensive scheme, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. That determination is legislative in character.’ Id., [313 U.S.] at 527 [61 S.Ct. [1050], at 1060]. We held that the fact that the project had a multiple purpose was irrelevant to the constitutional issue, Id., [313 U.S.] at 528-534 [61 S.Ct. at 1060-1063] as was the fact that power was expected to pay the way. Id., [313 U.S.] at 533 [61 S.Ct. at 1063] ‘[T]he fact that ends other than flood control will also be served, or that flood control may be relatively of lesser importance, does not invalidate, the exercise of the authority conferred on Congress.’ Id., [313 U.S.] at 533-534 [61 S.Ct. at 1063].” United States v. Grand River Dam Authority, supra, at 232-233, 80 S.Ct. at 1136-1137. (Footnote omitted.) In another and somewhat earlier case the Supreme Court had recognized that the government’s right to aid navigation sometimes impinges on the advantages otherwise owned by riparian owners. In United States v. Willow River Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945), the Court said: “Operations of the Government in aid of navigation ofttimes inflict serious damage, or inconvenience or interfere with advantages formerly enjoyed by riparian owners, but damage alone gives courts no power to require compensation where there is not an actual taking of property.” Id. at 510, 65 S.Ct. at 767. Thus, the doctrine of navigational servitude entitles the federal government to control the quality of effluent from riparian owners whose land drains into nonnavigable streams in pursuance of the federal interest in preserving the navigability and the quality of the navigable waters of the commerce-carrying rivers into which these tributaries flow. These cases have never been overruled or modified and appear to us clearly to uphold the authority which Congress sought to exercise in the Federal Water Pollution Control Act Amendments of 1972. The government in this case, however, pins its argument primarily upon the wider concept that water pollution is subject to Congressional restraint because it affects commerce in innumerable ways and because it affects the health and welfare of the nation, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The statute lends some weight to the government’s argument by its many references (some of which we have quoted above) to aspects of pollution control which have no possible direct bearing on navigability. Congressional concern in the 1972 Act with the impact of pollution upon fishing for commercial purposes or upon bathing and fishing and boating for recreational purposes of interstate travelers, and for the needs of towns, cities, industries and farms for unpolluted water for both health and commerce supports this broader concept. Congress, as indicated above, intended to exercise its full constitutional powers, and we are required to give effect to that intention. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423, 4 L.Ed. 579 (1819); United States v. Appalachian Power Co., 311 U.S. 377, 423-429, 61 S.Ct. 291, 85 L.Ed. 243 (1940); United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 85 L.Ed. 609 (1941). The generous construction of water pollution laws required by the Supreme Court is amply demonstrated in many cases. See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 669-670, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); United States v. Standard Oil Co., 384 U.S. 224, 226, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). In United States v. Standard Oil, the Supreme Court said: “Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant.” United States v. Standard Oil Co., supra, 384 U.S. at 226, 86 S.Ct. at 1428. We hold that the provisions of the Water Pollution Control Act Amendments of 1972 are constitutional and were constitutionally applied by the District Court. Ill The Burden of Proof The only remaining question of importance in this case concerns whether or not the government must bear the burden of establishing not merely that oil was discharged into a tributary of a navigable stream, but also that, in fact, the oil reached and polluted the navigable river. To state the question is to recognize the impossibility of such proof in many if not all cases. Drops (or barrels) of oil carry no fingerprints. At the juncture of the Pond River and the Green River water analysis which might show oil pollution could not possibly prove which polluter discharged it, in what proportion, or on what occasion. Nor where many offenders are involved in creating a great social problem is such proof constitutionally required. Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122 (1942). The following portion of the Report of the Senate Committee on Public Works fully demonstrates Congressional understanding of this problem and sheds light on Congressional intent: “The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. Through a narrow interpretation of the definition of interstate waters the implementation [of the] 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries.” S.Rep.No.414, 92d Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 3742-3743 (1972) (Emphasis added.) We believe that the analysis of the Act set forth above amply demonstrates that Congress was concerned with pollution of the tributaries of navigable streams as well as with the pollution of the navigable streams. We also believe that it is incontestable that substantial pollution of one not only may but very probably will affect the other. See United States v. American Cyanamid Co., 480 F.2d 1132 (2d Cir. 1973). The construction of the statute urged by appellant in this regard would be violative of the generous construction of water pollution legislation mandated by the Supreme Court. See United States v. Pennsylvania Industrial Chemical Corp., supra; United States v. Standard Oil Co., supra. In this regard the strict construction rule applicable to criminal statutes has clearly been modified by the Supreme Court. United States v. Standard Oil Co., supra, 384 U.S. at 225, 86 S.Ct. 1427. We agree with Judge Gordon that the facts in this ease disclose that the notice of the discharge of oil required to be given “immediately” by 33 U.S.C. § 1321 (b)(5) was not so given. For the reasons outlined above and further set out in the opinion of the District Judge, we affirm the judgment of the District Court. . 33 U.S.C. §§ 1251-1376 (1972). . Both parties call our attention to Hardy Salt Co. v. Southern Pacific Transportation Co., 501 F.2d 1150 (10th Cir. 1974). Appellant claims it supports the continuing vitality of the definition of “navigable waters of the United States” contained in The Daniel Ball, supra. Hardy Salt, however, concerns the Rivers and Harbors Act of 1899 but has no application to the Federal Water Pollution Control Act Amendments of 1972 and reaches no question of constitutional power. . This question, of course, relates only to the navigational servitude aspect of the preceding constitutional holdings. . The government belatedly complains of the inadequacy of the $500 fine and argues that probation would be desirable as an additional deterrent. However appropriate this may be in future cases, it is clear to us that the United States Attorney recommended the penalty which the District Judge administered and that the United States made no effort to appeal the sentence.

United States v. Dixie Carriers, Inc.

THORNBERRY, Circuit Judge: This interlocutory appeal from partial summary judgment for the defendants in a suit brought by the government to recover oil spill cleanup costs presents a single issue: whether the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1321(f)(1), prevents the government from recovering its oil spill cleanup costs under additional legal theories. Because we conclude that Congress intended for the Federal Water Pollution Control Act (FWPCA) to provide the exclusive legal remedy for the government to recover its oil spill cleanup costs, we affirm the decision of the district court. On June 22, 1974, a tugboat operated by appellee Dixie Carriers, Inc., lost control of its tanker barges in tow. One barge struck the Huey P. Long Bridge near New Orleans and discharged about 1,265,000 gallons of oil into the Mississippi River. After notifying the appropriate authorities, Dixie arranged for cleanup operations to commence. Dixie discontinued the cleanup operation when its cleanup expenses totalled $121,000, Dixie’s maximum liability, calculated at $100 per ton of the barge, under section 1321(f)(1) as then in effect. The government contracted for cleaning up the remaining oil at a cost of over $954,400. In July 1977 the government sued Dixie to recover the amount of its cleanup costs under section 1321(f)(1), and also under the Refuse Act, 33 U.S.C. § 407, and under common law theories of public nuisance and maritime tort for negligence. Dixie moved for partial summary judgment on the ground that the FWPCA provides the exclusive remedy for the government’s claim, and forecloses actions based on other legal theories. The judge granted partial summary judgment to Dixie, and this interlocutory appeal under 28 U.S.C. § 1292(b) followed because the order below involves a controlling question of law as to which there is substantial ground for difference of opinion, and this appeal will materially advance the ultimate termination of this litigation. The district court did not decide, and we do not consider, whether Dixie’s voluntary payments toward cleaning up the oil spill should be credited against its liability to the government for at least a portion of the government’s cleanup costs. See 462 F.Supp. 1126, 1127 n. 1. Neither did the district court decide whether Dixie acted willfully to cause the oil discharge in this case. See 462 F.Supp. at 1128. On appeal the government contends that it should be allowed to recover under additional legal theories because the FWPCA does not expressly repeal the Refuse Act nor supersede common law remedies. The government asserts that additional recoveries under the Refuse Act or common law would be consistent with the general policy of the FWPCA to prevent discharges of oil upon the navigable waters of the United States. 33 U.S.C. § 1321(b)(1). Dixie contends that the language, legislative history, and general statutory scheme of the FWPCA demonstrate Congress’ intent to provide an exclusive and comprehensive remedy for the government to clean up oil spills and to recover cleanup expenses. Because the FWPCA allows the government to recover only a limited amount under strict liability, and to recover an unlimited amount only upon proof of a willful discharge, Dixie asserts that the FWPCA embodies a balanced compromise which will be destroyed if the courts now allow the government to recover an unlimited amount under the Refuse Act or common law. Every court that has considered this issue has held that the FWPCA provides the government’s exclusive remedy for recovering oil spill cleanup costs. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 614-18 (4th Cir. 1979); United States v. Tug J. P. McAllister, Civ. No. 76—462 (D.P.R. Apr. 3, 1980); United States v. Hollywood Marine, Inc., No. 77-1870 (S.D.Tex. May 3, 1979); United States v. Hollywood Marine, Inc., 487 F.Supp. 1211 (S.D.Tex.1979), reversed, 625 F.2d 524 (5th Cir. 1980); United States v. M/V Big Sam, 480 F.Supp. 290 (E.D.La.1979), vacating 454 F.Supp. 1144 (E.D.La.1978); In re Oswego Barge Corp., 1979 A.M.C. 333 (N.D.N.Y.1978); Valley Towing Service, Inc. v. S. S. American Wheat, Civ. No. 75-363 (E.D.La. Dec. 19, 1978). See also Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979) (dicta). But see Comment, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spills Cleanup Costs, 93 Harv.L.Rev. 1761 (1980) (suggesting that FWPCA should exclude Refuse Act recovery, but not recovery under maritime tort or public nuisance). The FWPCA is in part a modification and reenactment of the Water Quality Improvement Act of 1970 (WQIA), Pub.L. No. 91-224, 84 Stat. 91, amended and recodified at 33 U.S.C. §§ 1251-1376. When Congress passed the WQIA in 1970, the government had no effective remedy for recovering cleanup costs from oil spills on navigable waters. The government had possessed no remedy at all until 1966, when Congress amended the Oil Pollution Act of 1924, ch. 316, 43 Stat. 604, to provide that the government could obtain a recovery, but only for grossly negligent or willful discharges. Act of Nov. 3, 1966, Pub.L.No. 89-753, § 211(a), 80 Stat. 1246, 1253. In section 108 of the WQIA Congress expressly repealed the Oil Pollution Act. The government argues that Congress’ failure to use similar express language to repeal any right of the government to recover under the Refuse Act or common law indicates Congress’ intent to preserve these additional remedies for the government. We do not attach such significance to Congress’ failure to repeal these remedies because at the time the WQIA and FWPCA were enacted-as at the time of our decision today-the government had never recovered oil spill cleanup costs under either the Refuse Act or common law. Congress’ failure to repeal the Refuse Act provides especially weak evidence for the government because, unlike the Oil Pollution Act, the Refuse Act does not even provide the government with a cause of action to recover its cleanup costs. The Refuse Act imposes only fines up to $2500 and possible imprisonment for persons who discharge refuse upon navigable waters without permission of the Secretary of the Army. 33 U.S.C. § 411. No court has found an implied cause of action under the Refuse Act for the recovery of oil spill cleanup costs by the government. Because the Oil Pollution Act did not provide an effective means for the government to recover its oil spill cleanup costs, Congress enacted section 1321(f)(1), which, as in effect at the time of the spill in this case, provided in pertinent part that the owner or operator of any vessel from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section shall, notwithstanding any other provision of law, be liable to the United States Government for the actual costs incurred . . . for the removal of such oil or substance by the United States Government in an amount not to exceed $100 per gross ton of such vessel or $14,000,000 whichever is lesser, except that where the United States can show willful negligence or willful misconduct . . ., such owner or operator shall be liable to the United States Government for the full amount of such costs. We note initially that the phrase “notwithstanding any other provision of law” can be interpreted to mean that the remedial scheme provided in section 1321(f)(1) is exclusive. See Tug Ocean Prince, Inc. v. United States, 584 F.2d at 1162; In re Oswego Barge Corp., 1979 A.M.C. at 337-39 (by implication). The government would interpret this phrase to mean only that the limitation of liability provision in the statute should not be further limited by other laws, such as the Limitation of Liability Act of 1851, 46 U.S.C. §§ 181 — 188, which would limit the vessel owner’s liability for most tort claims to the value of the vessel after the accident and its freight then pending. The government’s interpretation of the phrase receives some support from a committee report which remarks that section 1321(f)(1)’s “limitation on liability is intended to be the only limitation on liability for discharge of oil or matter under this section, notwithstanding any other provisions of law.” H.R. Rep. No. 91-127, 91st Cong., 1st Sess. 11 (1969), reprinted in [1970] U.S. Code Cong. & Admin. News, pp. 2691, 2702. Because the phrase “notwithstanding any other provision of law” supports at least two conflicting interpretations, this language alone cannot resolve the controversy about whether the statutory remedy is exclusive. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d at 615. Although the express language of the statute provides little guidance to indicate Congress’ intent, the structure of the remedies in section 1321(f)(1) suggests that Congress intended for those statutory remedies to be exclusive. The statute allows the government to recover only a limited amount of its cleanup costs under a strict liability theory. The government can then obtain additional, unlimited recovery of its cleanup costs only if it can prove willful negligence or willful misconduct with regard to the discharge. Congress’ intent to achieve a balanced and comprehensive remedial scheme in section 1321(f)(1) by matching limited recovery with strict liability and unlimited recovery with proof of willful conduct is apparent from the legislative history. The original Senate bill allowed the government an unlimited recovery upon proof of simple negligence. S. Rep. No. 91-351, 91st Cong., 1st Sess. (1969). The House of Representatives bill limited the government’s recovery even upon proof of a willful discharge. H.R. Rep. No. 91-127, 91st Cong., 1st Sess. (1969), reprinted in [1970] U.S. Code Cong. & Admin. News, p. 2691. The final statute allowing only limited recovery under a strict liability theory and allowing an unlimited recovery only upon proof of willful conduct represents a compromise between the two proposed statutes. See H.R. Conf. Rep. No. 91-940, 91st Cong., 1st Sess. 30-39 (1969), reprinted in [1970] U.S. Code Cong. & Admin. News, pp. 2712-28. In enacting a compromise bill that limits the government’s recovery for cleanup costs in all cases except those involving willful discharges, Congress apparently intended to deter oil spills and recover cleanup costs in a manner that would protect most vessel owners from potentially crushing liability. For example, Congressman Cramer explained the compromise bill as follows: As the Members of this body will recall, the position of this body was that limitations of liability and imposition of liability should not be such as to preclude the possibility of recovery of cleanup costs from the discharger. We felt that the gauge of this liability should be whether or not insurance could be obtained to cover these events. Consequently, the House bill provided for limitations of liability for vessels based upon an evaluation of the world insurance market for this new type of risk. The Senate position was based upon figures for which we could find no substantiation in their hearings and which we were assured were completely uninsurable. ****** The conference was able to work out a compromise accepting the best features of both the House and the Senate positions. We arrived at a limitation of liability based on what we call strict liability. That is, regardless of fault and with certain very limited exceptions the dis-charger of oil will be liable. His limitation of liability would be $100 per gross ton or $14 million, whichever is higher [sic]. This figure incidentally is twice the amount paid in the Torrey Canyon case. In the case of cleanup necessitated as a result of a willful spill or of a negligent spill, the benefits of limitations of liability would be removed and where the privity and knowledge of the owner of the vessel was involved he would be required to pay the full costs for cleanup. 116 Cong. Rec. 9327 (1970). See also 115 Cong. Rec. 9020 (1969) (remarks of Rep. Cramer) (supporting liability ceiling in original House bill); 115 Cong. Rec. 9025 (1969) (remarks of Rep. Wright) (same). In the Senate, Senator Muskie observed that the limitation on liability was “an amount suggested by insurers as the insurable limit for this particular type of liability.” 116 Cong. Rec. 8982-83 (1970). Senator Cooper referred to the limitation on liability section as “an important provision, which I consider draws a proper balance between the public interest and the ability of private enterprise to respond. I think it should be pointed out that the provision was adopted only after the most careful consideration and thorough study.” 116 Cong. Rec. 9003-04 (1970). See also 115 Cong. Rec. 28,958 (1969) (remarks of Sen. Spong) (“Our objective was to protect the taxpayers from potential cleanup costs, without imposing liability in excess of reasonable risks.”). The other provisions of the FWPCA are consistent with Congress’ apparent intention to create a balanced and comprehensive remedial scheme that precludes recovery by the government under additional legal theories. Section 1321(p) assures that each vessel transporting oil can satisfy its limited liability by requiring each such vessel to show proof of insurance, bonding, or other financial ability in an amount equal to its limited liability level. In 1977 Congress increased the limited liability level from $100 per gross ton to $125 per gross ton to reflect the increasing costs of oil spill cleanups in the seven years after passage of the original Act. Clean Water Act of 1977, Pub. L. No. 95-217, § 58(d)(2), 91 Stat. 1566, 1595. Section 1371(a)(1) expressly prevents government actions to recover under legal theories inconsistent with the FWPCA: “This chapter shall not be construed as . limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter . . .” Additional recovery by the government under the Refuse Act or common law would be inconsistent with the scheme in section 1321(f)(1) to match limited recovery with strict liability, and to allow additional recovery only upon proof of willful conduct. Even though the Refuse Act is not repealed by the FWPCA, recovery of cleanup costs under this Act would be sharply inconsistent with section 1321(f)(1). The statutory section that retains the Refuse Act does not mention the recovery of cleanup costs, and is not at all inconsistent with section 1321(f)(1); section 1371(a)(2)(B) provides that the FWPCA “shall not be construed as . affecting or impairing the authority of the Secretary of the Army . under the Act of March 3, 1899 [the Rivers & Harbors Appropriation Act, which includes the Refuse Act].” The Refuse Act gives the Secretary of the Army express control over various activities within navigable waters, but a claim for recovery of oil spill cleanup costs would be brought only as an implied cause of action by the Justice Department, not by the Secretary of the Army. Moreover, the Refuse Act is violated merely by the discharge of oil into navigable water without the permission of the Secretary of the Army. An implied cause of action for additional recovery under the Refuse Act would provide the government with unlimited recovery under an essentially strict liability theory. This result would be directly contrary to section 1321(f)(1), which allows only limited recovery for strict liability. Because of this conflict, we conclude that the FWPCA prevents the government from obtaining an additional recovery for oil spill cleanup costs under the Refuse Act. See In re Oswego Barge Corp., 1979 A.M.C. at 337-39; Comment, 93 Harv.L.Rev. at 1778. Allowing the government an additional recovery upon a showing of mere negligence or public nuisance under common law maritime tort and nuisance theories would also be inconsistent with the FWPCA. The careful matching of limited recovery with strict liability and unlimited recovery with proof of willful conduct in section 1321(f)(1) would be destroyed if the government could obtain an unlimited recovery upon a showing of mere negligence or nuisance. FWPCA provisions such as section 1321(p) that assures the government of the discharging vessel’s financial responsibility and that makes the government the sole beneficiary of the assets recovered under the FWPCA do not indicate that Congress intended to allow additional recovery under common law theories merely because the common law does not provide the government with such special benefits. Contrast Comment, Harv.L.Rev. at 1777. The government’s contention that Congress intended for the limited liability provision to provide only a minimum insurance level, above which the government could obtain, but would not be guaranteed, unlimited recovery is contrary to the language of section 1321(f)(1). This section does not employ “minimum insurance” terms, and it restricts recovery beyond the limited liability level only to cases involving willful conduct. Moreover, a Senate bill providing for such a “minimum insurance” plan was rejected by the conference committee. See S. Rep. No. 91-351, 91st Cong., 1st Sess. 17-18 (1969). The government contends that the following remarks by Representative Dingell indicate that the FWPCA allows recovery under additional theories: The Coast Guard should (a) vigorously enforce the Refuse Act of 1899 and the civil penalty provisions of the Water Quality Improvements Act of 1970 against all persons who unlawfully discharge oil into the Nation’s waterways, and (b) utilize against unlawful oil dis-chargers other remedies such as suits under the Federal common law of public nuisance, or for reimbursement of clean up costs, or for damages. 118 Cong. Rec. 33757 (1972). The government’s interpretation of these remarks is without merit. Representative Dingell was discussing only the civil penalty provisions in section 1321(b)(6), not the cleanup recovery provisions in section 1321(f)(1). Moreover, these particular remarks were quoted in full by Representative Dingell from the report of the House Committee on Government Operations, H.R. Rep. No. 92-1401, 92d Cong., 2d Sess. 33 (1972). Like Representative Dingell, the committee was concerned only with the enforcement of the penalty provisions of the Refuse Act and WQIA. The context of the passage shows that the committee’s statement about the common law of public nuisance refers only to injunctive relief, as allowed in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and in United States v. Ira S. Bushey & Sons, Inc., 363 F.Supp. 110 (D.Vt.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974), which cases the committee discusses on the page previous to the quoted passage. The statement about reimbursement of cleanup costs refers only to section 1321(f)(1), whose maximum liability requirements the committee recognizes in the paragraph previous to the quoted passage. The statement about recovery for damages, as opposed to general cleanup costs, is consistent with section 1321(o)(l), which expressly allows the government to recover for property damages actually suffered from an oil spill. Neither the committee report nor Representative Dingell’s quotation from the report can be meaningfully interpreted as a statement that the FWPCA allows the government to recover cleanup costs under additional legal theories. In addition to the scheme for government recovery of cleanup costs in section 1321(f)(1), Congress expressly allows some other specific remedies in the event of oil spills. Section 1321(o)(1) states that the FWPCA should not affect or modify the remedies of any private or public party, including the government, to recover for actual damage to property from an oil spill. Section 1321(o)(2) states that the FWPCA does not preempt a state from imposing separate liability for oil spills on water within its borders. See Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) (FWPCA) does not preempt state strict liability for oil spills). Section 1321(h)(2) states that the FWPCA does not affect the rights which the United States may have against a third party whose actions caused an oil spill. See United States v. LeBeouf Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980) (third party defense under section 1321(f)(1) for oil spill from barge does not extend to tug towing barge at time of spill). No such express language allows the government to recover its cleanup costs under the Refuse Act or common law. In the absence of a clearer indication from Congress that the government may obtain recovery under additional theories, we conclude that the balanced and comprehensive scheme in section 1321(f)(1) provides the exclusive remedy for the government to recover its cleanup costs from oil spills. We recognize that additional recoveries may be necessary to deter and to clean up harmful oil spills, but we believe that this expanded remedy must be provided by Congress, not by this court. For these reasons, the judgment in the court below is affirmed. AFFIRMED.

Consolidation Coal Co. v. Costle

BUTZNER, Circuit Judge: In 27 consolidated cases, 17 coal producers, their trade association, 5 citizens’ environmental associations, and the Commonwealth of Pennsylvania seek review, pursuant to 33 U.S.C. § 1369(b)(1)(E), of water pollution control regulations for existing facilities in the coal industry promulgated by the administrator of the Environmental Protection Agency. We uphold the regulations with the exception of a clause establishing criteria for variances. I The Federal Water Pollution Control Act of 1972 is a legislative mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The Act sets a national goal to eliminate the discharge of pollutants into the navigable waters by 1985. As the first step toward the 1985 goal, Congress provided in § 301(b)(1)(A) of the Act that there shall be achieved . . . not later than July 1, 1977, effluent limitations for point sources [of water pollution], other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator [of the Environmental Protection Agency] pursuant to § 304(b) .... This provision for effluent limitations marked a major change from prior law. Before the 1972 Act, water pollution control had been based upon water quality standards specifying the acceptable levels of pollution in the navigable waters. The program proved ineffective in part because the standards focused on the tolerable effects rather than the preventable causes of water pollution. Effluent limitations eliminate this problem because they directly restrict the concentrations of pollutants that may be discharged by any plant in a given industrial subcategory. Section 304(b)(1) requires the Administrator to publish regulations which must identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources . and specify factors to be taken into account in determining the control measures and practices to be applicable to point sources . . . within such categories or classes. The administrator promulgated final water pollution control regulations for existing plants in the coal industry on April 26,1977. The regulations divide the industry into two categories — (1) coal mines and (2) coal preparation plants and associated areas. These categories are each subdivided according to acidic and alkaline discharges. For each of the resulting subcategories, the regulations establish maximum concentrations of iron and total suspended solids. They also limit the permissible range of acidity and alkalinity of discharge water, and they restrict manganese concentrations in acidic drainage. None of the petitions before us challenges these maxima. The petitions question the validity of seven aspects of the regulations vyhich we will discuss in parts II-VIII of this opinion. Our review is governed by § 10(e)(2) of the Administrative Procedure Act. We must set aside any portion of the 1977 effluent limitations that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” is in excess of statutory authority; or is “without observance of procedure required by law.” The ultimate standard of review is narrow. This court is not empowered to substitute its judgment for that of the agency. The Federal Water Pollution Control Act is to be given the broadest possible reading consistent with the commerce clause, and ambiguities as to the administrator’s powers under the Act are to be resolved in his favor. Congress has required the agency to act quickly and decisively despite a recognized absence of exact data on pollution control technology, and we must hesitate to draw substantive conclusions differing from those of the agency in this area of imprecise knowledge. An overly expansive exercise of the judicial review power can impede accomplishment of the Act’s goal of eliminating water pollution *and thwart its requirement of national uniformity in effluent reduction technology- II. Variance — Statutory Factors The industrial petitioners challenge the “fundamentally different factors” variance clause contained in the regulations complaining that this provision fails to require the permit issuer to consider the factors set forth in §§ 304(b)(1)(B) and 301(c) of the Act. An identical variance clause was before the court in National Crushed Stone Association v. EPA, which controls our disposition of this issue. National Crushed Stone holds that the clause is unduly restrictive, relying on Appalachian Power Co. v. EPA. Accordingly, we set aside the variance clauses contained in 40 C.F.R. §§ 434.22, 434.32, and 434.42 and remand them for revision to conform with National Crushed Stone. III. Variance — Environmental Benefits The industrial petitioners also insist that the regulations dealing with variances *must be disapproved because they fail to require the agency to consider the environmental benefits of applying the effluent limitations to a particular source of pollution. The only specific error they attribute to the regulations is the absence of a provision requiring the agency to take into account the quality of the receiving water when it decides whether to grant a variance. At the outset, we reject the agency’s argument that consideration of this aspect of the variance regulations would be premature. In a recent adjudicatory proceeding, the administrator unequivocally ruled that the Act and, consequently, the regulations, do not authorize him to grant a variance to an industrial discharger by providing “relief from technology-based effluent limitations guidelines due solely to the characteristics of particular receiving waters . . . .” Since the administrator's interpretation of the regulations precludes any speculation about its meaning, review is not premature. We therefore turn to the merits of the petition. The pertinent regulations authorize the administrator to allow deviations from the national effluent limitations if factors peculiar to a specific source of pollution are fundamentally different from the factors considered in the establishment of the guidelines. The precise issue, therefore, is whether the factors peculiar to a source of pollution must include comparison of the expected improvements in the receiving water with the cost of achieving them. We dealt with this issue in Appalachian Power, where, in response to Consolidated Edison’s request to be relieved of the effluent guidelines, we said: [S]o far as its petition may be read as a request for leniency because of the already polluted condition of the harbor, it must be rejected. The 1972 amendments to the statute changed the system from that of control of the quality of the body of water to effluent limitations as we have before noted. The Court of Appeals for the District of Columbia Circuit also examined this issue in Weyerhaeuser Co. v. Costle, and affirmed the administrator’s refusal to consider receiving water quality in setting limitations. These decisions recognize that after many years of experimenting with pollution control laws, Congress determined that emphasis on receiving water quality instead of effluent reduction technology was unacceptable for control of private sources of pollution. With exceptions not germane to this opinion, Congress has now mandated that even if the application of the best practicable control technology to a specific source of pollution results in no significant improvement in the quality of the receiving water, that technology must still be applied. Commenting on the change in the scheme for elimination of pollution, the Supreme Court said: [A] discharger’s performance is now measured against strict technology-based effluent limitations — specified levels of treatment — to which it must conform, rather than against limitation^ derived from water quality standards to which it and other polluters must collectively conform. Any possible doubt about congressional intent to preclude consideration of receiving water quality in industrial variance rulings was put to rest in 1977. While considering legislation necessary for mid-course corrections in the federal water pollution control program, Congress heard evidence about the asserted inequity of technology-based standards. In the resulting amendments, Congress permitted consideration of receiving water quality as a basis for less stringent discharge standards in one situation: discharges from publicly owned treatment works into marine waters. The intent to restrict this exception to municipalities is clear from the amendments and their legislative history. We therefore conclude that the variance regulations as interpreted by the administrator properly exclude consideration of the quality of the receiving water. We recognize, however, that elements of the environment apart from receiving water may be affected by enforcement of the effluent limitations, and in an appropriate case, these elements might warrant a variance. IV. Deadline The industrial petitioners next argue that because the standards for the coal industry were promulgated barely two months before the statutory deadline for application of the best practicable control technology, they are in part unachievable, and therefore invalid, as to certain facilities. The petitioners suggest that the July 1, 1977, deadline for compliance with effluent limitations may not be enforced because the administrator did not promulgate final regulations until long after the Act required him to do so. Congress addressed this problem when it passed the 1977 amendments to the Act. Section 309(a)(5)(B), added by those amendments, authorizes the administrator to extend the deadline up to April 1, 1979, for companies that, despite good faith efforts to comply with the best practicable control technology standards, were unable to do so by July 1,1977. This new provision speaks in general terms of persons who have violated the Act or who otherwise have not complied with its requirements. It does not specifically mention compliance problems caused by the administrator’s delay in promulgating effluent limitations guidelines. Nevertheless, the legislative history establishes that the amendment is intended to afford relief in such situations to companies that satisfy its requirements. Industry also contends that an extension pursuant to § 309(a)(5)(B) will not prevent suits by private citizens pursuant to § 505 of the Act against companies that are unable to meet the statutory deadline. The courts, however, retain equitable discretion to determine whether and to what extent sanctions should be allowed against coal operators who qualify for relief under the amendment. Congress has adequately dealt with any dilemma that may confront a coal operator due to the agency’s delay. Accordingly, the regulations are not invalidated by the short lead time. V. Western Coal Mines The industrial petitioners next challenge the administrator’s decision to exclude mines in six western states from the coverage of the maximum total suspended solids level applicable to mine drainage. Concerned that the administrator will promulgate more stringent standards for the western mines, the petitioners emphasize two assignments of error. First, they assert that the postponement of suspended solids limitations for the western mines violates the Act’s requirement of uniformity in effluent limitations. Second, they point out that the limits for suspended solids, as proposed in 1976, applied to all mines in the country. They assert that they were not given adequate notice or opportunity to comment on the Agency’s exclusion of these six states in its final regulations, in violation of the Administrative Procedure Act and sections 101(e) and 304 of the Federal Water Pollution Control Act. The agency’s interim effluent limitations guidelines, published October 17, 1975, and May 13, 1976, dealt with total suspended solids on a national, rather than regional, basis. The interim guidelines prescribed a maximum limitation for any one day of 70 milligrams of total suspended solids per liter of water (mg/1) and a maximum average daily value for 30 consecutive days of 35 mg/1. The final regulations, promulgated April 26, 1977, retain these values, but provide that the national suspended solids limitations do not apply in Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. In these states, the agency ruled, total suspended solids limitations will be determined on a case-by-case basis. In the preamble to its final regulations, published April 26,1977, the agency explained its reasons for excluding these western states as follows: Western Coal Mines. The Effluent Guidelines Division of EPA has received a substantial body of information from EPA Region VIII (located in Denver, Colorado) with respect to the limitations on discharges from coal mines in the Western United States. Representatives of that Region believe more stringent numbers are appropriate in light of actual experiences with those mines. These data appear to support effluent limitations guidelines for a number of parameters significantly more stringent than the limitations announced today. The reasons for the apparent ability of Western coal mines to discharge pollutants in less concentration than is the case of Eastern coal mines are many, and certainly include the relatively more even topography of Western coal mines, the emphasis on recycle of relatively scarce water supplies, and the relatively lower concentration of pollutants in the geologic formations being exploited. The Agency is undertaking a thorough evaluation of the information being supplied from permit-granting authorities in the Western United States. It is anticipated that consideration will be given to proposal of a separate subcategory with respect to all pollutant parameters for those coal mining operations located in the Western United States which have attributes such that they are able to meet more stringent effluent limitations. The Agency has determined not to promulgate national TSS limitations for mines in some Western States. Until national limitations guidelines are published which address Western mines and TSS, NPDES permit writers shall calculate TSS restrictions utilizing the same discretion and with the same deference to statutory factors as they have in the past. We find no violation of the Act. In the first place, we note that the administrator has not exempted these mines from applying the best practicable technology to reach prescribed effluent limitations. Doing so would have violated the Act. In contrast to outright exemption, the Act authorizes the administrator to create appropriate subcategories and to consider a broad range of factors when establishing the standards for facilities within such subcategories. Thus, the Act does not prohibit the administrator from creating a subcategory based on geographic location if geological, topographical, or other technical factors justify it. The administrator, however, has not utilized the Act to create a formal subcategory for the western mines. The issue therefore is whether the administrator has authority to take an interim step toward creating a subcategory by declining to apply the total suspended solid effluent limitations to a designated region pending further study. While the resolution of the question is not free from doubt, we believe the administrator is empowered to defer establishment of the suspended solids limitation for mines in the western states. The information that the administrator received during the rule-making proceedings indicated that, with the same pollution control equipment, western mines could be operated with more stringent limitations on the discharge of suspended solids than the eastern mines. There is therefore no apparent technological justification for applying the limitations that were appropriate for the rest of the country. At the same time, the agency had not received and studied sufficient data to create a separate subcategory with specific limitations. Consequently, the administrator applied to the western mines all national criteria except the single limitation for which he lacked sufficient data. He then temporarily authorized state and federal officials to set levels of suspended solid effluents on a case-by-case basis. This practice will generally require the western mines to continue to conform to more strict suspended solids limitations than those for eastern mines during the administrator’s study of the data. Referring to an analogous issue concerning the same statute, Judge Leventhal cautioned courts to exercise restraint for reasons that are pertinent here: The courts cannot responsibly mandate flat guideline deadlines when the Administrator demonstrates that additional time is necessary to insure that the guidelines are rooted in an understanding of the relative merits of available control technologies. The delay required to give meaningful consideration to the technical intricacies of promising control mechanisms may well speed achievement of the goal of pollution abatement by obviating the need for time-consuming corrective measures at a later date. A regulatory agency frequently needs to address problems step by step. It should not always be required to answer every question simultaneously. The administrator’s deferral of limitations for suspended solids in the west pending further study was prudent and lawful. The petitioners also point out that the limits on suspended solids, when initially promulgated in the notice of rulemaking, applied to all mines, and they protest that they were not given adequate opportunity to comment on the agency’s exclusion of the western mines in its final regulations. They argue that this omission violated the notice and comment provisions of the Administrative Procedure Act and the requirement of public participation found in the Federal Water Pollution Control Act. A notice of proposed rulemaking “ ‘must be sufficient to fairly apprise interested parties of the issue involved . . ,’ but it need not specify ‘every precise proposal which [the agency] may ultimately adopt as a rule.’ ” Moreover, “[t]he requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions.” Tested by these familiar principles, the administrator’s procedure fully complied with both statutes. The Federal Water Pollution Control Act placed the industrial petitioners on notice that individual discharge permits might contain suspended solids standards that were more stringent than the national limitations. The administrator’s 1975 notice of interim rulemaking advised that effluent limitations would take account of total suspended solids; that the agency had considered geographic locations during its study of effluents; that the quality of raw water discharged from coal mining activities varies significantly; and that regional geology may be a determinaht of the variations. Therefore, it is apparent that the administrator’s deferral of a limitation for suspended solids for the western mines pending further study dealt with problems that were mentioned in the notice. Moreover, the final regulations did not require the western mines to cease the discharge of any pollutant other than those mentioned in the notice. In this respect the administrator’s action differs from procedures that were criticized in cases on which the petitioners rely. For all of these reasons, we conclude that the exclusion of the mines in the western states does not invalidate the suspended solids limitation. VI. Coal Preparation Plants The industrial petitioners’ final complaint concerns the regulations dealing with coal preparation plants and associated areas. They claim that these regulations are im-permissibly vague; that they fail to distinguish between point sources and non-point sources; and that they do not adequately notify mining companies which of their activities are covered. The Act restricts the administrator’s authority to the regulation of discharges from point sources. Non-point sources are subject only to analysis, study, and publication of information. The Act defines a point source as follows: The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, [or] rolling stock . . . from which pollutants are or may be discharged. This definition excludes unchanneled and uncollected surface waters. The regulations under attack establish the concentration of specific pollutants “which may be discharged by a point source” after application of best practicable control technology. They define a point source in conformity with the statute. Their definitions of coal preparation plant and coal preparation plant associated areas are as follows: The term “coal preparation plant” means a facility where coal is crushed, screened, sized, cleaned, dried, or otherwise prepared and loaded for transit to a consuming facility. The term “coal preparation plant associated areas” means the coal preparation plant yards, immediate access roads, slurry ponds, drainage ponds, coal refuse piles, and coal storage piles and facilities. The subsection which the petitioners criticize as vague provides: The provisions of this subpart are applicable to discharges from coal preparation plants and associated areas, including discharges which are pumped, siphoned or drained from coal storage, refuse storage and coal preparation plant ancillary areas related to the cleaning or beneficiation of coal of any rank including but not limited to bituminous, lignite and anthracite. The petitioners argue that this regulation could be interpreted to apply to surface runoff that does not fit within the statutory definition of a point source. We do not share the petitioners’ concern. The subsection about which the petitioners particularly complain, read in context with other pertinent parts of the regulations, applies only to discharges from point sources. Stripped to its bare bones, the petitioners’ complaint is directed at the statutory definition of a point source, which the agency is powerless to change. How the agency will apply its regulations to actual situations presents issues which cannot be satisfactorily resolved in the absence of a full factual background. They can only be determined through the permit-issuing process, including the administrative and judicial review that is available to the petitioners. We find no defect in the regulations for coal preparation plants and associated areas. VII. Post-Mining Discharges The Commonwealth of Pennsylvania and several citizens’ environmental associations petition for review of the administrator’s exclusion of point source discharges from inactive surface mines during reclamation and revegetation and from underground mines after coal production ceases. These petitioners charge that the administrator’s decision to exclude these aspects of the coal industry was arbitrary and capricious, and therefore illegal. They emphasize that the deadline imposed by Congress passed without the promulgation of any regulations for these discharges. Pennsylvania additionally complains that the absence, or even the postponement, of rules pertaining to post-mining discharges will hinder its regulation of inactive mines by encouraging the industry to concentrate its operations in states with lower environmental standards. The administrator, supported on this occasion by the industrial petitioners, claims that he has insufficient data, particularly on costs in relation to benefits, to draft the necessary regulations. Pennsylvania and the environmental groups insist, however, that one of the agency’s development documents, the comments received by the agency during rulemaking, and the laws and regulations of several states disclose sufficient data for the promulgation of pertinent regulations. The record amply supports the petitioners’ claim that post-mining pollution abatement is an integral part of coal production. In two sections of the Act, Congress explicitly recognized the problem of polluted drainage from abandoned mines. Coal mining, whether on the surface or underground, necessitates massive excavations that change the drainage characteristics of the land. Drainage of precipitation and surface water over coal waste — rather than water actually used for coal mining — causes the bulk of the water pollution from coal mines. Ceasing active mining operations does not necessarily reduce water pollution from the site. Pollution may continue indefinitely or even increase in intensity if proper mining methods and control technology are not employed. Pollution from post-mining sites may come from point source discharges. Much of our discussion in Part V about the western coal mines is pertinent to this issue. The administrator cannot exempt post-mining point source discharges from the application of the best practicable control technology. Section 301(e) of the Act requires that pertinent effluent limitations must be applied to all point sources without exception. The administrator may, however, subcategorize the coal industry for the purpose of prescribing effluent limitation guidelines under § 304(b). Here, the administrator has created a subcategory for active mines. He accomplished this by defining a coal mine as “an active mining area.” This phrase was defined in turn as follows: [A] place where work or other activity related to the extraction, removal, or recovery of coal is being conducted, except, with respect to surface mines, any area of land on or in which grading has been completed to return the earth to desired contour and reclamation work has begun. To eliminate any question about the exclusion of post-mining operations the regulations also provide: Drainage which is not from an active mining area shall not be required to meet [these] limitations ... as long as such drainage is not commingled with untreated mine drainage which is subject to the limitations . . , The administrator rightly decided that regulations for active mines might prove to be inappropriate for inactive mines. Indeed, Congress has demonstrated its belief that inactive mines require pollution controls that are quite different from those for active mines. By enacting the Surface Mining Control and Reclamation Act of 1977, Congress recognized that the Federal Water Pollution Control Act is inadequate to eliminate pollution from inactive mines. The surface mining act addresses many of the issues raised by the environmental groups and Pennsylvania. It requires a surface mine operator to restore vegetation, prevent erosion, and curtail water pollution after active mining has ceased. It also requires underground mine operators to take specified measures during and after mining to reduce water pollution. Since we have concluded that the administrator acted properly in treating active mines as a subcategory that excluded inactive mines, the remaining issue becomes quite narrow. It is whether, in view of'the administrator’s failure to meet the deadline for promulgating regulations dealing with post-mining discharges, we should remand the regulations for prompt inclusion of inactive mines. The administrative record established that techniques for reducing pollution from inactive mines are generally known in the industry and that they are successfully utilized by some mining companies. The record, however, does not disclose data concerning the “total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” The agency must consider this information in assessing the best practicable control technology currently available. The passage of the Surface Mining Control and Reclamation Act of 1977 also must be taken into account in determining whether the administrator acted arbitrarily by deferring regulation of post-mining discharges. That statute does not supersede or modify the Federal Water Control Pollution Act; therefore, the administrator remains responsible for promulgating regulations concerning effluent limitations for point source discharges from post-mining areas in accordance with §§ 301 and 304 of the water pollution control act. But the surface mining act requires the Environmental Protection Agency to cooperate “[t]o the greatest extent practicable” with the Secretary of the Interior. Conversely, the Secretary is also required to cooperate with the agency. The purpose of this cooperation is “to minimize duplication of inspections, enforcement and administration.” We therefore conclude that the administrator responsibly decided to gather further data before issuing the regulations that must be consistent with the Secretary’s enforcement and administration of the surface mining act. A third factor bearing on the propriety of the administrator’s exclusion of post-mining discharges is the extent to which this aspect of the industry is regulated without his direct intervention. Even in the absence of national standards, the administrator may issue permits on a case-by-case basis for post-mining discharges. Moreover, since there are no national standards for post-mining point source discharges, effluent limitations certified by a state must be incorporated in a discharge permit. A suit to challenge the administrator’s action on the basis of information not in the record, or for the imposition of a judicial deadline for the promulgation of post-mining regulations, would more appropriately be brought in a district court where matters not disclosed by the administrative record could be offered in evidence. We hold only, on» the record presented in these petitions for review, that the final regulations are not invalidated by the absence of provisions dealing with post-mining discharges. VIII. Catastrophic Rainfall Exemption The citizen environmental petitioners and Pennsylvania challenge a provision, contained in §§ 434.22(c), 434.32(b), and 434.-42(b) of the regulations, which is intended to allow overflow of untreated water from pollution control facilities in extraordinary circumstances. At the time these cases were briefed and argued, the regulations provided as follows: Any untreated overflow, increase in volume of a point source discharge, or discharge from a bypass system from facilities designed, constructed, and maintained to contain or treat the discharges from the facilities and areas covered by this subpart which would result from a 10-year 24-hour precipitation event, shall not be subject to the limitations set forth in paragraph (a) of this section. This means that after a storm or other natural event that forces an overflow from a facility designed, constructed, and maintained to contain a 10-year 24-hour precipitation event, the overflow will be permitted. The record discloses that this provision is similar in many respects to safety standards previously promulgated by the Department of the Interior for water im-poundment facilities at existing coal mines. The petitioners do not dispute the necessity for a catastrophic rainfall exemption, nor do they question a criterion of the heaviest 24-hour precipitation that can be expected to fall in a decade. Their principal complaint is that the administrator arbitrarily and capriciously based the exemption on the design, construction, and maintenance of the pollution control facilities rather than on the magnitude of actual precipitation. They prefer the regulation to specify that the exemption will apply only when the 10-year 24-hour rainfall actually occurs. They point out that in the catastrophic rainfall regulations applicable to other industries, the agency has used the criterion of actual performance, rather than design, construction, and maintenance. After oral argument of these cases, the administrator promulgated final regulations clarifying 40 C.F.R. §§ 434.22(c), 434.32(b), and 434.42(b). These provisions now expressly allow only discharges from properly designed and constructed facilities that “result[] from a 10 year/24 hour or larger precipitation event or from a snow melt of equivalent volume.” We consider the law in effect at the time we render our decision. See Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281-83, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). EPA’s change in the language of the exemption disposes of the criticism of Pennsylvania and the environmental petitioners. The lack of provisions specifying the details of necessary design, construction, and maintenance does not invalidate the regulations. In all of the regulations under review, the administrator has avoided dictating engineering specifications. Instead, he has properly concentrated on prescribing limitations on the amount of pollutants that may be discharged regardless of the construction or treatment techniques that are employed. Using the 10-year 24-hour engineering standard without detailed specifications for impoundment facilities is consistent with this approach. The petitions to set aside the regulations are denied with the exception of the regulations dealing with variances, which are remanded to the agency for reconsideration: . See E. I duPont de Nemours & Co. v. Train, 430 U.S. 112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), for a discussion of the jurisdiction of courts of appeals to review these regulations. . 33 U.S.C. §§ 1251-1376. . 33 U.S.C. § 1251(a). . The Act contemplates a two-phase reduction in pollutant discharges. Second-phase standards (§ 301(b)(2) [33 U.S.C. § 1311(b)(2)]) are not in issue here. . 33 U.S.C. § 1311(b)(1)(A). . EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-05, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). . 33 U.S.C. § 1314(b)(1). . 42 Fed.Reg. 21380-21390 (April 26, 1977), adding certain parts of 40 C.F.R. Part 43,4. Regulations governing “new source” coal production facilities were promulgated separately and are not before us in these cases. See 44 Fed.Reg. 2586-2592 (Jan. 12, 1979). . The administrator’s brief states that this is the first case brought to review best practicable control technology standards in which the numerical national limitations have not been attacked. • . 5 U.S.C. § 706(2). See Weyerhaeuser Co. v. Costle, 190 U.S.App.D.C. 309, 322-26, 590 F.2d 1011, 1024-28 (1978); see generally D. Currie, Judicial Review under Federal Pollution Laws, 62 Iowa L.Rev. 1221 (1977). . 5 U.S.C. § 706(2); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). . Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, 91 S.Ct. 814. . Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir. 1978); Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.l (8th Cir. 1976). . E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 128, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Inland Steel Co. v. EPA, 574 F.2d 367, 373 (7th Cir. 1978). . Weyerhaeuser Co. v. Costle, 190 U.S.App. D.C. at 323, 590 F.2d at 1025. . The variance clause, contained in 40 C.F.R. §§ 434.22, 434.32, and 434.42 (1977), provides: In establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can affect the industry sub-categorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence . . . that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. . If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations ... either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. . 33 U.S.C. § 1314(b)(1)(B). This section provides in pertinent part that factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 1311 of this title shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate. . See note 18 on p. 244. 18. 33 U.S.C. § 1311(c). This section provides that the Administrator may modify the 1984 second-stage pollution control requirements upon a showing by the owner or operator of [a] point source satisfactory to the.Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. . 601 F.2d 111 (4th Cir. 1979). . 545 F.2d 1351 (4th Cir. 1976). . In re Louisiana-Pacific Corp., 10 E.R.C. at 1854. . See Appalachian Power, 545 F.2d at 1359. . See n.16, supra. . 545 F.2d at 1378. . 190 U.S.App.D.C. 309, 339-42, 590 F.2d 1011, 1041-44 (1978). . EPA v. California ex rel. State Water Resources Control Board, 426 U.S. at 204-05, 96 S.Ct. at 2024-2025, 48 L.Ed.2d 578. . See, e. g., Federal Water Pollution Control Act Amendments of 1977, Hearings Before the Subcomm. on Environmental Pollution of the Senate Comm, on Environment and Public Works, 95th Cong., 1st Sess., Par. 10 at 540-41 (1977). . Act of Dec. 27, 1977, Pub.L. 95-217, 91 Stat. 1567, amending 33 U.S.C. (Clean Water Act of 1977). . See 33 U.S.C. § 1311(h). . See 33 U.S.C.'§ 1311(h); S.Rep.No. 95-370 on S. 1952, 95th Cong., 1st Sess. 45, 1977 U.S. Code Cong. & Admin.News, pp. 4326, 4370. The only provision for less stringent discharge standards based upon receiving water quality in the 1972 Act pertained to thermal discharges, which are not in issue here. See 33 U.S.C. § 1326(a); In re Louisiana-Pacific Corp., 10 E.R.C. at 1848-50. In all other respects, the 1972 Act allowed consideration of receiving water quality only as a basis for standards that are more stringent than the technology-based effluent limitations. See, e. g., 33 U.S.C. §§ 1311(b)(1)(C), 1312, 1313, 1316(c). . In In re Louisiana-Pacifíc Corp., 10 E.R.C. at 1853 n.30, the administrator observed: “There is no reason why, in a proper case, a fundamental difference in non-water quality environmental impact could not justify a variance.” See 33 U.S.C. § 1314(b)(1)(B). . See § 301(b)(1)(A) [33 U.S.C. § 1311(b)(1)(A)]. . See § 304(b) [33 U.S.C. § 1314(b)]; but see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 325-326, 510 F.2d 692, 705-06 (1975). . 33 U.S.C. § 1319(a)(5)(B). As explained in the Senate committee report: [t]he extension would be available only when the Administrator determines that the dis-charger acted in good faith; that a serious commitment to achieve compliance had been made by the discharger; that compliance would occur no later than January 1, 1979; that the extension would not result in other sources having to achieve additional controls; that the application for a permit was filed prior to December 31, 1974; and that the necessary facilities for abatement are under construction. S.Rep.No. 95-370 on S. 1952, 95th Cong., 1st Sess. 61, 1977 U.S.Code Cong. & Admin.News, p. 4386. . See 123 Cong.Rec. S 19650 (daily ed., Dec. 15, 1977) (remarks of Sen. Muskie, the chairman of the drafting subcommittee); S.Rep.No. 95-370 on S. 1952, 95th Cong., 1st Sess. 61-62, 1977 U.S.Code Cong. & Admin.News, pp. 4385-4387; Monongahela Power Co. v. EPA, 586 F.2d 318, 12 E.R.C. 1440 (4th Cir. 1978); Republic Steel Corp. v. Costle, 581 F.2d 1228 (6th Cir. 1978); cf. State Water Control Board v. Train, 559 F.2d 921, 927-28 (4th Cir. 1977). . 33 U.S.C. § 1365. . State Water Control Board v. Train, 559 F.2d 921, 927-28 (4th Cir. 1977); accord, Wey-erhaeuser Co. v. Costle, 11 E.R.C. at 2185 n.86. . 5 U.S.C. § 553. . 33 U.S.C. §§ 1251(e), 1314. . 40 Fed.Reg. 48830. . 41 Fed.Reg. 19832. . 40 C.F.R. §§ 434.32(a) and 434.42(a) (footnote 1 to effluent limitations table). . 42 Fed.Reg. 21382-21383. . Cf. American Iron & Steel Institute v. EPA, 568 F.2d 284, 294-95, 306-08 (3d Cir. 1977). . See § 304(b)(1) [33 U.S.C. § 1314(b)(1)]; E. I. duPont de Nemours & Co. v. Train, 430 U.S. at 131 n.21, 97 S.Ct. 965, 51 L.Ed.2d 204; Wey-erhaeuser Co. v. Costle, 190 U.S.App.D.C. at 351, 590 F.2d at 1053. . Section 402(a)(1) of the Act [33 U.S.C. § 1342(a)(1)] gives the administrator the power to issue effluent limitations on a case-by-case basis “prior to the taking of necessary implementing actions relating to” requirements under §§ 301, 302, 306, 307, 308, and 403 of the Act. Sections 402(b)-(c) [33 U.S.C. §§ 1342(b)-(c)] allow for issuance of permits on a case-by-case basis by state authorities, subject to veto by the administrator under § 402(d)(2) [33 U.S.C. § 1342(d)(2)], A dischar-ger is free to challenge the terms of a permit issued by the administrator, or the administrator’s veto of a state-issued permit, in a court of appeals. 33 U.S.C. § 1369(b)(l)(D)-(F). . Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. at 332, 510 F.2d at 712. . See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. at 325-332, 510 F.2d at 705-12. . 5 U.S.C. § 553. . §§ 101(e), 304 [33 U.S.C. §§ 1251(e), 1314], . Action for Children’s Television v. FCC, 183 U.S.App.D.C. 437, 449, 564 F.2d 458, 470 (1977). . International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 428, 478 F.2d 615, 632 (1973). . See notes 49 and 50, supra. . Section 301(b)(1)(C) of the Act [33 U.S.C. § 1311(b)(1)(C)] requires the agency to enforce any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510 [33 U.S.C. § 1370]) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter. Section 304(a)(4) [33 U.S.C. § 1314(a)(4)] makes suspended solids a mandatory element of pollution control standards. . 40 Fed.Reg. 48831 (Oct. 17, 1975). . See, e. g., American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 133, 539 F.2d 107, 135 (1976); Maryland v. EPA, 530 F.2d 215, 222 (4th Cir. 1975), vacated and remanded on other grounds, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977). . §§ 301(e), 304(b) [33 U.S.C. §§ 1311(e), 1314(b)]; Appalachian Power, 545 F.2d at 1373. . See § 304(f) [33 U.S.C. § 1314(f)], . § 502(14) [33 U.S.C. § 1362(14)]. . Appalachian Power, 545 F.2d at 1373. . 40 C.F.R. §§ 434.22(aHb). . 40 C.F.R. § 401.11(d) (general definition, incorporated in these regulations by § 401.10). . 40 C.F.R. § 434.11(e). . 40 C.F.R. § 434.11(f). . 40 C.F.R. § 434.20. . See n.61, supra, and accompanying text. . See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 163-66, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). . Save our Cumberland Mountains, Inc.; Citizens League to Protect the Surface Rights, Inc.; West Virginia Citizen Action Group, Inc.; Mountain Community Union, Inc.; and Save our Mountains, Inc. . EPA, Development Document for Interim Final Effluent Limitations Guidelines and New Source Performance Standards for the Coal Mining Point Source Category (May 1976). . See, e. g., 42 Fed.Reg. 21383 (April 26, 1977). . See, e. g., Ky.Rev.Stat. Chapter 350 (1978 Cum.Supp.); 35 Penna.Stat. § 691.1 et seq. (1978 Supp.); Commonwealth v. Barnes & Tucker Co., 472 Pa. 115, 371 A.2d 461 (1977). Also, according to EPA, the State of West Virginia has consistently certified that mines must continue to meet effluent limitations after release of the reclamation bond. . §§ 107 and 304(f)(2)(B) [33 U.S.C. §§ 1257 and 1314(f)(2)(B)], Both sections, however, provide only for study, analysis, and demonstration projects. . Unlike coal preparation plants and plants in certain manufacturing industries, coal mining does not use water as part of the process, except in small quantities for dust control and fire prevention. Appendix B to final regulations, 42 Fed.Reg. 21387 (April 26, 1977). . See 42 Fed.Reg. 21387 (April 26, 1977). . See 42 Fed.Reg. 21383, 21387 (April 26, 1977). . 33 U.S.C. § 1311(e); see American Iron and Steel Institute v. EPA, 568 F.2d 284, 306-08 (3d Cir. 1977). . See text and cases cited at n.45, supra. . 40 C.F.R. § 434.11(d). . 40 C.F.R. § 434.11(b). . 40 C.F.R. §§ 434.32(c), 434.42(c). . Act of August 3, 1977, Pub.L. 95-87, 91 Stat. 447, codified as 30 U.S.C. §§ 1201-1328. . § 515 of the surface mining act [30 U.S.C. § 1265]. . § 516 of the surface mining act [30 U.S.C. § 1266], . § 304(b)(1)(B) of the water pollution control act [33 U.S.C. § 1314(b)(1)(B)]; see FMC Corp. v. Train, 539 F.2d 973, 978-79 (4th Cir. 1976). . § 702(a)(3) of the surface mining act'[30 U.S.C. § 1292(a)(3)], . 33 U.S.C. §§ 1311, 1314. . § 702(c) of the surface mining act [30 U.S.C. § 1292(c)]. . § 201(c)(12) of the surface mining act [30 U.S.C. § 1211(c)(12)]. . Id . After the administrator issued the regulations applicable to active coal mines, the Secretary of the Interior promulgated interim final regulations to implement the surface mining act. See 30 C.F.R. Part 77 (1977). The administrator concurred in these regulations. 42 Fed. Reg. 62639 (Dec. 13, 1977). The regulations are presently under review. In re Surface Mining Regulation Litigation, 456 F.Supp. 1301, 11 E. R.C. 2078 (D.D.C.1978), appeal docketed No. 78-2190 (D.C.Cir., Nov. 20, 1978); see also In re Surface Mining Regulation Litigation, 452 F. Supp. 327 (D.D.C.1978), aff'd mem., No. 78-1406 (D.C.Cir., May 25, 1978). . § 402(a)(1) [33 U.S.C. § 1342(a)(1)], . See §§ 301(b)(1)(C), 401, 510 [33 U.S.C. §§ 1311(b)(1)(C), 1341, 1370]; United States Steel Corp. v. Train, 556 F.2d 822, 835 (7th Cir. 1977). . Section 505 [33 U.S.C. § 1365] allows any citizen, after giving the administrator sixty days’ notice, to “commence a civil action on his own behalf . against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” The same provision gives the district courts original jurisdiction over such suits, without regard to the amount in controversy or the citizenship of the parties. See, e. g., Central Hudson Gas & Electric Corp. v. EPA, 587 F.2d 549, 555-57 (2d Cir. 1978); Environmental Defense Fund v. EPA, 194 U.S.App. D.C. 143, 598 F.2d 62 (Nov. 3, 1978); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975); cf. Currie Judicial Review under Federal Pollution Laws, 62 Iowa L.Rev. 1221, 1249-50 (1977). . “10-year 24-hour precipitation event” is an engineering term. It is a rainfall figure, taken from National Weather Service charts for the relevant geographic area, which indicates the heaviest 24-hour precipitation that can be expected to fall in a decade. 40 C.F.R. § 434.-11(h) (1977). The possible use of this criterion as a basis for an overflow exemption was recognized during legislative debate on the Act. Senate Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. 1298 (1973). . EPA summary of final regulations, 42 Fed. Reg. 21381 (April 26, 1977). . See Mandatory Safety Standards, Surface Coal Mines and Surface Work Areas of Underground Coal Mines, 30 C.F.R. 77.216 through 77.216-5 (1977) (promulgated by the Mine Enforcement and Safety Administration). The administrator took note of these regulations. 42 Fed.Reg. 21381-21382 (April 26, 1977). . See, e. g., 40 C.F.R. §§ 415.22(b) (aluminum sulfate production) and 421.42(b) (primary copper smelting) (1977). These regulations allow an exemption for the 10-year 24-hour event only “when such event occurs.” . 40 C.F.R. §§ 434.25(b), 434.35(b), 434.45(b), promulgated in 44 Fed.Reg. 2590 (Jan. 12, 1979). . Other regulatory agencies use this method of stating design storm criteria. These agencies include the Soil Conservation Service, the United States Bureau of Reclamation, the American Society of Civil Engineers, and the regulatory agencies of several states. See United States Department of the Interior, Mining Enforcement and Safety Administration, Engineering and Design Manual for Coal Refuse Disposal Facilities, page 6.57 n.l and sources cited (1975).

United States v. Hamel

ENGEL, Circuit Judge. Gilbert G. Hamel was convicted by a district court jury of wilfully discharging gasoline onto Lake St. Clair, a navigable waterway, in violation of Section 101 of the Federal Water Pollution Control Act, as amended in 1972, 33 U.S.C. § 1251 et seq. In his direct appeal Hamel asserts that certain closing arguments of the prosecution were improper, that there was insufficient evidence of his identity and scienter to support his conviction and that the section of the Act under which he was indicted and convicted did not prohibit the discharge of gasoline. We affirm. SUFFICIENCY OF EVIDENCE The proofs showed that on January 22, 1975, Raymond Zembrzycki and Ernest Gregg were ice fishing in the vicinity of the Blue Lagoon Marina on Lake St. Clair, Michigan. Concerned about a quantity of gasoline which they discovered on the ice around Blue Lagoon’s pier, they asked Ronald Spradlin, a 16-year old boy who had accompanied them, to notify the appropriate authorities. Spradlin notified the Michigan Department of Natural Resources, which in turn notified the Coast Guard. Zembrzycki testified that in the meantime they observed a man in a tan jacket emerge from a blue-green car and proceed to a gasoline dispenser located at the end of the pier. The man “put his hand on the pump and turned something” on the dispenser, and then drove away. Three to five minutes later the fishermen noticed gasoline gushing from the pump. A few minutes after the discharge, the fishermen observed the same car return and the same man again touch something at the pump. Both fishermen at trial identified the man they observed as the defendant. Two Coast Guard investigators arrived at the marina in response to the call. They saw a man, who later identified himself as Mr. Hamel, pumping gasoline into a Corvette automobile from a pump which was located in a different area than the pier. Hamel told the investigators he was the yard foreman for the Blue Lagoon Marina. Asked if he knew of any gasoline spill or if he knew of any other fías dispenser or pumps at the facility, Hamel responded that he did not. Coast Guard investigation later revealed that approximately 200 to 300 gallons of gasoline had been discharged upon the ice. An examination of the dispenser from which the fishermen had seen the gasoline discharged disclosed that it did not contain a pump. The proofs indicated that the pump was located in an underground gas tank in front of the showroom of the marina and some distance from the dispenser. Chief Petty Officer McCauley of the United States Coast Guard testified that in order to dispense the gasoline both a lever on the dispenser and a pump situated at the tank source had to be activated. Viewing the evidence most favorably to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Dye, 508 F.2d 1226 (6th Cir. 1974), cert. denied 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we are satisfied that the evidence, while circumstantial, was fully sufficient to justify submission of the issues of identity and scienter to the jury. Hamel was positively identified by two witnesses. His deceptive responses to the investigators and his observed journeys to and from the dispenser support the jury conclusion that Hamel intentionally activated the necessary levers to discharge the gasoline onto Lake St. Clair. IMPROPER CLOSING ARGUMENT Defendant claims that the government in its final summation to the jury misstated the effect of 33 U.S.C. § 1321. Specifically the defendant urges that it was improper for the prosecutor to emphasize the criminal penalty in that section for the failure to notify authorities of an oil spill and neglect the section’s civil remedies. However, the statement made, if incomplete, was nonetheless accurate. No objection was made by defense counsel at the time. To the extent the comment was improper, we consider it harmless. CRIMINAL LIABILITY FOR THE DISCHARGE OF GASOLINE UNDER SECTIONS 1311 and 1319 The defendant claims that any action taken against him by the government should have proceeded under either 33 U.S.C. § 1321 or § 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (Refuse Act). Those statutes provide respectively for civil and criminal penalties for oil and gasoline spillage. However, defendant was indicted and tried under § 1319(c)(1), the criminal sanction provision of the Federal Water Pollution Control Act. The government’s implicit assumption for the charge is that gasoline is a pollutant within the definitional section of the Act, § 1362(6). It is argued by defendant that gasoline cannot be construed as a pollutant under § 1362(6). Congress, it is claimed, could not have intended in enacting the 1972 amendments to provide criminal penalties for gasoline spills because criminal sanctions were already available under the Refuse Act and because the definition of “pollutant” under section 1362(6) fails to include oil and oil products as contrasted to the broad detailed inclusion of oil in the civil remedy provisions of § 1321. We disagree. In the 1972 amendments to the Federal Water Pollution Control Act, Congress expressed its objective to eliminate the discharge of pollutants into the navigable waters by 1985. The amendments seek to increase federal responsibility for the restoration and maintenance of the “chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 1311(a) states the broad primary declaration of the Act that the “discharge of any pollutant by any person shall be unlawful.” Certain exceptions are provided, including the possession of a permit under § 1342. The negligent or wilful violation of § 1311(a), however, without justification subjects one to the criminal sanctions § 1319(c)(1). The statutory scheme of the Act relies heavily on the triggering mechanism of § 1311(a) which in turn is dependent of the definition of “pollutant”. That definition is provided in § 1362(6): (6) The term “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) “sewage from vessels” within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. The government contended successfully at trial that gasoline could be subsumed under “biological materials”. While admittedly petroleum products do contain organic compounds, we believe the more certain approach is an analysis of Congressional intent and legislative history. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). It is, of course, true that in hindsight the entire controversy might have been solved by the single addition of the term “petroleum products” to the definitional section. We do not, however, read the failure to do so as an intent to exclude these materials from the Act. On the contrary, we conceive the employment of the broad generic terms as an expression of Congressional intent to encompass at the minimum what was covered under the Refuse Act of 1899. The Refuse Act of 1899, 33 U.S.C. § 407, is itself a codification of prior legislation. It prohibits the discharge of “any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom, in a liquid state, into any navigable water . . . ” In United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966) the Supreme Court determined that commercially valuable aviation gasoline was within the proscription of the Act, rejecting defendant’s contention that the statutory phrase “refuse matter” excluded valuable substances. To make the matter conclusive, the Supreme Court not only held that gasoline was encompassed in the term “refuse”, but that it was undoubtedly a pollutant. Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant. United States v. Standard Oil Co., supra, at 226, 86 S.Ct. at 1428. When the definition of pollutant in § 1362(6) is read in the light of the judicial construction of § 407, it becomes apparent that the Congress expressly intended by the more generic language to include discharged gasoline, for the framers expressly intended that the definition would at least be as broad as the coverage of the Refuse Act. For the first time the Committee would add to the law a definition of the term pollutant. In order to trigger the control requirements over addition of materials to the navigable water, waters of the contiguous zone and the ocean, it is necessary to define such materials so that' litigable issues are avoided over the question of whether the addition of a particular material is subject to control requirements. The Committee has extracted from the Refuse Act the basic formula and added municipal discharges to it, so that before any material can be added to the navigable waters authorization must first be granted by the Administrator, or State in the case of an approved State program, under Section 402. The Committee has made two specific exceptions from .the term pollutant; sewage from vessels, as that term is defined and controlled through the provisions of Section 312, and water, gas, or other materials associated with the secondary recovery of oil. (emphasis added) S.Rep. No. 92-414, 1972 U.S.Code Cong. & Ad.News 3742. The Supreme Court in Standard Oil stated that “the meaning we must give the term ‘refuse’ must reflect the present codification’s statutory antecedents.” Similarly, in interpreting “pollutant”, we find compelling the incorporation of the broad proscription of the Refuse Act into the Federal Water Pollution Control Act. The value of a strong prohibition of all discharges was not underestimated by Congress: The Committee believes that the no-discharge declaration in Section 13 of the 1899 Refuse Act is useful as an enforcement tool. Therefore, this section declares the discharge of pollutants unlawful. The Committee believes it is important to clarify this point: No one has the right to pollute. S.Rep. No. 92-414, 1972 U.S.Code Cong. & Ad.News 3709. Although in contrast § 1321 explicitly defines “oil” as within its coverage along with “hazardous substance”, we do not believe that that specificity of definition alone indicates that § 1321 was intended to be the sole Congressional expression on oil discharges. The language of § 1321 indicates that a primary concern is to arrange for the removal of oil spills in navigable water, § 1321(c), with the liability for the costs of removal assessed against the discharger. § 1321(f). In the case of an owner or operator of an onshore facility, the liability is limited to $8,000,000; however, on proof by the government that the discharge was the result of wilful negligence or wilful misconduct within the privity and knowledge of the owner, the owner or operator is liable for the full amount of the removal costs. The legislative history of the predecessor of § 1321 indicates that Congress was concerned with large oil spills as evidenced by the break-up of the tanker Torrey Canyon off the coast of England and the ruination of Santa Barbara’s beaches by offshore drilling. H.R.Rep. No. 91-127, 1970 U.S. Code Cong. & Ad.News pp. 2691, 2692. Seen in this light, the primary concern is the preservation of the environment, not the imposition of criminal penalties. However, the existence of criminal sanctions outside of the section is explicitly acknowledged. To further cooperation and “to facilitate the mitigation of pollution damage”, Apex Oil Co. v. United States, 530 F.2d 1291, 1292 (8th Cir. 1976), notification of an oil spill by a discharger or “exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” § 1321(b)(5). The same subsection also provides for a separate criminal penalty should a person fail to notify the appropriate authorities as soon as he has knowledge of any discharge of oil or a hazardous substance. Concerned perhaps that the broad Congressional policy enunciated in § 1321(b)(1) that there should be no discharges of oil or hazardous substances into or upon the navigable waters might be thought to supersede other sections of the Act, the Conference report states that: Notwithstanding the broad definition of “discharge” in subsection (a)(2) the provisions of this section are not intended to apply to the discharge of oil from any onshore or offshore facility, which discharge is not in harmful quantities and is pursuant to, and not in violation of, a permit issued to such facility under section 402 [33 U.S.C. § 1342] of this Act. S.Conf.Rep. 92-1236, 1972 U.S.Code Cong. & Ad.News pp. 3776, 3811. However, if defendant’s contentions are correct and gasoline is not a pollutant within the meaning of § 1362(6), the protective provisions of § 1342 would be inapplicable. Section 1342(a)(1) provides: Except as provided in sections 1328 and 1344 of this title the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title . . . (emphasis added) We note also the provisions of § 1321(c)(3): Nothing in this section shall be construed as affecting or modifying any other existing authority of any Federal department, agency, or instrumentality, relative to onshore or offshore facilities under this chapter or any other provision of law, or to affect any State or local law not in conflict with this section. Although not necessarily intended to afford comity with co-existing criminal statutes, subsection (o)(3) expresses at least a Congressional intent that § 1321 should not be interpreted exclusively and that other remedies might be available. Appellant nevertheless urges us to eschew our construction of the Act out of deference to the general rule that penal statutes are strictly and narrowly construed. In so doing, he asks us to adopt the rationale of Mr. Justice Harlan’s dissent in Standard Oil, supra. It is the rule of Standard Oil, however, and indeed of our own circuit’s interpretation of water pollution legislation that it be given a generous rather than a niggardly construction. Standard Oil, supra, 384 U.S. at 226, 86 S.Ct. 1427; United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903; United States v. Ashland Oil & Transporta tion Co., 504 F.2d 1317 (6th Cir. 1974). We may not ignore such a history. Likewise we find no merit in defendant’s argument that strict construction of the definition of “pollutant” under § 1362 should be favored because of the need of people to know what the law is to enable them to conform to it. Even Mr. Justice Harlan, in his dissent in Standard Oil, supra, 384 U.S. at 235, 86 S.Ct. 1427, found this argument unappealing with respect to a narrow construction of the Refuse Act. So do we and for the same reasons, which are strengthened here by the acknowledged applicability of the ban of the Refuse Act. The fact that defendant might have been prosecuted under either § 1319 or § 407 is of no significance where Congress intended a more severe penalty in the event the discharge was deliberate and wilful. When the same conduct is prohibited by two penal statutes, the government may proceed under either and the defendant may not complain if the government elects to proceed under the harsher one. United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); United States v. Librach, 520 F.2d 550, 556 (8th Cir. 1975), cert. denied, - U.S. -, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976); United States v. Brown, 482 F.2d 1359, 1360 (9th Cir. 1973). Affirmed. . The Supreme Court discussed the reasons for the amendments in Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). . We also note the related definition in § 1362(19) for “pollution” as the “man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of the water.” The Committee has added a definition of pollution to further refine the concept of water quality measured by the natural chemical, physical and biological integrity. Maintenance of such integrity requires that any changes in the environment resulting in a physical, chemical or biological change in a pristine water body be of a temporary nature, such that by natural processes, within a few hours, days or weeks, the aquatic ecosystem will return to a state functionally identical to the original. In those water bodies which are not pristine, it should be the national policy to take those steps which will result in change towards that pristine state in which the physical, chemical and biological integrity of the water body can be said to exist. Striving towards, and maintaining the pristine state is an objective which minimizes the burden to man in maintaining a healthy environment, and which will provide for a stable biosphere that is essential to the well-being of human society. S.Rep. 92-414, 1972 U.S.Code Cong. & Ad. News, pp. 3668, 3742. . The Webster Third New International Dictionary defines “petroleum” as “essentially a complex mixture of hydrocarbons of different types with small amounts of other substances (as oxygen compounds, sulfur compounds, nitrogen compounds, resinous and asphaltic components and metallic compounds) . . . ” The definition of “hydrocarbons” is “any of a large class of organic compounds containing only carbon and hydrogen . . . ” (emphasis added). We also note from the foregoing definitions the potential applicability of the phrase “chemical wastes” in § 1362(6). . Although originally thought only to bar the discharge of substances which would impair navigability, it is clear now that the Act bars the discharge of all foreign substances outside the scope of its exception. United States v. Pennsylvania Chemical Corp., 411 U.S. 655, 671, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). . The addition of municipal discharges disavows the exception in the Refuse Act for liquid sewage. “Sewage” and “municipal waste” are now explicitly defined under the amendments as a pollutant. § 1362(6). . Permits for discharges under the Refuse Act are explicitly incorporated into the Federal Water Pollution Control Act. 33 U.S.C. §§ 1342(a)(4), (5). . Section 1321(a)(1) defines “oil” as “oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil”. . A position analogous to defendant’s was argued by a defendant vessel in La Merced 84 F.2d 444 (9th Cir. 1936). The vessel was charged under the Refuse Act for the discharge of oil into navigable waters. Defendant contended that the broad prohibitions of the Refuse Act should not be construed to cover oil when the Oil Pollution Act of 1924 (a predecessor of § 1321) specifically covered the discharge of oil. The court, citing a savings clause comparable to § 1321(o)(3) in the Oil Pollution Control Act of 1924, rejected defendant’s contention. . Section 1319(c)(1) requires proof of negligent or wilful behavior and subjects violators to a fine of not less than $2,500 nor more than $25,000 per day of violation or by imprisonment for not more than one year, or both. For a violation of the Refuse Act, section 411 provides for a fine not exceeding $2,500 nor less than $500 or by imprisonment for not less than thirty days nor more than $500 or by imprisonment for not less than thirty days nor more than one year or both. The Refuse Act has been interpreted as a strict liability statute. United States v. White Fuel Corp., 498 F.2d 619 (1st Cir. 1974). Thus contrary to defendant’s contentions, our construction of the Act does not make § 1319 superfluous or inconsistent with the Refuse Act. With the amendments of 1972, Congress provided a harsher penalty for the discharge of oil with the added burden on the government to prove scienter. We note the parallel provision in § 1321(f) for more extensive civil liability with proof of scienter.

American Petroleum Institute v. Environmental Protection Agency

BREITENSTEIN, Circuit Judge. The American Petroleum Institute, an incorporated trade association of companies in the petroleum industry, and ten companies engaged in petroleum refining and related activities, have petitioned for review of regulations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. §§ 1251-1376. The regulations are contained in 40 C.F.R. Part 419, Petroleum Refining Point Source Category. The Administrator at times will be referred to as EPA. The statutory references will be those found in the Act as set out in 86 Stat. 816 et seq. Petitioners will be referred to as Refineries. Section 509(b)(1)(E) confers jurisdiction on the court of appeals. American Petroleum Institute v. Train, 10 Cir., 526 F.2d 1343, sustains that jurisdiction and will not be reconsidered. I. THE ACT The Act resulted from dissatisfaction with predecessor statutes which relied unsuccessfully on water quality standards as the primary method of pollution control. See S.Rep. No. 92-414, 92 Cong. 2d Sess., 2 U.S.Code Cong. & Adm.News 72 3668, 3674. The objective of the Act “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 101(a). The goal is the elimination by 1985 of “the discharge of pollutants into the navigable waters.” § 101(a)(1). Section 301(a) provides that “the discharge of any pollutant by any person shall be unlawful” except “as in compliance” with specified sections of the Act. The number of dis-chargers has been variously estimated from 30,000 to 70,000. The control is by effluent limitations on discharges from point sources. See § 301. The Act provides progressively severe limitations. By July 1, 1977, the limitations “shall require the application of the best practicable control technology currently available” (BPT). For July 1, 1983, the requirement is “the best available technology economically achievable,” (BAT). For new sources, i. e., those whose construction commences after the promulgation of pertinent regulations, the Act provides a “standard of performance” reflecting “the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives,” (BADT). Primary enforcement of the Act is secured through the permit system established by § 402. Discharge permits may be issued by the Administrator, § 402(a)(1), or by a state which has adopted a permit program approved by the Administrator. § 402(b). The Administrator has veto power over a state issued permit. § 402(d)(2). The Administrator may withdraw approval of a state permit program if he finds that it is not being administered in accordance with the Act. § 402(c)(3). All permits shall comply with the applicable provisions of §§ 301 (effluent limitations), 306 (new source standards), and other specified sections of the Act. See § 402(a)(1) and (b)(1)(A). The issuance or denial of a permit may be reviewed by the appropriate court of appeals. § 509(b)(1)(F). A violation of any conditions or limitations imposed by specified sections of the Act or by a permit may result in the imposition of both civil and criminal penalties. § 309. “Citizen Suits” alleging violations of the Act may be brought under § 505. Section 304(a)(1) provides that within one year after enactment the Administrator must publish “criteria for water quality accurately reflecting the latest scientific knowledge” on enumerated subjects. Within the same period the Administrator shall publish regulations “providing guidelines for effluent limitations.” § 304(b). Subsection (b)(1)(A) applies to the 1977 step and subsection (b)(2)(A) to the 1983 step. Each subsection mandates consideration of specified factors. The Administrator did not act within the one year requirements of § 304. Compliance was not within the realm of reality. An estimated 30,000 applications for permits were filed. EPA characterizes the Act as “incredibly complex and demanding.” See duPont II infra. A private suit was brought to compel compliance. Natural Resources Defense Council, Inc. v. Train (NRDC), 166 U.S.App.D.C. 312, 510 F.2d 692. The result was a court imposed timetable. Ibid, at 710-714. The regulations here under attack were promulgated in May and September, 1974, and some were amended in May, 1975. The EPA regulations relating to industrial discharge of pollutants have produced much litigation. Decisions to date of various courts of appeals are, in chronological order: 1— CPC International, Inc. v. Train, 8 Cir., 515 F.2d 1032 (Corn Wet Milling); 2— American Iron and Steel Institute v. Environmental Protection Agency, 3 Cir., 526 F.2d 1027 (Iron and Steel Manufacturing); 3— American Meat Institute v. Environmental Protection Agency, 7 Cir., 526 F.2d 442 (Meat Products); 4— American ■ Petroleum Institute v. Train (API I), 10 Cir., 526 F.2d 1343 (Jurisdiction); 5— E. I. duPont de Nemours & Company v. Train (duPont I), 4 Cir., 528 F.2d 1136. Filed December 30, 1975, cert. granted 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174 (Jurisdiction); 6— E. I. duPont de Nemours & Company v. Train (duPont II), 4 Cir., 541 F.2d 1018. Filed March 10, 1976, cert. granted-Ú.S.-, 96 S.Ct. 3165, 49 L.Ed.2d - (Inorganic Chemicals); 7— Tanners’ Council of America, Inc. v. Train, 4 Cir., 540 F.2d 1188. Filed March 10, 1976 (Leather Tanning); 8— FMC Corporation v. Train, 4 Cir., 539 F.2d 973. Filed March 10, 1976 (Plastic and Synthetic Materials); 9— Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 537 F.2d 620. Filed April 28, 1976 (Phosphorous Manufacturing — existing sources); 10— Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 537 F.2d 639. Filed April 28, 1976 (Phosphorous Manufacturing — new sources); 11— Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 2 Cir., 537 F.2d 642. Filed April 28, 1976 (Variance Clauses); 12— American Frozen Food Institute v. Train, D.C.Cir., 539 F.2d 107. Filed May 11, 1976 (Frozen Potato Products); and 13— Appalachian Power Co. v. Train, 4 Cir., Nos. 74-2096 etc., opinion filed July 16,1976 (Steam Electric Power). A cursory glance at the above listed decisions reveals the difficulties which the federal courts of appeals have had with the Act. Popular demand for legislative action to control water pollution is shown by the fact that on the votes to override the presidential veto, only 12 senators and 23 representatives voted to sustain the veto. Perhaps the pressure on Congress to do something was a major cause of the unsatisfactory legislation. The Act is difficult to understand, construe and apply. We can add nothing to the comments of other courts. See Second Circuit, Hooker Chemicals at 626-627; Third Circuit, Steel Institute, 526 F.2d at 1037 n. 14a; and Fourth Circuit, duPont II, at 1026-1027. In a case involving the Act before us, Train v. Colorado Public Interest Research Group, Inc., the Supreme Court said, - U.S.-, 96 S.Ct. 1938, 48 L.Ed.2d 434, in a quote from United States v. American Trucking Associations, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 that “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its [legislative history’s] use, however clear the words may appear on ‘superficial examination.’ ” (Footnotes omitted). The difficulty with the present case is that sometimes the statutory words, phrases, and provisions are clear and sometimes they are not. The same can be said of the legislative history. We consider both the statute and its legislative history. As said by the Second Circuit, Hooker Chemicals, at p. 627: “The very magnitude of the task undertaken by Congress and delegated to the EPA for fulfillment probably accounts for the lack of clarity.” In the discussion which follows, the guiding star is the intent of Congress to improve and preserve the quality of the Nation’s waters. All issues must be viewed in the light of that intent. II. SCOPE OF REVIEW The Refineries attack generally all of the pertinent regulations on the grounds of lack of authority and of noncompliance with the Act. They attack certain specific regulations both on the legal ground of noncompliance with the Act and on the factual ground that the record does not sustain the actions of the EPA. We are concerned with informal rule-making by EPA in the exercise of functions delegated to it by the Act. The record consists of notice of proposed action, comments of interested parties, agency consideration of those comments, and ultimate promulgation of regulations. The regulations, to some extent, must be anticipatory because, although improvements in the techniques of pollutant control can be reasonably expected, we do not know what those improvements will be. The immediate problem is the scope of judicial review. Much has been written on this subject in the decisions bearing on the Act before us. See e. g., Steel Institute, 526 F.2d at 1047 and Meat Institute, 526 F.2d at 452-453. Essentially they rely on and adopt the principles stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136. In substance it says that the function of judicial review is to determine (1) authority of the agency, (2) compliance by the agency with the prescribed procedures, and (3) any claim that agency action is arbitrary, capricious, or an abuse of discretion. Ibid, at 415 — 417, 91 S.Ct. 814. On legal issues the controlling principles are well defined. Trouble arises in connection with factual issues. Overton Park says that the Administrative Procedure Act, 5 U.S.C. § 706, requires “the reviewing court to engage in a substantial inquiry”, and a “probing, in-depth review.” Ibid. 401 U.S. at 415, 91 S.Ct. [814] at 823. This is not an adoption of the Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, test of substantial evidence in the light of the entire record. It does require consideration and evaluation of the facts. Perhaps agency action which is not based on substantial evidence is arbitrary and capricious. Many of the regulations are related to EPA policy and the the presently unknowable technologies of the future for pol- The two volume, 1766 page, legislative history does not help us much. The Second Circuit has said, Hooker Chemicals, at p. 627, that “[t]he legislative history compounds the difficulty.” See also statements of Fourth Circuit, duPont II, at 1027. A comparison of the discussion of the legislative history by the Eighth Circuit in the Corn Wet Milling case, 515 F.2d at 1039-1042 with that found in E. I. duPont de Nemours and Company v. Train, W.D.Va., 383 F.Supp. 1244, 1254-1255, highlights the problem. We can add nothing to the explication of legislative history by the Third Circuit in the Steel Institute case, 526 F.2d at 1043-1045, and by the Seventh Circuit in the Meat Institute case, 526 F.2d at 451-452. lution control. As was said in Permian Basin Area Rate Cases, 390 U.S. 747, 790, 88 S.Ct. 1344, 1372, 20 L.Ed.2d 312, “the breadth and complexity of the Commission’s responsibilities demand that it be given every reasonable opportunity to formulate methods of regulation appropriate for the solution of its intensely practical difficulties.” Our concern is with a regulatory statute which demands preventive or curative action. Factual certainty of future technologies is impossible. We can do no more than consider whether the record facts supporting EPA action are “adequately adduced and rationally applied.” Note, Judicial Review of the Facts in Informal Rulemaking, 84 Yale L.J. 1750, 1764. The grounds upon which the agen*cy acted must be clearly disclosed in, and sustained by, the record. The agency must make plain its course of inquiry, its analysis, and its reasoning. See duPont II, at p. 1026 and. cases there cited. After the fact rationalization by counsel in brief and argument does not cure noncompliance by the agency with the stated principles. Ibid, and Hooker Chemicals, at pp. 633-634. The court may not substitute its judgment for that of the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. If the agency’s construction of the controlling statute is “sufficiently reasonable”, it should be accepted by the reviewing court. Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75, 95 S.Ct. 1470, 43 L.Ed.2d 731. III. VALIDITY AND EFFECT OF REGULATIONS The Refineries say that EPA may not impose effluent limitations on existing sources by regulation. Their position is that effluent limitations on existing sources may be imposed only by the permit issuer. The predicate for the argument is that § 304(b) specifically provides that EPA shall publish “regulations, providing guidelines for effluent limitations says nothing about regulations.” The problem has been considered by several circuits. The Eighth Circuit has held, CPC, 515 F.2d at 1037, that EPA may not promulgate regulations establishing effluent limitations for existing sources. All other circuits considering the problem have held to the contrary. See Second Circuit, Hooker Chemicals, at p. 628; Third Circuit, Steel Institute, 526 F.2d at 1040-1042; Fourth Circuit, du Pont II, at pp. 1026-1027; Seventh Circuit, Meat Institute, 526 F.2d at 449-452; and D.C. Circuit, Frozen Food Institute, at pp. 127-129. All of the above cases, except duPont II, considered the problem in connection with determination of jurisdiction of the court of appeals. Section 509(b), which provides for judicial review of agency action, does not include action taken under § 304, Except for CPC, the courts rejected the argument that § 301 does not authorize the promulgation of effluent limitations by regulation and, hence, § 509(b) does not permit review in the court of appeals. Our situation is the same as that presented in duPont II. Jurisdiction had been decided and, in the exercise of that jurisdiction, we must determine the authority of EPA to promulgate the regulations. The Administrator did not meet the one-year requirement for the publishing of regulations “providing guidelines for effluent limitations.” § 304(b). The enormity of the task precluded compliance. After the imposition of a court mandated timetable, NRDC, 510 F.2d at 710-714, he published “effluent limitations guidelines”, and in so doing said that the action was taken under both § 301 and § 304, along with other sections. API I, 526 F.2d at 1345. Nothing in the Act forbids the combination of § 301 effluent limitations with § 304 guidelines. At the moment our concern is with authority to promulgate. Section 501(a) authorizes the Administrator “to prescribe such regulations as are necessary to carry out his functions under this Act.” His functions are “to administer this Act.” § 101(d). The attainment of the congressional intent to protect and preserve water purity comes through control of pollutant discharge. Section 301(e) refers to the establishment of effluent limitations but does not say who does the establishing. Section 502(11) defines effluent limitations as “any restriction established by a State or the Administrator.” Subsections 402(a)(1) and (b)(1) say that permits shall comply with §§ 301, 306, and other sections not including § 304. The permit issuer can be either EPA or a conforming state. The division of authority does not determine the authority of EPA to promulgate the regulations. The effect of the regulations presents a separate question. For the reasons stated in du Pont II, at 1026-1027, the promulgation of the limitations was a reasonable exercise of a congressionally delegated power. The action is reasonable and we accept it. IV. EFFLUENT LIMITATIONS The basic dispute between the Refineries and EPA is whether the regulations are § 301 effluent limitations or § 304 guidelines. EPA contends that the regulations are uniformly applicable throughout the nation and, with some exceptions, must be mechanically cranked into each permit by the issuer. The Refineries insist that the regulations are guidelines for the information and consideration of, but not binding on, the permit issuer. In essence, the conflict concerns national uniformity versus state power and responsibility. The Act is ambivalent. Section 101(a) refers to the “integrity of the Nation’s waters,” “the national goal,” and “the national policy.” Section 101(b) declares the policy of Congress “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” The legislative history confuses, rather than clarifies, the issue. In Palmer v. Massachusetts, 308 U.S. 79, 84, 60 S.Ct. 34, 36, 84 L.Ed. 93, the Court said that: the “absorption of state authority is a delicate exercise of legislative policy in achieving a wise accommodation between the needs of central control and the lively maintenance of local institutions.” (Footnote omitted). The definition of the roles of each government is essentially a matter for Congress, not for the courts. The Act is ineffective unless somebody fixes effluent limitations. The Administrator has done so and we have upheld his authority. If the limitations must be applied automatically to each permit application, the Act destroys rather than preserves the rights of the states which § 101(b) says that Congress protects. If each state may go its own way, the national policy declared by § 101(a) is inhibited. Some accommodation is necessary. We can do no more than the Fourth Circuit did in duPont II. It said that the EPA limitations are presumptively applicable and controlling unless rebutted by a permit applicant. At 1028. The burden is* thus placed on an applicant to convince the permit issuer that the general limitations do not apply to his particular situation. As said by the Fourth Circuit, Ibid, at 1028, “The balance of general rule and narrow exceptions assures all possible uniformity without sacrifice of the flexibility needed to adjust for disparate plants in dissimilar circumstances.” The Refineries insist that the permit issuer must consider the factors stated in § 304(b)(1)(B) for the 1977 step and in (b)(2)(B) for the 1983 step and exercise his discretion in applying them. We are concerned with rule-making, not with adjudication. Our holding is that the Administrator had authority to promulgate the limitations for existing sources and that the effect of the regulations so promulgated is not contrary to the Act. In particular instances, modification or variation may be necessary. If that problem arises, the issues may be determined by judicial review on the basis of actual facts under § 509(b)(1)(F). V. SINGLE NUMBERS The regulations impose effluent limitations in terms of single numbers rather than in a range of numbers. The Refineries point out that § 304(b) requires EPA to publish “regulations, providing guidelines for effluent limitations.” The use of “guidelines” is said to intend a range, not a fixed number. The Refineries emphasize the use of the word “amounts” in the § 304(b)(1)(A) provision that the regulations shall “identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable * * *“Amounts” refers to pollutants. When “amounts” are determined, EPA then fixes the “degree” of effluent reduction attainable. “Degree” may be either a “range” or a single number. The imprecise wording of § 304(b)(1)(A) and (B) makes difficult the ascertainment of congressional intent. Congress does not use the word “range” or any equivalent. The Senate Committee Report, Leg.Hist. 1468, says that Congress “expects” EPA “to define a range of discharge levels,” and again, Ibid, that EPA “should establish the range of best practicable levels.” In the face of the statutory language, the statements in the Senate Report are mystifying. Three circuits have considered the problem. In the Steel Institute case, 526 F.2d 1027, the Third Circuit treated the effluent limitations as establishing a ceiling, fixing the maximum permissible amount of pollutant discharge. Ibid, at 1044-1045. EPA determines the base by consideration of “the numerous differences in processes and capabilities of point sources.” (Footnote omitted). Ibid, at 1045. The base is the minimum degree of effluent control permissible and the ceiling is the maximum discharge permissible. Ibid. Thus the § 304 “guidelines are intended to provide precise guidance to the permit-issuing authorities in establishing a permissible level of discharge that is more stringent than the ceiling.” Ibid. Taken literally, the Third Circuit opinion may mean that in issuing a permit a state may not exercise the option inherent in § 510 of adopting a limitation more stringent than the base which EPA has fixed. The Second Circuit rejected the argument that the regulations are invalid because EPA failed to establish permissible ranges of discharges and instead promulgated single number maximum discharge levels. The court said, at p. 630: “[W]e * * * believe that whenever Congress spoke of ‘ranges’ in the debates over the Act, it meant only the spectrum comprised of varying discharge levels on a subcategorical, rather than individual, basis, (citation omitted) Although variances are conceivable at the permit-granting stage (citation omitted) Congress intended that the regulations establish a single discharge level for a given subeategory. This is implicit in the Congressional choice of the superlative form in the statutory language requiring achievement of the degree of effluent reduction attainable by application of ‘best’ technology.” In duPont II, the Fourth Circuit disagreed with the Third. In so doing, it pointed out, at pp. 1029-1030, that nothing in the Act prohibits EPA from using single numbers in establishing effluent limitations. The use of a single number permits any discharge from zero up to the allowed amount. If a range is required, a zero discharge provision violates the Act which has as its objective the elimination of all pollutant discharges by 1985. Section 101(a)(1). The court said “The expertise of the Administrator is persuasive as to whether the limitations be fixed in single numbers or ranges.” Ibid, at 1029. It upheld the use of single numbers in the inorganic chemicals subcategories which were before it. We agree with the Second and Fourth Circuits. The promulgation of the regulations was a form of rule-making. Rules are necessarily general. The parties confront us with hypothetical situations. We do not know how the rules will work out in practice. We reject the EPA claim that the regulations must be mechanically cranked into every permit which may be issued. We also reject the claim of the Refineries that the permit issuer has unbridled discretion in the application of the regulations to any permit application. The correct answer lies somewhere between these extremes. The intent of Congress was to clean up the Nation’s waters. This cannot be done overnight. On the road to attainment of the no discharge objective some flexibility is needed. The extent of that flexibility may be determined by Congress through precise amendments to the Act or by the courts in the decision of cases presenting facts rather than hypotheses. For the purpose of general rule-making, we accept the use of single numbers in the effluent limitations under consideration. VI. VARIANCE The Refineries attack the 1977 step variance provisions found at 40 C.F.R. §§ 419.12, 419.22, 419.32, 419.42, and 419.52. These provisions are substantially identical to similar provisions found in each of the categories and subcategories covered by EPA regulations under the Act. For the 1983 step the statute provides for variances. See § 301(c). It does not do so for the 1977 step. Section 419.12 is typical of the 1977 variance provisions with which we are concerned. It says in its first sentence that EPA in establishing limitations took into consideration specified factors, including “age and size of plant, raw materials, * * treatment technology available, energy requirements and costs.” The second sentence recognizes the possibility that “data which would affect these limitations have not been available” and that as a result, the limitations should be adjusted for certain plants in the industry. The third sentence says that a discharger may submit evidence: “[t]hat factors relating to the equipment or facilities involved, the process applied, or other such factors related to such dis-charger are fundamentally different from the factors considered in the establishment of the guidelines.” The fourth sentence says that the permit issuer “will make a written finding that such factors are or are not fundamentally different.” Again we have an area of uncertainty. There is not only a conflict between circuits but also a conflict within one circuit. In NRDC v. EPA, the Second Circuit held, at p. 647, that the promulgation of the variance clauses for the 1977 step is “a valid exercise of the EPA’s rule-making authority pursuant to § 501(a).” The court also said, Ibid, that the interpretation of the variance clauses “should await the disclosure and development of concrete factual controversies involving a single point source and its permit.” In the Steel Institute case the Third Circuit said, 526 F.2d at 1046: “We also note that the variance procedure provides for less flexibility than we believe Congress contemplated, since it permits deviations from otherwise rigid and unitary limitations only where the circumstances of the particular plant are ‘fundamentally different’ than those from which the effluent limitation was derived.” The Third Circuit perhaps overlooked the fact that Congress did not provide any variance procedure for the 1977 step. In duPont II the Fourth Circuit declined to determine the validity of the variance provisions, saying that the administration of those provisions is presently speculative and will arise when a claim for a variance is made in a permit application. In Appalachian Power Company v. Train, the Fourth Circuit, with one judge dissenting, set aside the 1977 variance provisions applicable to a subcategory of the Steam Electric Power Generating Point Source Category, 40 C.F.R. § 423.12(a). It interpreted the clause to mean that “only technical and engineering factors, exclusive of cost, may be considered in granting or denying a variance.” Slip op. at p. 17 (footnote omitted). In so doing the court relied on a memorandum from the EPA Assistant Administrator for Enforcement and General Counsel to all regional administrators., The court said that this administrative interpretation distinguished the Appalachian Power case from duPont II. The court further held that the 1977 limitations “were not intended to be applied any less flexibly” than the 1983 limitations. Ibid. p. 18. In so acting the court did not have before it any specific claim, grant, or denial of a variance. It was concerned with a general rule which was considered on a hypothetical basis and had no regard for an existing and specific fact situation. The Refineries do not make clear their reasons for attacking the regulatory variance regulations for the 1977 step. The statute says nothing about variances for that step. We agree with the Second Circuit that the 1977 variance provisions are a valid exercise of EPA’s rule-making authority under § 501(a). We also agree with duPont II that variances are appropriate to the regulatory process, at p. 1028, and that the 1977 BPT technology may not be construed more stringently than the 1983 BAT technology. We reject the Fourth Circuit holding that the 1977 variance provisions are “unduly restrictive” and hence void. Appalachian Power, slip op. at p. 17. Such a holding forgets that Congress did not provide for any 1977 variance. Without record support, the Refineries assert that no variance has been granted. Even if true, the statement proves nothing. Any permit applicant dissatisfied with action on a variance claim may petition for review under § 509(b)(1)(F). From the standpoint of general rule-making, the regulatory variance provisions for the 1977 phase are reasonable. Their interpretation and application must await action on a variance claim asserting specific facts. We will not speculate what the result may be. VII. 1977 STEP (1) In-Plant Process Changes. Important to determination of effluent limitations are flow rates and concentration of discharge components. In ar5 riving at its regulations EPA considered in-plant flow modifications. Refineries argue that the BPT (1977 step) technologies can only apply to end-of-pipe treatment systems and that EPA cannot consider and require in-plant process changes. The Act uses different language in its provisions for the 1977 and 1983 steps. In § 304(b)(1)(A) the reference is to “control technology” whereas in § 304(b)(2)(A) the reference is to “control measures and practices” including process innovations. Both sections specify “the process employed” as one of the factors to be taken into consideration. §§ 304(b)(1)(B) and (b)(2)(B). Two circuits have wrestled with the problem. In duPont II, at pp. 1030-1031 the Fourth Circuit noted the statutory language and rejected the argument that for the 1977 step EPA was confined to end-of-pipe treatment systems. In FMC, at p. 981, the Fourth Circuit said that EPA was to rely “principally” on end-of-pipe technology and that “In-process control measures may be required, however, if they are considered normal practice within the industry.” Ibid, (footnote omitted). In Hooker Chemicals, the Second Circuit held, June 14, 1976, memo modifying original opinion, that “no ‘in process’ changes can be mandated for 1977 unless they may be considered normal practices within the industry.” At p. 637. Refineries make much of the statement in the House Report, Leg.Hist. 788, that “control technology * * * means the treatment facilities at the end of a manufacturing * * * process rather than * * * within the manufacturing process itself.” We decline to accept this statement of one chamber of Congress. If both chambers had agreed, the language of the statute would have been changed. Indeed, the Refineries concede, see reply brief, p. 28 n. 28, and R. 7326, that pre-treatment processes may be required if they are normal practice within the industry. EPA’s designation of in-plant technology for the 1977 step was based on “control practices widely used within the petroleum refining industry.” Dev.Doc. 165 and R. 6065. This conclusion is supported by record evidence. Ibid, at 70,95 and R. 5970, 5995. We find no record support for the claim that more than half of the Nation’s refineries will have to make substantial and widespread internal reconstruction to comply with the regulations. EPA has relied principally on end-of-pipe technology in its regulations for the 1977 step. Whatever in-plant modifications may be necessary are reasonably within normal industry practice. EPA action is within the statutory requirements. (2) Exemplary Plants. The statutory mandate for 1977 is “best practicable control technology currently available.” § 301(b)(1)(A). Refineries say that EPA must look to the average of the industry and EPA says that it may look to the average of the best technology used in the industry. With varying language the circuits agree that EPA may base its regulations on the results from the plants using the best technology. See Hooker Chemicals, at p. 632; Steel Institute, 526 F.2d at 1057, duPont II, at p. 1031; Meat Institute, 526 F.2d at 453; and Frozen Food Institute, at p. 132. We agree. There is no reason for us to enlarge what has been said in the cited decisions. It is conceded that at least 12 of the refineries are already in compliance with the 1977 regulations. See petitioners Tech. Brief 37, n. 23, and Reply Brief 24, n. 22. The EPA action was proper. (3) Granular Media Filtration. Refineries contest the 1977 limitations for Total Suspended Solids (TSS) and Oil and Grease (O&G) on the basis that EPA has required granular media filtration and that such technology is neither practicable nor currently available. Granular Media Filtration is only one of the control practices widely and currently used within the petroleum refining industry. Dev.Doc. 165 and R. 6065. The regulations do not require the use of granular media filtration. Any one of a number of technologies or combination of technologies may be used. Ibid. Refineries do not contest that many plants are already meeting the O&G limitations. EPA based its TSS limitations on three exemplary plants. These met the TSS limitations during 90%, 80%, and 70% of the monthly samples during 1973 and 1974. During its reconsideration of the regulations, EPA concluded that any failures to meet the limitations were due to improperly operated filters or use of filters beyond design capacity. Refineries objections to EPA’s use of data obtained after promulgation is not well taken. The new data was not the basis for the regulations. It serves to establish that the EPA technologies are both practicable and currently available. After promulgation, events indicating the truth or falsity of agency predictions should not be ignored. Amoco Oil Co. v. Environmental Protection Agency, 163 U.S.App.D.C. 162, 501 F.2d 722, 729 n. 10. This is not a case like duPont II where new, non-record evidence was rejected as the sole basis for agency action, at p. 1037. In the instant case the record made before promulgation sustains the regulations. The new data is pertinent to show the validity of the EPA actions. The 1977 TSS and O&G limitations are upheld. (4) Net or Gross Limitations. Net limitations apply only to the excess of pollutants discharged over the pollutants, if any, in the intake water. Gross limitations apply to the total amount of pollutants discharged regardless of pollutants in the intake water. Refineries say that the limitations must be net. In Steel Institute, the Third Circuit recognized the problem and said that “an adjustment would seem required by due process” because otherwise a plant would be penalized “because of circumstances beyond its control.” 526 F.2d at 1056. EPA has agreed that net limitations are allowable where a source discharges to the same body of water from which it draws its water. In 1975 EPA added a new regulation, § 125.28, to its general regulations applicable to the administration of the Act. 40 Fed.Reg. 29850. This new regulation allows adjustment of the limitations “to reflect credit for pollutants in the applicant’s water supply if the source of the applicant’s water supply is the same body of water into which the discharge is made”, if certain requirements are met. § 125.28(a). EPA concedes that its concentrations are based on gross limitations. The Refineries say that the concession requires a remand. We do not agree. Section 125.28(a)(2) allows a permit applicant to demonstrate that pollutants in the intake water will not be removed by treatment systems designed to reduce process wastewater pollutants to the levels required by the applicable limitations. In an appropriate situation, gross will be reduced to net and a plant will not be penalized for something which it cannot prevent. See discussion in Appalachian Power, slip op. 77-80. From the standpoint of general rule-making the amendment is satisfactory. Its application may be determined in a controversy arising out of specific facts. (5) Storm Water Runoff. During periods of rainfall, a refinery must treat not only wastewater flow from the refinery but also storm water runoff. The pertinent regulations, 40 C.F.R. §§ 419.12(c)(1) and 419.15(c)(1) provide: “The allocation allowed for storm, runoff flow * * * shall be based solely on that storm flow (process area runoff) which is treated in the main treatment system. All additional storm runoff (from tank fields and non-process areas), that has been segregated from the main waste stream for discharge, shall not exceed * * * [stated limitations].” These regulations are made applicable to all subparts in Part 419. EPA furnishes no record reference to support this regulation. It relies on after-the-fact rationalization in its brief but such rationalization is no substitute for agency action not sustained by the record. duPont II, at pp. 1026, 1035, 1039. EPA says that “ ‘process area runoff’ is intended to encompass all ‘process waste water’ pollutants as defined in 40 C.F.R. § 401.11(q).” EPA Br. at 110. That regulation has general applicability to Subchapter N which includes the regulations for the Petroleum Refining Industry. In duPont II, at pp. 1032-1033, the Fourth Circuit noted that EPA was preparing an amendment to § 401.11(q) and set that regulation aside. We are not told what, if anything, EPA has done to rewrite the regulation. The statement in the EPA brief of how the storm runoff regulation is intended to work is interesting but unsatisfactory. We have no definition of the term “storm runoff.” The EPA brief says, p. Ill, that “all storm runoff is to be collected and monitored.” Taken literally this means that the refineries will have to collect diffused surface runoff in channels and discharge it through a discrete source. There is no statutory or record support for such requirement. Sections 419.12(e)(1), 419.15(c)(1), and subsequent sections based thereon are set aside and remanded for reconsideration. (6) Variability Factors. Even in the best treatment systems, changes occur in ability to treat wastes. Sixteen factors which cause variability are listed in 40 Fed.Reg. 21941. EPA defines, B.R. at 113, the daily variability factor “as the 99th percentile probability of occurrence value divided by the mean.” The result is “the multiplier by which the long-term achievable values must be multiplied in order to derive the value not permitted to be exceeded.” Ibid. For the 30 day variability factor the 98th percentile is used. The application of the formula is shown at § 419.42(b)(3). The briefs on variability disclose much rhetoric and a turmoil of numbers. We disregard the first and struggle with the second. Refineries claim that the use of the 99 and 98 percentiles is improper. They attack EPA’s statistical methodology. They say that EPA used “an insufficient and geographically biased data base”, API Tech. Br. at 94, and disregarded “differences among refinery subcategories.” Ibid, at 99. Statistical methodology is for the experts. The EPA statement of its procedures and of the bases therefor found at 40 Fed.Reg. 21941-21942 convinces us that the EPA variability factors have substantial record support. In promulgating the final regulations EPA analyzed data from 10 refineries with a geographical distribution which included Virginia, Texas and California. On petition for reconsideration EPA rechecked the variability data from seven refineries some of which are located in cold climates, e. g., the Amoco refinery in Mandan, North Dakota. With regard to the differences among the five subcategories, the refineries furnish us with no record data showing that variability changes from one subcategory to another. Refineries urge that “excursions” should be permitted. Ah “excursion” is a period when the required concentrations may be exceeded. Because EPA selected the 99th percentile, the refineries say that they must be afforded at least four days a year, 1% of 365, when they may make excess discharges without fear of penalty. The reasoning does not impress us. There is always a theoretical chance that a plant achieving the limitations on a long-term basis will exceed the monthly and daily limits. In FMC, the Fourth Circuit said that: “Plant owners should not be subjected to sanctions when they are operating a proper treatment facility.” 539 at p. 986. The court went on to say that “appropriate excursion provisions” should be incorporated in the regulations. Ibid. The whole problem of variability factors presents a practical effort to accommodate for variations in plant operations. As technology for control of pollutant discharges improves, the variations should lessen. The choice of statistical methods lies within the sound discretion of EPA. EPA has acted properly and reasonably in establishing the variability factors before us. The Fourth Circuit was considering a factual situation different from that before us. On the present record we are unconvinced that the refineries should be granted any specific number of days during a year when they may make excess discharges. The temptation to store pollutants for future discharge would be enticing. The permissible máximums for any one day are about twice the average daily values for a month. See tables found in § 419.12(a) and (b). The spread permits considerable flexibility. (7) Petrochemical Plants. EPA divided the petroleum refining industry into five subcategories. Two of these, Subparts C and E, relate to refineries which engage in petrochemical operations. Refineries argue that the stringent regulations imposed on Subparts C and E place the plants subject thereto at a competitive disadvantage with the organic chemicals industry and with refineries which do not conduct petrochemical operations. The challenge based on the organic chemical industry has a hollow ring. The Fourth Circuit has set aside the effluent limitations applicable to the organic chemical industry. See Union Carbide Corp. v. Train, 4 Cir., Nos. 74-1459 etc., order of February 10, 1976. We do not know what will be the regulations applicable to that industry. Refineries’ reliance on Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467, and Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226, is misplaced. Industrial Union was involved with the Occupational Safety and Health Act. With reference to industrial standards the court said, 499 F.2d at 480: “Separate standards for different industries would not appear to- create opportunities for employers in one industry to challenge their standards on the grounds that standards for another industry were less demanding.” Portland Cement was concerned with the Clean Air Act. The court said, 486 F.2d at 389, that “the Administrator is not required to present affirmative justifications for different standards in different industries.” We find nothing in the Act or its legislative history which requires EPA to consider the competitive effect of its regulations. EPA did consider the comments relative to petrochemical operations, 40 Fed.Reg. 21948-21949, and said: “Since the regulations are based upon actual performance by refineries in each subcategory, it would be absurd to attempt to modify them on the basis of regulations designed for other industries.” In this attack on the regulations pertaining to petrochemical operations, the refineries do not contest the methodology, the data base, or the achievability of the limitations for the two subcategories in question. EPA has used the same general approach in setting the limitations for all the categories in the petroleum industry. The record sustains the pertinent EPA action. The regulations applicable to petrochemical operations, 40 C.F.R. §§ 419.32 and 419.52 are upheld. (8) Costs. Section 304(b)(1)(B) requires that the EPA regulations for the 1977 step shall specify BPT factors including “consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” Refineries say that EPA did not comply with this statutory requirement. The Refineries’ costs of compliance with the 1977 regulations will be substantial and will be reflected in increased passed-on-costs to the consuming public. The need for, and attainment of, societal benefits are essentially issues for congressional determination. Congress has delegated to EPA the task of giving “consideration” to “total cost” in relation to “effluent reduction benefits.” The judicial responsibility is to determine whether EPA has complied with the mandate. The Senate committee recognized that “there must be a reasonable relationship between costs and benefits if there is to be an effective and workable program.” Leg. Hist. 1465. The same Committee said that “no mathematical balance can be achieved in considering relative costs and benefits nor would any precise formula be desirable.” Ibid, at 1466. In duPont II the Fourth Circuit rejected the argument that benefits “must be quantified in monetary terms”, and said: “Nothing in the Act requires this action.” At p. 1030. We agree. The judicial problem is whether EPA adequately considered costs and benefits. EPA estimated the capital investment costs to be 1,112 million dollars for existing sources. The Refineries estimate, which includes “Expansions of Existing Refineries” is 1,558 million dollars. The annual costs for existing refineries are estimated to be 449 million dollars. The Refineries’ estimate, which also includes expansion costs, is 544 million dollars. In the area of capital costs, the Refineries put the expansion costs at 490 million dollars. Subtraction of this amount from the Refineries’ total of 1,558 million produces 1,068 million, a figure slightly below that of EPA. Refineries object that EPA used stale cost figures. Cost increases are inherent during a period of inflation. EPA points out that the important consideration is not the level of abatement costs but rather the resulting impact on the industry. EPA’s “Economic Analysis of Proposed Effluent Guidelines, Petroleum Refining Industry,” R. 5788-5889, considers the problem both from the standpoint of world markets and of United States markets. ■ In doing so EPA discusses prices, profitability, production effects, employment effects, industry growth, and balance of trade. Although the dollar amount of the abatement costs may be high, one commentator stated that the capital requirements of the regulations amount to 3.3% of the total capital requirements of the industry. R. 5545. Refineries urge that EPA must make a cost-benefit analysis. EPA says that its cost-effectiveness analysis satisfies the statute. Labels are neither important nor determinative. EPA said that costs depend “essentially” on waste water flow rate and prepared a table comparing costs with flow rates. EPA computed costs for several combinations of refinery size, waste water discharge rate, and extrapolated costs of in-plant modifications to reduce waste water flow. The selection of the point of diminishing returns is for agency determination. The technical objections of the Refineries do not impress us. The record shows that the effluent limitations imposed by the regulations will reduce the pollutants discharged into the Nation’s waters. The value of the resulting benefits is not capable of present-day determination. We are convinced that EPA made a serious, careful, and comprehensive study of the costs which compliance will impose on the industry. If Congress believes that the cost is too high, it can amend the Act. All we say is that EPA has complied with the statutory mandate. VIII. 1983 STEP For the 1983 BAT technology EPA proposed an end-of-pipe treatment system “based on the addition of activated carbon adsorption in fixed bed columns, to the treatment system” proposed as 1977 BPT technology. Dev.Doc. 174, R. 6074. In so doing EPA noted that its limitations were “based upon pilot plant data” and that revision may be required “as actual performance data becomes available.” Ibid. The Refineries contend that the carbon adsorption technology is not' available or economically achievable. We agree. EPA concedes in its brief, p. 138, that: “As for carbon adsorption, the Agency readily acknowledges that it needs further development before it will show the high degree of effectiveness in large-scale operation that it has already shown in pilot plant demonstrations.” In its response to comments that carbon adsorption had not been demonstrated as a proper base for 1983 limitations, EPA relied on named technical articles and on “The BP, Marcus Hook, 1974, pilot plant study of Filtration and Activated Carbon.” 40 Fed. Reg. 21948-21949, R. 17614. EPA concedes, brief p. 143, that “the BP Marcus Hook system does not meet the BAT limitations.” EPA now says that the BP data was relied on only for O&G and that these limitations have been shown achievable by later data from a non-record refinery not using carbon adsorption. Also EPA now claims that the TSS limitations are based on “municipal wastewater experience.” Brief at 143. The record reference cited in the brief is an unidentified, illegible, handwritten sheet which means nothing to us. Examination of EPA’s record citations and appraisal of its shifting and inconsistent rationales make it difficult for us to discern upon what, if any, basis EPA promulgated the 1983 limitations. The failure of the BP plant to achieve the limitations when placed in full-scale operation may not be ignored. We can ascertain no reasonable basis for the 1983 limitations. See FMC, at pp. 981-982, n. 16; cf. Tanners’ Council, at p. 1195. We reject the 1983 regulations because of their reliance on the carbon adsorption technology. In the circumstances there is no need to consider the other attacks of the Refineries on those regulations. The questions raised, particularly those relating to costs, should be considered by EPA on remand. The 1983 regulations, 40 C.F.R. §§ 419.13, 419.23, 419.33, 419.43, and 419.53, are set aside. IX. NEW SOURCES EPA established standards fixing the BADT technology for new sources by adding the 1983 flow limitations to the control technology applicable to the 1977 BPT step. The attack of the Refineries has three bases, (1) invalidity of the 1977 limitations, (2) unattainability of the 1983 limitations by existing sources, and (3) the use of stale cost figures. We have upheld the 1977 limitations as supported by the record. Hence, the fact that the new source limitations are derivative is no ground for attack. Cf. Tanners’ Council, at 1194. Because of our disposition of the 1983 limitations, we did not reach the issue of whether the flow reductions are attainable. Even if the 1983 flow reductions are unattainable by existing refineries, it does not follow that new plants could not be designed so as to incorporate the means of attaining the lower flow rates. There is no record support for the claim that the flow rates for new sources are unattainable. The matter of costs has been discussed in connection with the 1977 step, see Part VII(8) of this opinion, and need not be considered further. The regulations pertaining to new source standards, 40 C.P.R. §§ 419.15, 419.25, 419.35, 419.45, and 419.55 are upheld. X. DISPOSITION The following regulations, all contained in 40 C.F.R., are severally set aside and remanded for reconsideration: Storm water runoff (§§ 419.12(c)(1) and 419.15(c)(1)) and with regard to storm water runoff only: §§ 419.22(c)(1), 419.25(c)(1), 419.32(c)(1), 419.35(c)(1), 419.42(c)(1), 419.45(c)(1), 419.-52(c)(1), and 419.55(e)(1) and 1983 step (§§ 419.13, 419.23, 419.33, 419.43, and 419.-53). . The parallel U.S. Code citations for the most frequently mentioned sections are: Section 101 — 33 U.S.C. § 1251, Section 301 — 33 U.S.C. § 1311, Section 304 — 33 U.S.C. § 1314, Section 306 — 33 U.S.C. § 1316, Section 402 — 33 U.S.C. § 1342, Section 501 — 33 U.S.C. § 1361, Section 502 — 33 U.S.C. § 1362, Section 509 — 33 U.S.C. § 1369.

United States v. United States Steel Corp.

CUMMINGS, Circuit Judge. This criminal prosecution was based upon a 2-count information alleging violations of Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 407 and 411). Count I alleged that defendant discharged refuse matter from a drainpipe into the east branch of the Grand Calumet River on October 11, 1967. Count II alleged that the defendant deposited refuse matter from another drainpipe into the same river on the same date. The refuse matter described in Count I consisted of a “red-brown particulate sediment” and in Count II, of an “oily substance.” After a jury verdict of guilty, the district court assessed the maximum fine of $2,500 on each count, and defendant has appealed from the judgment imposing those fines. The district court’s memorandum opinion is reported at 328 F.Supp. 354 (N.D.Ind.1970). In this Court defendant admits the discharges in question. In support of reversal it urges the non-applicability of the 1899 Act to the discharges because they did not affect the navigability of the receiving stream and because they occurred after enactment of The Water Quality Act of 1965, the contrariety of its conviction to Congressional intent and to due process in the absence of a regulatory permit program, and the er-roneousness of certain of the trial court’s evidentiary rulings. We affirm. Applicability of Section IS to Non-Navigation-Threatening Refuse Discharges Defendant’s principal argument is that Section 13 of the Rivers and Harbors Act of 1899 does not cover these discharges of effluent waste into the Grand Calumet River on the ground that the statute requires an effect on navigation. At the trial, the Government made no attempt to prove that these discharges impeded or obstructed navigation or had a tendency to do so. It contended, as it contends here, that the first clause of Section 13 applies to the present discharges regardless of an effect on navigation. The statute in question has lately become known as the Refuse Act of 1899. Section 13 thereof provides: “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed : Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provide further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is -so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” (33 U.S. C. § 407) The first offense created by this statute, the offense for which defendant was prosecuted, consists in discharging into navigable waters “any refuse matter of any kind or description whatever.” The sole exception to the refuse matter coverage is for municipal sewage. The second portion of the statute addresses the depositing of “material of any kind in any place on the bank of any navigable water * * * where the same shall be liable to be washed into such navigable water * * *.” Such depositing, however, is an offense only if thereby “navigation shall or may be impeded or obstructed.” Although defendant contends Congress intended that this navigational effect limitation also apply to the refuse discharge prohibition of the first portion of the statute, we do not understand it to contend that the adverbial phrase embodying that limitation can properly be read to modify the definition of the first offense. Grammatically it cannot. Section 13 contains two provisos, only the second of which is pertinent here. That proviso allows “the deposit of any material above mentioned in navigable waters” if upon prior application to him the Secretary of the Army grants a permit therefor. The criterion for granting the permit is the Chief of Engineers’ judgment that “anchorage and navigation will not be injured” by the deposit. The final proviso makes sense only if it is interpreted to apply to both the first and the second offenses enunciated by the statute. There seems to be no question but that it applies to the second portion. Since the first clause is the one referring explicitly to a “deposit * * * into any navigable water,” the proviso fits it most comfortably. If it did not apply to the first clause, no discharge of any refuse matter could ever avoid criminality. On its face, therefore, the first part of Section 13 proscribes the discharge of “any refuse matter of any kind or description whatever” into navigable waters without a permit. The words of the statute do not impose any limitation of an effect on navigation or tendency to affect navigation on the refuse matter covered. Defendant’s argument for reading in this qualification relies on legislative history as indicative of a Congressional concern only with discharges “which tend to impair navigability.” We think the statute is plain on its face, but since words are necessarily inexact and ambiguity is a relative concept, we now turn to the legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be. Although statutes dealing with discharges in the navigable waters of New York Harbor were enacted in 1886 and 1888, the first statute of general applicability was enacted in 1890. Section 6 of this statute made it unlawful to empty either from a vessel or from shore “any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river or navigable waters of the United States which shall tend to impede or obstruct navigation * * * ” (emphasis supplied). It also prohibited the deposit of such materials on the bank of any navigable waters where it was liable to be washed into the waters and “whereby navigation shall or may be impeded or obstructed.” A proviso excepted deposits under a permit from the Secretary of War designating a place where the deposit would not obstruct navigation. 26 Stat. 453. In 1894 Congress again legislated on the subject of discharges into navigable waters. Section 6 of the Rivers and Harbors Act of that year made it unlawful to discharge “by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state in the waters of any harbor or river of the United States * * * elsewhere than in the limits defined and permitted by the Secretary of War.” 28 Stat. 363. The striking difference between the 1890 and 1894 Acts is the absence of any navigation-threatening qualification in the latter. Moreover, Section 6 of the 1894 Act has a shortened list of enumerated substances and introduced the exception for municipal sewage. Defendant argues that the absence of any explicit qualification in the 1894 Act relating to navigational impairment does not mean that Congress intended to abandon that qualification. It seems true, as defendant suggests, that the 1894 Act was precipitated by the Corps of Engineers’ complaint that the 1890 Act was difficult to enforce because it contained no provision for an in rem proceeding against a vessel or for liability of the master or engineer; the 1890 Act applied only to persons or corporations owning the vessel. In response, Congress drew on Sections 2 and 4 of the 1888 New York Harbor Act in enacting Sections 7 and 8 of the 1894 Act to supply the lacking features. However, it also borrowed from the New York Harbor Act to enact the substantive provision of the 1894 Act, Section 6, quoted in part above. It has been suggested that this was “redundant” because the Corps only sought additional liability provisions and the 1890 Act had already delineated the substantive offense. Moreover, since the 1894 Act was appended to the annual river and harbor appropriation bill, it • is suggested that there was a limited opportunity for debate and Congress was assured that the bill only prevented discharges which would affect navigation. Although this is all very plausible, it is not a truly satisfactory basis for assuming Congressional oversight of the differences between the 1890 and 1894 statutes. Most probably Congress was primarily concerned with protecting the navigability of navigable waterways, but that is not to say it was exclusively so concerned. As the Supreme Court has said, “ * * * the ‘serious injury’ to our watercourses * * * sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution * * *." United States v. Standard Oil Co., 384 U.S. 224, 228-229, 86 S.Ct. 1427, 1429, 16 L.Ed.2d 492. But even if Congress was solely preoccupied with protecting navigability, that would not negate Congressional resolve to forbid the discharges of the listed and other foreign substances regardless of their apparent effect on navigation unless specially permitted. To say that Congress was concerned with protecting navigation is not determinative of the scope of the measures Congress took to effect that protection. In 1896 the Attorney General construed Section 6 of the 1894 Act “as an absolute prohibition” against the discharge of material which, although conceded to be covered by Section 6, would not have affected navigability. 21 Opinions of the Attorney General 305, 307. The “ore washings” involved, however, would have “destroy [ed] the fish, pollute [d] the water so as to destroy its usefulness for domestic purposes, and injure[d] the scenery along the stream.” Id. at 306. Although the Attorney General opined that the Secretary of War was required to issue a permit under these circumstances, he indicated no doubt about the proposition that a permit had to be applied for and that the Secretary’s judgment, rather than the discharger’s, about impairment of navigability was controlling. Also in 1896, Congress commissioned the Secretary of War to make a compilation of all laws enacted for the protection of navigable waterways and to submit to Congress therewith recommendations “as to revision, emendation, or enlargement of the said laws as, in his judgment, will be advantageous to the public * * *." 29 Stat. 234. The Secretary of War delegated the task to the Chief of Engineers, whose compilation and recommended draft were submitted to Congress. The compilation listed Sections 6 of both 1890 and 1894 Acts, and the recommended draft was an attempt to consolidate these Acts into one Section, which became Section 13 of the Rivers and Harbors Act of 1899. Section 13 eliminated the enumeration of substances present in both the 1890 and 1894 Acts, substituting for them and their catch-alls the phrase “any refuse matter of any kind or description whatever.” Moreover, as noted previously, the first portion of Section 13 was not modified by the navigation-threatening limitation appearing in the 1890 Act; only the second portion contains that modifier. The absence of the navigational effect limitation in the first portion of Section 13 is best explainable on the basis that Section 6 of the 1894 Act contained no such limitation. Even though the phrase “any refuse matter of any kind or description” must be construed in pari materia with the lists of substances found in the earlier Acts (see United States v. Standard Oil Co., supra at 228-229, 86 S.Ct. 1427), it does not follow that only refuse matter which tends to impede navigation is covered. The enumeration in the 1890 Act ends with the catch-all “or other waste of any kind.” If only materials with an inherent tendency to impede or obstruct navigation are involved, the modifier “whereby navigation shall or may be impeded or obstructed” is superfluous. The enumeration in the 1894 Act ends with the broader catch-all “or any other matter of any kind.” The use of “any other matter of any kind” militates against an overly strict ejusdem generis construction, but in any event, it is obvious that not every discharge of the enumerated substances will tend to affect navigation. For instance, the discharge of “acid” is prohibited, but not every acid will be capable of corroding wharves or ships’ hulls. Yet a discharge of any acid without prior approval of the Secretary of War would certainly seem to be squarely in the teeth of the statutory prohibition. Thus it is entirely consistent with defendant’s hypothesis that Congress was only concerned with navigational impairment to construe the scheme of the 1899 Act as prohibiting the discharge of any refuse matter of any kind or description unless the Secretary of the Army determined the matter could have no adverse navigational impact. Indeed, assuming defendant’s interpretation, this is a plausible construction because otherwise it would be up to the individual to determine whether his proposed discharge matter could have a tendency to obstruct navigation, and this is surely not a desirable feature if Congress was really intent on remedying the evil of navigational impairments. Much damage could be done by a discharger who considered his discharges harmless to navigation before they were discovered. Moreover, individual, private determination of the capability of refuse matter for affecting navigation is simply inconsistent with the comprehensive language used. This review of the legislative history of Section 13 of the 1899 Act does not persuade us that the statute means other than what it says. The discharge of any refuse matter, regardless of any apparent effect on navigation, is prohibited in the absence of a permit even if Congress thought at the time of enactment that permits would not or could not be withheld on the ground that the material discharged was merely a pollutant. Defendant also relies on the administrative interpretation of Section 13 as establishing that the officials charged with the administering of the Act did not believe that it applied to discharges which had no navigational effect. It asks us to “give great weight” to the administrative interpretation in determining the scope of the statute. In effect from 1965 through December 1968, the only regulation pertaining to Section 13 was 33 C.F.R. § 209.395 (1967). But that regulation recites the statutory proscription of deposits in navigable waters of “refuse matter of any kind or description whatever” other than sewage. Although it states that the jurisdiction of the Department of the Army “is limited and directed to such control as may be necessary to protect the public right of navigation” (emphasis supplied), it does not purport to construe Section 13 as allowing, without permission, discharges of refuse matter which the dis-charger has determined to have no tendency to affect navigation. It does not suggest that the Secretary of the Army’s determination of no navigational effect need not be interposed before any discharge of refuse matter is permissible. Furthermore, it states that the Department has directed “action” under Section 13 only “principally” against the discharge of those materials obstructive of or injurious to navigation. This regulation hardly amounts to an administrative interpretation that discharges such as defendant’s are ab initio outside the reach of the statute’s prohibition. The same is true of the 1968 amendment defendant relies on (33 C.F.R. § 209.-200(c)(2).) Moreover, in addition to the facial frailty of these regulations as support for defendant’s position, earlier court decisions had interpreted the first offense created by Section 13 to have no navigational effect limitation. La Merced, 84 F.2d 444 (9th Cir. 1936); United States v. Ballard Oil Co., 195 F.2d 369 (2d Cir. 1952); see also United States v. Republic Steel Corp., 362 U.S. 482, 490-491, 80 S.Ct. 884, 4 L.Ed.2d 903. Even if these regulations could be interpreted as defendant would like, administrative interpretation is entitled to little weight in the face of contrary judicial construction. In sum, we conclude that what defendant characterizes as “pure dicta” in United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492, was not ill-considered. There the Supreme Court stated that as used in Section 13 of the Refuse Act of 1899, “[t]he word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” We so hold in accord with our sister Circuits which have faced the same question. United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468, 471 (3rd Cir. 1972), certiorari granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662; United States v. Ballard Oil Co., 195 F.2d 369, 371 (2d Cir. 1951); La Merced, 84 F.2d 444, 446 (9th Cir. 1936). Accommodation of Refuse Act of 1899 and Amended Federal Water Pollution Control Act of 19k8 Defendant contends that the Refuse Act of 1899 and the Federal Water Pollution Control Act of 1948, as amended at the time of the discharges in question by The Water Quality Act of 1965, (particularly 33 U.S.C. §§ 1151 and 1160), must be accommodated. First it argues that together they mean “that the Corps of Engineers should continue to have the power to deal with the dumping of waste matter having the potential to affect navigation under § 407 [Section 13 of the 1899 Act], while the problem of water pollution generally is to be dealt with through resort to the Federal Water Pollution Control Act, as amended.” Alternatively defendant contends that those discharges of effluent industrial waste which do not violate the applicable Federal Water Quality Standards and Implementation Plan should be considered outside the purview of “refuse matter” in the 1899 Act. We do not see the necessity for any accommodation. The two statutes are not irreconcilable if the coverage of the Refuse Act of 1899 extends to discharges of pollutant refuse matter, as we have determined it does. Cf. Askew v. American Waterways Operators, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280. Had defendant secured a discharge permit, it could not have been in violation of the 1899 Act, and any pollution abatement recourse the Government would have had would only be under 33 U.S.C. § 1160. True, compliance with federal water quality standards developed under the amended Federal Water Pollution Control Act would not immunize defendant from prosecution for discharges without a permit under the 1899 Act. However, “ [i]t is crucial to note that beginning with the Water Pollution Control Act of 1948, Congress has on four separate occasions in the past 24 years specifically stated that section 407 of the Rivers and Harbors Act, banning ‘any refuse matter,’ was not affected by the subsequent legislation.” United States v. Pennsylvania Industrial Chemical Corp., supra, 461 F.2d at 472-473. See 33 U.S.C. § 1174. It may be hypothesized that Congress was unaware of the scope of the Refuse Act of 1899 when it consistently preserved its vitality, but in view of the Act’s all-encompassing language and the existence of the early La Merced and Ballard Oil Co. decisions, as well as the Standard Oil Co. pronouncement prior to the latest preservation in 1970, this is a doubtful hypothesis. The Third Circuit has pointed out the Acts’ consistency on the assumption that they “were designed to accomplish what may be viewed as the same end by different means.” United States v. Pennsylvania Industrial Chemical Corp., supra at 473. But even if when enacting and amending the Federal Water Pollution Control Act of 1948 while preserving the Refuse Act of 1899 Congress saw the latter as a “navigational statute,” that hardly means Congress thought pollutant discharges were outside of the Refuse Act’s embrace. On the contrray, it would seem that explicitly preserving the 1899 Act’s vitality in the context of anti-pollution legislation manifests recognition of the statutes’ overlapping coverage. Notably in 1970 Congress directed the Secretary of the Army not to issue any permit unless applicable water quality standards were complied with. 33 U.S.C. § 1171(b)(1). Of course, it is foolhardy to purport to be able always to divine the intentions and assumptions of Congress. But we perceive no conflict so irreducible or evidence of Congressional intent so strong as to nullify application of “the cardinal rule that repeals [of legislation] by implication are not favored.” Id. quoting from Lynch v. Household Finance Corp., 405 U.S. 538, 549, 92 S.Ct. 1113, 1120, 31 L.Ed.2d 424. Consistency of Defendant’s Convictions with Congressional Intent and with Due Process Defendant argues that even if its discharges are within the proscription of Section 13 of the Refuse Act, its convictions are “contrary to the intention of Congress” because no regulatory permit program under Section 13 existed in 1967 at the time of the discharges. Relying on the Third Circuit’s decision in United States v. Pennsylvania Industrial Chemical Corp., supra, it contends that in enacting Section 13 Congress intended to establish a regulatory program and in enacting The Water Quality Act of 1965 Congress must have contemplated the existence of such a program under Section 13 or, because of their incompatibility, it would not have preserved the latter statute. However, Section 13 does not speak in terms of a regulatory permit program. Straightforwardly it provides that upon prior application the “Secretary of the Army * * * may permit the deposit of any material above mentioned in navigable waters * * Section 13 may be contrasted with Section 11 (33 U.S.C. § 404) which specifically contemplates, though does not mandate, a regulatory program. See 33 U.S.C. § 406. And, even under the authority of Section 4 of the Rivers and Harbors Act of 1905, 33 U.S.C. § 419, “the establishing of a permit program by the Secretary of the Army and the Chief of the Corps of Engineers is discretionary with them as opposed to mandatory.” Bass Anglers Sportman Soc’y v. United States Steel Corp., 324 F.Supp. 412, 416 (S.D., M.D. & N.D.Ala.1971), affirmed, 447 F.2d 1304 (5th Cir. 1971). If defendant’s argument is correct, then it would follow that the discharge of anything — navigation threatening or not — is permissible so long as no permit program has been instituted. This stands the statute on its head. Clearly the statute generally proscribes refuse discharges unless in any instance the Secretary of the Army has exercised his discretion to permit it. Furthermore, the efficacy of the Refuse Act of 1899 is not dependent upon its being construed to embody a formal regulatory program in order to make it compatible with subsequent anti-pollution legislation. After enactment of The Water Quality Act of 1965 allowing discharges which met minimum water quality standards, it could make no difference in terms of the general prohibition of the 1899 Act whether the Secretary of the Army determined the effect of a proposed discharge on navigation on an ad hoc basis or pursuant to a formal regulatory permit program. When in 1970 Congress instructed federal licensing or permitting agencies to disapprove proposed discharges which failed to meet applicable water quality standards (33 U.S.C. § 1171(b)(1)), that did not undermine the across-the-board prohibition of refuse matter discharges absent the Secretary’s issuance of a permit therefor. And this limitation on the Secretary’s permit power is not substantively affected by the manner in which the permit power had theretofore been exercised. Indeed implementation of the water quality restrictions was accomplished through the institution of the Refuse Act Permit Program by Executive Order 11574 in December of 1970, but the fact that practical implementation of the 1970 water quality limitations necessitated a formal administrative permit program is not a sufficient reason to say that the previous absence of such a program rendered the general prohibition of the 1899 Act nugatory. Simply put, neither the 1965 nor the 1970 Act created a right to discharge refuse matter which did not theretofore exist. Defendant would equate the absence of a regulatory permit program with the non-availability of a permit but cannot make that equation balance. Defendant does not contend that it ever applied for a permit and was refused, but rather argues that any application would have been unavailing. However, subsequent to the decision in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, in May 1960, and prior to the time of defendant’s discharges, at least four permits for the discharge of industrial waste were issued, three of which were issued by the Chicago District of the Corps of Engineers — the District having jurisdiction over the Grand Calumet River — to steel producers in the Chicago area allowing the discharge of treated process water into the Calumet River. Although these permits were issued as part of the settlement of the Republic Steel Corp., supra, litigation, they militate against indulging in defendant’s assumption that a permit application would have been unavailing. This Court has previously recognized the Secretary of the Army’s ability to grant a permit on an individual application in the absence of a formal permit program (United States v. Republic Steel Corp., 286 F.2d 875, 879 (7th Cir. 1961)), and we think defendant was not entitled to assume a permit was unavailable. See Poulos v. New Hampshire, 345 U.S. 395, 410 n. 13, 73 S.Ct. 760, 97 L.Ed. 1105. Since defendant cannot successfully assert a defense that no permit was available, it is unnecessary to consider whether its conviction violated due process if it could not obtain a permit. However, we note that the First Circuit has, with cogency, rejected such a claim. United States v. Granite State Packing, 470 F.2d 303, 304 (1st Cir. 1972). Next defendant contends that its conviction violated due process because the Army Corps of Engineers had publicly stated that the Grand Calumet River was not a navigable water of the United States over which it exercised “active” jurisdiction. However, the two statements defendant points to, Exhibits C and D, both properly excluded from evidence (see infra), do not support defendant’s reliance. The first statement bore the date of April 8, 1969, one and a half years after the discharges in question. The second statement refers to those bodies of water over which bridges cannot be built without advance approval of the Secretary of the Army. Neither statement purports to be a definitive list of navigable waterways within the District. Evidentiary Rulings The defendant assails various evidentiary rulings of the trial court. First under attack are the admissions of Government Exhibits 1 through 7 and 13. The basis of the challenge is their belated disclosure to defense counsel. On June 1, 1970, in its discovery motion, defendant sought to inspect and copy any documents in the Government’s possession “which the government will introduce at the trial of this case or which contain information or evidence favorable to the defendant * * The Government agreed to comply. Although the trial was first set for November 30, 1970, the cause was not actually called for jury trial until October 6, 1971. The Government’s case was tried by Assistant United States Attorney Flynn of Hammond, Indiana, and James Moore of the Department of Justice in Washington, D.C. Mr. Moore came into possession of certain documentary material on the issue of the navigability of the Grand Calumet River in late September 1971. We are advised that the first time that Moore, Flynn and their navigability witness, Peter Machinis of Chicago, had an opportunity to discuss the documents together was on Tuesday morning, October 5, 1971, in Hammond. Defendant admits the receipt of copies of Exhibits 1, 2, 3, 5, 6 and 7 on that afternoon. As the district judge permissibly stated in admitting these exhibits and Exhibit 4, which was first shown to defense counsel on the morning of October 6th before trial commenced: “The [discovery] motion did not require any materials that the Government may have pertaining to this case, but asks for materials which the Government will introduce at the trial. Until the Government makes that determination to use it, or introduce, or attempt to introduce it at- the trial, there was no duty to disclose.” Moreover, as the district judge also stated, defense counsel made no prompt motion for a continuance on the ground that there was inadequate opportunity properly to analyze or assess the material. Exhibit 13, which was a compilation of Exhibits 1, 2 and 3 and was prepared by government witness Machinis and his assistant Mr. Kloker, was also received in evidence over defendant’s objection. Exhibit 13 was first exhibited to defense counsel on October 6th before the opening of the trial. It was prepared on October 1st in six hours, the same day that Machinis received the underlying Exhibits 1, 2 and 3. Copies of Exhibit 13 did not come out of the reproduction room until October 2d, and the first time government trial counsel saw them was on Tuesday October 5th, the day before the trial commenced. Although, as noted, the compilation was not made available to defendant’s counsel until just before the start of the October 6th trial, the basic Exhibits 1, 2 and 3 had been given to defense counsel the day before. Mr. Machinis did not take the stand until October 7th. Our study of the transcript shows that defendant’s trial counsel was able to cross-examine him thoroughly as to the navigation exhibits. Defendant did not begin its case in chief until October 11th and could have recalled Machinis as its witness or secured another surveyor to testify concerning the exhibits in question. Furthermore, exhibits of this nature were equally available to defense counsel. Since these documents were produced under the discovery motion as documents “which the government will introduce at the trial,” defense counsel was on notice of their prospective use. Therefore, the district judge was justified in overruling as untimely a motion for continuance made after the empaneling of the jury. We hold that the court’s rulings with respect to the admission of these eight exhibits did not amount to an abuse of discretion. Defendant has not shown that the Government decided to use the exhibits substantially before they were exhibited to defendant. Similar documentary materials were available to defendant. There is no showing of prejudice, and any right to continuance came too late. In these circumstances, Rule 16(g) of the Federal Rules of Criminal Procedure did not require the district court to impose an exclusionary sanction upon the Government. See Hansen v. United States, 393 F.2d 763, 770 (8th Cir. 1968). Defendant asserts that the district court improperly excluded its Exhibits C and D. These exhibits were offered on the issue of navigability and as support for defendant’s theory that the Government was, in effect, estopped under pain of due process from claiming the river was navigable. Exhibit C consisted of an April 8, 1969, Army Corps of Engineers public notice listing certain waterways within the Chicago District where the Corps of Engineers exercises “active jurisdiction” against obstructions to navigation and requires work permits under Section 10 of the Refuse Act (33 U.S.C. § 403). The portion of the Grand Calumet River adjacent to defendant’s plant is not listed. Exhibit D is a May 9, 1958, public notice of the Army Corps of Engineers showing navigable waters in the Chicago District where the Secretary of the Army’s approval is needed for plans for bridges. The span next to the defendant’s plant on the Grand Calumet River is not included. This case was tried on the theory that the Grand Calumet River was navigable in its state of nature and must therefore be deemed navigable thereafter as a matter of law. Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847; United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243. Defendant does not challenge this legal proposition. The district court correctly excluded Exhibit C because whether the Corps of Engineers exercised control of works on a particular waterway would not be determinative of whether the waterway is navigable in the legal sense. Furthermore, the exhibit was issued in 1969 and did not relate to the navigability of the river at the time of these 1967 offenses and, as the district judge remarked, would “only tend to confuse the jury.” Exhibit D listed certain bodies of water under the heading “Navigable Waters of the United States Within the U.S. Army Engineer District, Chicago, Illinois, Requiring Approval of Bridge Plans by the Secretary of the Army.” The text of the document was to the effect that advance approval for the building of bridges over waterways in the Corps’ Chicago District would no longer be necessary except as to specifically listed waters. The district court was correct in stating “this document has nothing whatsoever to do with navigability and does not so indicate.” The Government’s historical evidence evidently satisfied the jury that this portion of the Grand Calumet River was once a navigable river. Once found to be navigable, the water remained so. Economy Light & Power Co., supra. Exhibits C and D were properly excluded as not material to the determination of navigability in law. With respect to the other purpose for which the exhibits were offered —to establish the existence of an administrative policy to treat the Grand Calumet River as non-navigable and thereby estop the Government from claiming defendant should have applied for a permit —the exclusion was likewise correct. Exhibit C was properly excludible by virtue of its chronology alone; defendant hardly could have relied on the 1969 notice in 1967. Upon thorough examination of Exhibit D, the court below correctly found, “it certainly is not an indication of any policy by the Corps of Engineers to the effect that those [waters] over which the prior approval of bridges will not be required [are] considered by them as nonnavigable.” It was stipulated that between the date of Exhibit D in May 1958 and that of Exhibit C in April 1969, there were no known public notices dealing generally with the subject of navigable waters. We have considered the remaining arguments asserted by defendant and deem them to be without merit. Therefore, the judgment is affirmed. Affirmed. Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges. . For violations of Section 13, Section 16 of this statute imposes fines from $500 to $2500 or imprisonment for 30 days to a year or both. (33 U.S.C. § 411) . See United States v. Republic Steel Corp., 362 U.S. 482, 490, 80 S.Ct. 884, 4 L.Ed.2d 903. This exception had its genesis in an 1888 Act relating to discharges into New York Harbor (25 Stat. 209, as amended, 33 U.S.C. § 441). It is found in Section 6 of the Rivers and Harbors Act of 1894 (28 Stat. 363), which is drawn from the 1888 Act, and was carried through to Section 13 of the Rivers and Harbors Act of 1899. The district court observed it would be anomalous to have an exception for refuse matter “flowing from streets and sewers and passing therefrom in a liquid state” if the statute was aimed solely at materials which obstructed navigation because the excepted matter had no apparent tendency to obstruct navigation in the first place. 328 F.Supp. at 357. Of course, sewage “may contain some articles in suspension that settle out and potentially impair navigability.” United States v. Republic Steel Corp., supra 362 U.S. at 491, 80 S.Ct. at 889, but permanent shoaling only occurs “in a few instances” and generally the suspended organic matter will decompose and pose no problem. Id. at n. 6. The exception addresses matter which typically will not affect navigability, but, on the other hand, does not exempt from a class of possibly obstructing material only that which could not impair navigation since it excepts all “liquid” sewage discharges. . 24 Stat. 329. . 25 Stat. 209, as amended, 33 U.S.C. § 441. . H.Exec.Docs.No.123, 53d Cong., 2d Sess. (1894). . Comment, Discharging New Wine Into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 Univ. of Pitt.L.Rev. 483, 499 n. 59 (1972). . Id. at 499-500. . The Attorney General’s view that the Secretary’s discretion extended only to considerations affecting navigability was premised on a restrictive interpretation of Congressional power under the Commerce Clause. However, that interpretation was not universally espoused even at the turn of the century (see Scow No. 36, 144 F. 932, 934 (1st Cir. 1906)) and, although likely, it was not necessarily that of the Fifty-third Congress. In any event, this restrictive interpretation is no longer viable; Congress does have the underlying power enabling the Secretary of the Army to decline to issue a permit on ecological grounds. See, e. g., Zabel v. Tabb, 430 F.2d 199, 203-204 (5th Cir. 1970); Kalur v. Resor, 335 F.Supp. 1, 11-13 (D.D.C.1971). . H.R.Doc.No.293, 55th Cong., 2d Sess. (1897). . United States v. Standard Oil Co., 384 U.S. 224, 227, 86 S.Ct. 1427, 16 L.Ed.2d 492. The person who did the actual work of compilation, later Judge Koonce, stated in lecturing on the evolution of the 1899 Act: “Under Section 10 as well as Section 13 relating to the discharge or deposit of refuse matter in navigable waters, the commission of any of the acts forbidden, not their results, constitutes the offense and the commission subjects the offending party to the prescribed penalty regardless of whether or not there is any actual injury to navigation,” Lecture by Judge G. W. Koonce, O.C.E., before the Company Officers Class, The Engineer School, Fort Humphreys, Virginia, April 23, 1926, as reported in “Water Pollution Control Legislation — 1971 (Oversight of Existing Program),” Hearings Before the H. Comm. on Pub. Works, 92nd Cong., 1st Sess. 284, 290 (emphasis added). . See Warner-Quinlan Co. v. United States, 273 F. 503, 505 (3d Cir. 1921). . That regulation provided: “Deposit of Refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of ‘refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state’. The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.” 33 C.F.R. § 209.395 (1967). . That regulation provides: “Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 C.F.R. § 209.200(e)(2). . Defendant relies on dicta in Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), affirmed, 456 F.2d 1294 (5th Cir. 1972), which held that 33 U.S.C. § 407 did not create a federal cause of action in favor of private plaintiffs claiming pollution damage to their riparian lands. It did not focus on the issue here. Bass Angler Sportsman Soc’y v. United States Steel Corp., 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971), affirmed, 447 F.2d 1304 (5th Cir. 1971), also relied on by defendant, held that no “qui tarn” action to recover fines imposable under 33 U.S.C. § 411 for violations of 33 U.S.C. § 407 could be maintained. This holding is not revelant to the present issue. See Jacklovich v. Interlake, Inc., 458 F.2d 923 (7th Cir. 1972). Finally, defendant adverts to Kalur v. Resor, 335 F.Supp. 1 (D.D.C.1971), which held that the Secretary of the Army’s permit regulations of April 7, 1971, 33 C.F.R. § 209.131, were beyond statutory authorization insofar as they covered non-navigable tributaries. Its holding is likewise not relevant here. . The Federal Water Pollution Control Act of 1948 underwent further amendment in 1966 (80 Stat. 1246), but that amendment is immaterial here. Subsequent to the discharges in question, the Act was again amended in 1970 (84 Stat. 91), and was thoroughly revised in 1972. See 33 U.S.C. § 1251 et seq. . 33 U.S.C. § 419 provides, in pertinent part: “The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of * * *■ refuse materials of every kind or description, whenever in his judgment such regulations are required in the interest of navigation.” . 35 Fed.Reg. 19627 (Dec. 25, 1970); 3 C.F.R. p. 309 (1973). . “Effects of Mercury on Man and the Environment,” Hearings Before the Subcomm. on Energy, Natural Resources, and the Environment of the S. Comm. on Commerce, 91st Cong., 2d Sess., pt. 2 at 168, 201 (1970). . The district court refused to receive Government Exhibits 16 and 17 into evidence because of their late disclosure on the morning the trial commenced. Exhibits 4 and 13 were admitted despite equally late disclosure, apparently because Exhibit 4 was just an additional map and because Exhibit 13 was just a compendium of Exhibits 1, 2 and 3. Furthermore, no separate objection appears to have been made that Exhibit 4 was not displayed to defendant until October 6th.

United States v. United States Steel Corp.

ON APPELLANT’S PETITION FOR REHEARING. ORDER In support of its petition for rehearing defendant argues, in part, that the Supreme Court’s recent opinion in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), requires that defendant have the opportunity to prove that it was affirmatively misled by regulations and other official pronouncements of the Corps of Engineers into believing that 33 U.S.C. § 407 did not apply to its discharges. However, in that case the defendant offered to prove at trial that it relied in good faith on 33 C.F.R. § 209.395 (1966) and 33 C.F.R. § 209.200(e)(2) (1969) in concluding its discharges were permissible under law, and it raised the exclusion of such proof as an issue on appeal. Here, in contrast, although defendant invokes the same regulations, it has pointed to no attempt in the trial below to prove that it actually relied upon them in making its discharges, and on appeal defendant utilized those regulations solely in an effort to establish an administrative interpretation to which, it argued, the Court should give great weight in construing 33 U.S.C. § 407. It did not argue that it had relied on these regulations in discharging the refuse matter, nor did it argue that any proof of reliance thereon was submitted and improperly excluded below. Insofar as Exhibits C and D are concerned, for the reasons set forth in the Court’s opinion, their exclusion from evidence was justified. Had they been admitted, they could not have formed a sufficient basis to justify reasonable reliance, as the district court indicated in its ruling. The petition for rehearing is denied. The latter regulation was promulgated after the discharges in question.

City of Jackson v. Filtrol Corp.

SAM D. JOHNSON, Circuit Judge: This is an appeal from a diversity case, Mississippi law controlling, brought by the City of Jackson, Mississippi (the City) against Filtrol Corp. for additional costs that the City incurred in constructing a sewer line on its right-of-way over Filtrol’s property and some property adjacent to Fil-trol’s. The City alleged that it incurred these additional costs because Filtrol had contaminated its property and the adjacent property with a concentration of sulfuric acid high enough to corrode ordinary cement sewer pipes. At the close of the City’s evidence, the district court directed a verdict for Filtrol on a variety of grounds. I. The Facts In 1936 Filtrol began operations at its Jackson plant to process bentonite clay into a powder that it used to purify petroleum and vegetable oils. As a part of the process, the clay is washed in a sulfuric acid bath. After the sulfuric acid bath, a water bath removes the acid from the clay. The water bath produces an effluent that is ninety-five percent water, four percent electrolytes, and one percent sulfuric acid. In 1943 Filtrol built several concrete ponds on property that it owned outside the Jackson City Limits. Filtrol used these ponds to hold the effluent from the water bath when the water level of the nearby Pearl River was low. Filtrol would discharge the effluent from the Ponds when the river’s level rose high enough that the discharge of effluent would not significantly lower the river’s pH. The City produced evidence at trial that one of the Filtrol ponds, Pond No. 4, began to leak on the first day in 1943 that Filtrol channeled effluent into it. The pond leaked at a very slow rate, but for a long period of time. Sometime around 1954 or 1955, the area where the City eventually laid its sewer pipe became so contaminated with acid that its pH was only 2.5. In 1960, the City began an area wide sewage treatment project that required the construction of a 96 inch diameter concrete collector pipeline. This pipeline is called an interceptor line because it was designed to travel along the Pearl River and intercept all the other lines that had dumped raw sewage into the river. The interceptor line was designed to be gravity fed so it had to follow the downhill contours of the area topography. These downhill contours dictated that the pipe go through Filtrol’s property and some adjacent property belonging to the Ridgeway family. In 1971, twenty-eight years after Filtrol’s Pond No. 4 began to leak and seventeen years after the subsoil in the area had already become contaminated with sulfuric acid, the City approached Filtrol to acquire an easement for its sewer line. Filtrol voluntarily agreed to grant a sewer easement to the City for the same amount that all the other landowners received, $1.00 per lineal foot. In addition to paying $2,518 for the easement over Filtrol’s property, the City agreed to indemnify Filtrol from all losses arising out of the presence of the interceptor line on Filtrol’s property. At around the same time the City acquired the easement from Filtrol, it also acquired an easement to construct the interceptor line over the Ridgeway property adjacent to Filtrol’s property. At the time these easements were executed, no one knew, at least as far as the facts in the record show, that the soil in the easements had been contaminated with acid. To construct the interceptor line, the City began excavating dirt so it could lay the sewer pipe twenty-five to thirty feet below the surface. Large quantities of subsurface water complicated the excavation. To prevent the collapse of the walls of the ditch it was digging for the sewer pipe, the City had to dewater the ditch by pumping out the subsurface water. The dewatering pumps failed repeatedly. The City investigated and determined that sulfuric acid in the subsurface waters had corroded its pumps and caused them to fail. The City’s investigation revealed that Filtrol’s Pond No. 4 was the source of the acid in the subsurface soil. Concrete pipe, according to the evidence at trial, will corrode in a pH of less than 5.5. The City could not reroute its interceptor line to avoid the contaminated soil, so it had to protect the concrete pipe from the acid with an asphalt coating. The City coated 1,158 feet of pipe that lay in the easement on Filtrol’s property and 373 feet of pipe on the Ridgeway property. Further downstream where the soil was not as contaminated, the City packed 302 feet of pipe on the Ridgeway easement with a compacted clay backfill. The City claimed it spent almost one-half million dollars to protect its sewer pipe from the acid. It sued Filtrol in state court on a variety of grounds. Filtrol removed to federal court on the grounds of diversity, and the federal district court ordered a bifurcated trial on damages and liability. At the close of the City’s evidence in the liability phase of trial, the district court granted Filtrol’s motion for directed verdict. It relied heavily on an indemnity agreement between Filtrol and the City. On appeal, the City claims it made a showing of Filtrol’s liability sufficient to withstand a directed verdict on four separate bases of recovery in tort: nuisance, strict liability, negligence and trespass. The City also claims that the district court erred in entering judgment against it because of the indemnity agreement between it and Fil-trol. . II. The Indemnity Agreement The easement that Filtrol granted to the City provides in part as follows: The grantee City of Jackson shall indemnify and save harmless the Filtrol corporation from any and all loss resulting from any damage to person or property arising out of or resulting from or in any manner caused by the location, construction, operation and maintenance and presence of said City of Jackson, Sanitary Sewer Main, upon and across . the Filtrol Corporation’s easement . . . The district court held that this provision barred the City’s recovery against Filtrol. On appeal, Filtrol makes a refreshingly candid concession. The indemnity provision can only hold Filtrol harmless from the damages incurred by the City in constructing the interceptor line on the easement granted by Filtrol. Filtrol concedes that the indemnity provision cannot apply to the additional costs the City incurred to protect the interceptor line from corrosion in its easement over the Ridgeway land. The City contends that the indemnity provision does not apply to the facts of this case, even on the Filtrol property. Even a cursory reading of the provision indicates that the contrary is true. The City agreed to hold Filtrol harmless from “any and all loss . . . arising out of . the location ... [of the] sewer main upon . . . the Filtrol Corporation’s easement . . . .” The City brought suit for damages it incurred because it had to locate the sewer line in contaminated soil on the Filtrol Corporation’s easement. This is a loss arising out of the location of the sewer main on the easement. The indemnity provision clearly applies. The City cannot profit from the fact that Filtrol, when it drafted the indemnity provision, did not specifically foresee that the provision would apply to the facts of this case. Filtrol drafted, we can assume, a broad indemnity provision so that it would be protected from liability even in difficult to foresee circumstances. The City next contends that the indemnity provision is not clear and unequivocal enough to protect Filtrol against the consequences of its own negligence. At least at one time, the majority of jurisdictions strictly construed indemnity contracts so that broad, all-encompassing language of indemnification did not indemnify an indemnitee against loss caused solely by the indemnitee’s own negligence. See United States Fidelity & Guaranty Co. v. Mason and Dulion Co., 274 Ala. 202, 145 So.2d 711, 713 (Ala.1962); United Gas Pipeline Co. v. Gulf Power Co., 334 So.2d 310 (Fla.App. 1976); H. McNeal, Indemnity — A General Review 21 (1963). Instead, the courts frequently would require the indemnity provision to expressly provide that it applied to losses caused solely by the indemnitee’s own negligence. This, however, is not the law in Mississippi. In Blain v. Sam Finley, Inc., 226 So.2d 742 (Miss.1969), the subcontractor, Finley, agreed to fully indemnify and “save harmless [the] contractor [Blain] from all such claims for damages and from all expenses and attorney’s fees incident thereto, arising out of or in anywise connected with the subcontract work.” An employee of Blain was killed when his automobile struck a parked asphalt spreader that was under the exclusive control of the subcontractor, Finley. The employee’s representative sued Blain and Finley, and lost. Blain then sued Finley to recover the attorney’s fees and costs it had incurred in defending the employee’s suit. The Court first noted that indemnification for attorney’s fees follows the same rules as indemnification for other damages. It stated that the parties to an indemnity contract must clearly and unequivocally express their intent to indemnify one against the consequences of his own negligence. The Court then held that the indemnity provision quoted above was “broad enough to indemnify Blain against his own negligent acts . . . .” Id. at 746. In Mississippi, broad language of indemnification is clear and unequivocal enough to protect an indemnitee against the consequences of his own negligence. The indemnity provision in the instant case is as broad as the indemnity provision in Blain. It is, therefore, sufficiently clear and unequivocal to indemnify Filtrol against the consequences of its own negligence. The City attempts to distinguish the instant case from Blain on the ground that in the instant case the tortious acts of the indemnitee have injured the indemnitor instead of some third party to whom the indemnitor was held liable. This fact does distinguish Blain from the instant case, but the City offers and this Court perceives no reason for this distinction to make a difference in the result. Indemnity provisions allocate ultimate liability for a loss between the indemnitee and the indemnitor. Whether the indemnitor or some third party suffered the original loss, liability for which the indemnity provision will allocate, should make no difference. The City next contends that the indemnity provision in this case is void under a Mississippi statute enacted in 1972. That statute provides that With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, . . . sewer or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable. Miss. Code Ann. § 31-5-41 (Supp. 1978). This statute does not apply to the City’s agreement to indemnify Filtrol. Filtrol granted the City an easement so that the City could construct a sewer line. The easement was not an agieement for or dealing with the construction of a sewer line. The statute appears directed to contracts in which one party actually undertakes to construct, repair, or maintain a structure or sewer system. If, after taking the easement, the City decided not to construct the sewer line, Filtrol would not have a claim for breach of the easement with the City. The easement is not a contract in which one party agreed to construct a sewer. Finally, the City contends that Filtrol’s actions in allowing its effluent to contaminate the subsurface sands were illegal under Mississippi law and that Filtrol cannot indemnify itself against the consequences of an illegal act. The City claims that Filtrol acted illegally under the Mississippi Air and Water Pollution Control Law, Miss. Code Ann. § 49-17-1 et seq. This law was not enacted until 1972, however. Filtrol’s acts were therefore not illegal at the time they were performed. Furthermore, an agreement “to indemnify against the consequences of an illegal act already committed is . valid, unless there was an understanding prior to the commission of the illegal act that subsequently indemnity should be given . . . .” 15 Williston on Contracts 139 (1972) (footnote omitted). The City cannot avoid its agreement to the indemnity provision on the ground that indemnification against an illegal act is void. Rejecting all of the City’s challenges to the indemnity provision in this case, we hold that the provision bars the City’s recovery against Filtrol for damages incurred on a portion of the sewer line that lies on the right-of-way granted by Filtrol to the City. As discussed above, Filtrol has conceded that the indemnity provision can only apply to that part of the City’s cause of action for damages incurred on the Filtrol easement. The remaining discussion in this opinion will apply only to the City’s recovery of damages incurred in protecting the sewer line on the Ridgeway property. III. Nuisance, Trespass, and Strict Liability The City argues that it produced sufficient evidence to hold Filtrol liable on three separate theories: nuisance, trespass, and strict liability. Our examination of Mississippi law indicates that on the facts of this case nuisance, trespass, and strict liability are not separate theories of liability. Mississippi allows a plaintiff damaged by a physical invasion to its land to recover upon a simple showing that the defendant was responsible for the physical invasion. Here, the City offered sufficient evidence from which the jury could reasonably have concluded that Filtrol was responsible for a physical invasion of the City’s land. Without disputing this fact, Filtrol argues that the prior trespass doctrine in Mississippi law bars the City’s recovery. The prior trespass doctrine, we conclude, does not apply. Accordingly, the district court erred in directing a verdict against the City on the issue of Filtrol’s liability for damages incurred by the City in protecting its pipeline from the contaminated soil on the Ridge-way property. The Mississippi courts have held defendants strictly liable for the physical invasion of a plaintiff’s land in a variety of situations. In King v. Vicksburg Railway and Light Co., 88 Miss. 456, 42 So.2d 204 (1906), the plaintiff sued for depreciation in the value of his property caused by noise, smoke, soot and vibration from the defendant’s adjoining power plant. The court noted that the plant’s “machinery is of the best kind, its employees skillful and careful, and its management above criticism.” 42 So.2d at 204. The evidence showed, however, that the plaintiff’s property had been damaged by the physical invasion of the defendant’s plant. This subjected the defendant to strict liability. “No owner of property may put in motion agencies which physically invade the home of another without liability for the damage done.” 42 So.2d at 204-205. In the instant case, making all reasonable inferences in support of the party against whom a directed verdict was granted, Filtrol put in a motion the acid that invaded the City’s property. In a more recent case, a landowner sued to recover damages to his cows caused by an overflow of the defendant’s sewer into a ditch that carried the overflow into the landowner’s pasture. The court stated that the landowner made out a case of absolute liability upon showing that the defendant was responsible for the sewage invading his land. Town of Fulton v. Mize, 274 So.2d 129 (Miss. 1973). The court in Mize relied on Love Petroleum Co. v. Jones, 205 So.2d 274 (Miss. 1967). There, the plaintiff recovered for damages to his land caused by oil and salt water that escaped from the defendant's oil well. The language of the opinions in Love Petroleum and Mize indicates that the court held the defendants liable in nuisance. On similar facts, in a case decided after Love Petroleum and before Mize, the Mississippi Supreme Court held that the landowner was entitled to recover in trespass rather than nuisance. The plaintiff in Blue v. Charles F. Hayes & Associates, Inc., 215 So.2d 426 (Miss. 1968), alleged that the defendant built a slush pit to hold drilling mud, acids, refuse, lye, and lime and that the contents of the slush pit leaked over the plaintiff’s land. The court held the plaintiff had stated a cause of action for trespass and then went on to distinguish nuisance from trespass. The court noted that when the plaintiff’s property is not physically invaded, the cause of action is for nuisance rather than trespass. The label that a court attaches to the theory under which it holds a defendant liable does not appear to be of critical importance. Mississippi clearly allows a plaintiff to recover damages to land caused by a physical invasion of the plaintiff’s land by an agency put in motion by the defendant, even if the defendant has not been negligent. The City produced sufficient evidence from which a jury could reasonably infer that it suffered damages because Filtrol’s acid physically invaded the right-of-way. See also Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So.2d 891 (Miss. 1945) (holding the defendant liable for damages to the plaintiff’s land caused by the defendant’s channeling of a fast stream of rain water on the plaintiff’s land”), noted in Prosser, Law of Torts § 78 (1971). Unlike the plaintiffs in several of the cases discussed above, the City has not sued for a decrease in the value of its property caused by the defendant’s physical invasion. Instead, the City has sued to recover special damages incurred because of the defendant’s invasion. The cases allow recovery of special damages. The court in City of Oxford v. Spears, 228 Miss. 433, 87 So.2d 914 (Miss. 1956), held that a landowner can recover special damages caused by a nuisance and gave as examples of special damages the following: annoyance, discomfort, inconvenience, and sickness. The court went on to state that its listing was not exhaustive and that, “[t]here may be others.” In Town of Fulton v. Mize, the court stated simply that, “The injured landowner is entitled to . special damages as may accrue to him as a direct result of the nuisance.” 274 So.2d at 131. Thus, in the instant case, the City will be entitled to recover the costs of protecting the interceptor sewer line if it can show that those costs were incurred as a direct result of the escape of Filtrol’s acid into the City’s right-of-way. Of course, the City will have to show that the costs it incurred were reasonable, and Filtrol will have an opportunity to show that the City failed to mitigate its damages. Filtrol contends that the prior trespass doctrine in Mississippi law precludes the City’s recovery against it. The prior trespass doctrine provides that a purchaser of land “gets the land only and not any right of action for former trespasses.” Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39, 40 (Miss. 1937). Filtrol argues that the City’s evidence showed that the property that later became the City’s right-of-way was contaminated with acid in 1955. This, Filtrol argues, was a permanent condition of the land, and when the City acquired the land the prior trespass doctrine barred the City’s recovery for damages caused by the prior trespass. The rationale for the prior trespass doctrine is that a purchaser of land to which permanent damage has been done by trespass or nuisance pays less for the land because of that damage. The purchaser therefore cannot recover for the diminution in the value of the property caused by the nuisance or trespass. 58 Am.Jur.2d Nuisances § 105 (1971). (The Mississippi Supreme Court has frequently looked to American Jurisprudence Second for general principles of nuisance law. See e. g., Vicksburg Chemical Co. v. Thornell, 355 So.2d 299 (Miss. 1978); Blue v. Charles F. Hayes & Associates, Inc.) Here, the city is not suing for a diminution in the value of the right-of-way it purchased from Ridge-way; it is suing for special damages caused by Filtrol’s invasion of the property it purchased. In Thompson, the court applied the prior trespass doctrine to bar recovery by the plaintiffs for any decrease in the value of land caused by the drainage of the defendant’s sewer system onto the plaintiffs’ land. The court, however, then went on to hold that the plaintiffs could recover special damages that they incurred because of the defendant’s sewer. The same result obtains here. Assuming that the Ridgeway land became permanently contaminated with acid before the City bought it, the City cannot recover from Filtrol the decrease in the value of the land caused by the contamination. The City can nonetheless recover the special damages it has suffered because of the contamination. This application of the prior trespass doctrine accords with the doctrine’s purpose. The City cannot recover for the diminution in the value of the land because the price it paid, theoretically at least, for the land reflected the damage to the land by the contamination. The City can recover special damages caused by the contamination because the price it paid for the land did not reflect those damages. In short, the district court erred in directing a verdict against the City. On remand, to establish liability of Filtrol for its special damages, the City will have to show that it incurred those damages because of a physical invasion of the Ridgeway right-of-way by Filtrol’s acid. IV. Negligence The City also contends that it made out a case of Filtrol’s negligence sufficient to withstand a motion for directed verdict. We decline to address this question. Filtrol’s negligence, if any, in allowing acid to escape from its property is not relevant to this suit. Filtrol is liable to the City if acid escaped from its property and caused the City damage. The City need show no more to hold Filtrol responsible for its damages under a theory of strict liability. To hold Filtrol liable in negligence, the City would have to make the same showing it did for strict liability plus it would have to show a breach of duty. Filtrol would never be liable in negligence if it were not liable in strict liability. Negligence therefore drops out of the case. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . The United States is in this case because it paid 55% of the costs of constructing the sewer line, and it stands to share in any judgment that may eventually be awarded to the City. The United States has adopted the City’s brief in this case and waived oral argument. . “pH” is a quantitative measure of the acidity or basicity of liquid solutions. It ranges on a scale from 1 to 14. A pH of 7 is neutral, less than 7 is acidic, and more than 7 is basic. See 7 Encyclopedia Británica (Micropaedia) 922 (1974). Filtrol would only release the effluent in the ponds when doing so would not reduce the Pearl River’s pH below 6. . We assume for the purpose of deciding this point that Filtrol negligently contaminated the subsurface soil surrounding the City’s sewer pipe. . The district court also entered judgment against the City on the doctrine of caveat emptor. Like the indemnification provision, the doctrine of caveat emptor cannot apply to damages other than those incurred by the City on the easement that it bought from Filtrol. Because the indemnity provision bars recovery of damages incurred on the Filtrol easement, we need not address the validity of the district court’s holding on caveat emptor. . The City did not own its right-of-way at the time that property was first invaded by the defendant’s acid. This is the basis of Filtrol’s prior trespass defense, which is discussed later. . The application of the prior trespass doctrine would be especially tenuous in this case when no one knew of the permanent contamination to the subsurface soil on the Ridgeway land at the time the City purchased that land. Since no one knew of the contamination, the contamination could not have influenced the price the City paid for its easement.

Appalachian Power Co. v. Train

WIDENER, Circuit Judge: These actions arise because of EPA amending its regulations to comply with our mandate in Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. 1976). In Appalachian Power, approximately seventy power companies sought review of the Environmental Protection Agency’s (EPA) regulations promulgated under authority of the Federal Water Pollution Control Act (Act). The power companies now challenge EPA’s amendments to parts of 40 CFR Part 423 on grounds that they do not fully comply with Appalachian Power. Part 423 sets out the best practicable technology (BPT) limitation standards for the steam electric power industry. Natural Resources Defense Council (NRDC), through its petitions, also seeks a review of certain EPA BPT regulations, not on the ground that Appalachian Power has not been complied with but on the ground that § 301(7), 33 U.S.C. § 1311(7), a 1977 amendment to the Act, prohibits EPA from modifying any of § 301, 33 U.S.C. § 1311, including BPT limitations, for toxic pollutants. It also challenges the EPA variance amendments on the ground that they did comply with Appalachian Power so far as the factors in § 301(c) are referred to in the amended regulations. In 1972, Congress passed the Federal Water Pollution Control Act (Act) with an ultimate goal of no pollutant discharges into our nation’s waters. Toward that ultimate goal, Congress established increasingly stringent standards of pollution control. Phase I of the Act sets best practicable technology (BPT) limitations to go into effect in 1977. In 1983, best available technology (BAT) limitation standards are to go into effect. Several parts of the Act were amended in 1977 but the basic goals and strategies of the Act remain intact. EPA is given broad power under the Act so that it may insure that the phases of improvement can be achieved. In order to carry out its obligation, EPA promulgated regulations setting single number effluent limitations for various industries in order to commence the achievement of the goal of the statute. In duPont, we held that EPA had the authority to promulgate such effluent limitations which are to be considered presumptively applicable. E. I. duPont de Nemours & Co. v. Train, 541 F.2d 1018, 1028 (4th Cir. 1976), aff’d on this point 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). Through the regulations, applicable unless rebutted, EPA hopes to achieve national uniformity as the goal of no discharge of pollutants is sought. Id. at 1028. Appalachian Power involved a review of many of EPA’s regulations promulgated to aid in the application and enforcement of the Act. Only our holding dealing with BPT variance regulations is pertinent to our decision here. Among other provisions under attack in Appalachian Power was EPA variance clause providing that a variance from the 1977 standards set out in the regulations would be granted when “the factors relating to equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from those factors considered in establishing the guidelines.” Costs were excluded from consideration by EPA’s interpretation of its own regulation. We struck down the clause because EPA’s refusal to consider costs resulted in too restrictive a view of the minimum content of the variance. Under the 1983 standards set out in the Act, for example, costs were to be a relevant factor. Following our decision in duPont, we reasoned that the Act contemplated progressively more stringent standards as the country moved closer to the goal of elimination of pollutant discharge. Therefore, the 1977 standards were not intended to be any less flexible than the 1983 standards. As a result, we remanded the regulation to EPA for the agency to come forward with a meaningful variance clause taking into consideration at least the statutory factors set out in §§ 301(c), 33 U.S.C. § 1311(c); 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B); and 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B). Appalachian Power at 1359-60. After the Supreme Court’s decision in E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), we modified our decision in Appalachian Power to exclude the requirement of a variance for new sources, but declined to modify the opinion further. In March 1978, EPA proposed its amendment to the BPT variance provision. 43 FR 8812-13 (1978). After a comment period, this rule was made final on September 22, 1978. EPA amended 40 CFR Parts 423.12(a), 423.22(a), 423.-32(a) and 423.42 by adding the following paragraph: In accordance with the decision in Appalachian Power, 545 F.2d 1351, 1358-60 (4th Cir. 1976), EPA’s legal interpretation appearing at 30 FR 30073 (1974) shall not apply to this paragraph. The phrase “other such factors” appearing above may include significant cost differentials and the factors listed in section 301(c) of the Act. 43 FR 43025 (Sept. 22,1978) corrected at 43 FR 44848 (Sept. 29, 1978). In October 1978, EPA published a notice rescinding its no-cost interpretation of 1974. 43 FR 50042. In October 1978, the utilities filed this action. The utilities challenge the EPA amendment to the BPT variance provisions, contending that the mandate of Appalachian Power has not been met by the addition of “significant cost differentials and the factors listed in section 301(c) of the Act.” Specifically, the utilities argue that Appalachian Power requires EPA to consider 304(b)(1)(B) factors including “total cost . in relation to effluent reduction benefit.” The utilities concede that the addition of “significant cost differentials and the factors listed in section 301(c) of the Act” to the existing variance provisions on its face could fulfill the Appalachian mandate. They argue, however, that EPA has made it clear that effluent reduction benefits are not a relevant factor under the regulation. The utilities urge that EPA’s interpretation of effluent reduction benefit is much too narrow in that it considers only costs in relation to the degree of effluent reduction with no consideration of receiving water quality. Such an interpretation, they urge, is impermissible in light of Appalachian. No variance has been applied for here. Therefore, the utilities’ only authority offered to show EPA’s application of its newly amended regulations is the February 6, 1979 recommendation of the Assistant Administrator for Water Enforcement of the EPA tentatively turning down Cincinnati Gas and Electric Company’s application for a variance for its W. C. Beckjord Station, as well as the case of In re Louisiana-Pacific Corp., 10 ERC 1841 (1977). That document, the utilities contend, shows EPA’s rejection of water quality as a factor in considering effluent reduction benefits pursuant to Appalachian. There, Cincinnati Gas’ application for a variance from ph limitations was turned down because no fundamental difference was found to justify a less stringent standard. In commenting on receiving water quality, the Office of Enforcement of the EPA included in its recommendation to the Administrator the following: The Administrator has determined In the matters of Louisiana Pacific Corporation NPDES No. CA0005894 and Crown Simpson Pulp Company NPDES No. CA0005882 10 ERC 1841 (September 16, 1977) (“Louisiana Pacific”) that EPA is not authorized to grant a FDF variance providing relief from technology-based limitations guidelines due to the characteristics of the receiving water. The type of receiving water or the fact that the receiving water quality will not be harmed by the discharge or measurably improved by installing control equipment are not legally fundamental differences. Recommendation on Variance Ruling FDF 78-01 at pp. 7-8. We think the utilities’ .reliance on the recommendation in the Cincinnati Gas and Electric variance recommendation is misplaced. First and principally, the Administrator has not yet taken any action with respect to the variance. That being so, we do hot believe that, even assuming the utilities’ construction of the recommendation to be correct, the recommendation of the Office of Enforcement to the Administrator is legally binding on the Agency. While it may have considerable significance, legal as well as practical, to the parties involved, it is little if anything more than an in-house memorandum from a subordinate in the Agency recommending to the Administrator the action he should take in passing on the requested variance. Second, the language we have above quoted, which is that upon which the utilities rely, we do not believe, read in context, can be taken to say that the Administrator in no instance will consider the quality of the receiving water as a part of the evidence in a case requesting a variance. Read literally, the language simply means that the quality of receiving water of itself is not a fundamental difference upon which a variance can be granted. This is entirely consistent with that part of our ruling in Appalachian Power in which we denied the claim of Consolidated Edison that it ought to be allowed to discharge into New York harbor not subject to effluent limitations because the harbor was already so dirty the addition of its effluent would make no difference. From an examination of the papers on hand in the Cincinnati Gas and Electric Company variance No. FDF 78-01, we believe, however, that the variance was not sought solely or even principally because of the water quality of the Ohio River into which the effluent flowed. Rather, it was based principally upon cost differentials and a claim that the addition of sulphuric acid to its settling ponds to reduce their alkalinity would do more harm to the receiving water than the effluent in question in that case. Much the same remarks apply to EPA’s decision in In re Louisiana-Pacific Corp., 10 ERC 1841 (1977). In that case the claim of the industry was that a discharge of its effluent into the ocean would do no harm apparently because the ocean waters were so vast. The Administrator denied that variance, again entirely consistent with our opinion in Appalachian Power, concluding that he could provide no “. relief from technology-based effluent limitations guidelines due solely to the characteristics of particular receiving waters. .” He stated that he could not permit exemption where the type of receiving water is the fundamental difference between the seekers of the variance and other pulp and paper mills. In his opinion, the Administrator time and again made it plain that the only thing he acted upon was a request for a variance based solely on water quality. At no place in that decision did the Administrator indicate that he did or would hold that the quality of the receiving waters was irrelevant in all instances in variance proceedings. It is true EPA does take that position in its brief in this court: “Receiving water quality simply cannot legally be considered a relevant factor in evaluating a variance request.” Brief at p. 13. But as the mere recommendation of a subordinate does not bind the Agency, neither does the mere assertion of an attorney in a brief except for the purposes of that case. Much as we disagree with the statement, there has been no application of it in the case before us, and no binding statement has been made to that effect by the Administrator. We will have to await a proper case to see if the Administrator in actual practice, or in the administration of the statute, takes the same extreme position his attorneys do in the brief in this case. No such extreme position can be read into the Louisiana-Pacific or Cincinnati Gas variance cases. Because we believe the amendment of the variance provision will admit consideration of all of the factors required in our opinion, and there has been no concrete application denying a variance request which is under review, we decline to set aside EPA’s amended regulations as a noncompliance with our mandate. EPA and NRDC also ask us to reconsider our holding in Appalachian Power to the effect that § 301(c) factors are applicable in consideration of variances from BPT limitations. Id. at 1359-60. This issue was dealt with again by this court in National Crushed Stone Assoc. Inc. v. EPA, 601 F.2d 111 (4th Cir. 1979), and in Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979), cert, granted-U.S.-, 100 S.Ct. 1011, 62 L.Ed.2d 750 (1980). In those cases the industries successfully sought application of Appalachian Power’s BPT variance holding outside the steam electric industry to which EPA had limited our holding in Appalachian. We declined to change our Appalachian Power variance holding in those cases, and we decline to do so here. We should note at this point that EPA continues to argue from extreme positions which we do not believe are justified by the statute, and even are not justified by the actions of the Administrator as distinguished from the language in his brief. EPA’s principal argument in this case is shown by an example it gives that a dis-charger of a copper compound might be granted a variance if it were on a clean river but not if it were on a dirty river. The example misses the point. If the dis-charger were economically able to correct its condition of violation and if its efforts resulted in reasonable further progress toward meeting the standard, then there is no reason to necessarily exclude the issuance of a variance. But if the continued discharge, during the time it took the industry to comply, might kill all aquatic life in the river, it might easily be said that the progress was not reasonable, while, if the discharge did little or no actual harm during this period, it might just as easily be said that reasonable progress was being made. To determine whether or not progress is reasonable, we repeat, it may be appropriate to consider water quality as a factor, that is to say as an item of evidence. Its sought-for arbitrary exclusion by EPA is simply too rigid a construction of the statute, and we do not believe it is justified. To hold otherwise ultimately can only result in regulation for regulation’s sake, at which point, of course, a serious question of constitutional limitations would arise. We believe this useful statute deserves better treatment. NRDC’s petitions request us to hold that variances from BPT limitations cannot be granted to a discharger of toxic pollutants because of a 1977 amendment to the Act, which states: The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) [33 U.S.C. § 1317(a)(1)] § 301(7) of the Act, 33 U.S.C. § 1311(7). It is the contention of NRDC that the amendments to the various regulations should have as required content a prohibition against issuing a variance from BPT limitations on account of toxic pollutants. 33 U.S.C. § 1317(a)(1) (§ 307(a)(1) of the Act) requires the Administrator to publish a list of toxic pollutants. Upon designation of a pollutant as toxic, § 307(a)(2) [33 U.S.C. § 1317(a)(2)] goes into effect, requiring the EPA to set BAT standards for those pollutants. As now interpreted by EPA, the variance clause applies to all pollutants for which BPT limitations are set by regulations. The BPT limitations for the steam electric industry include pollutants which are on the toxic pollutant list in 40 CPR Part 129. As noted, because of § 301(7), the NRDC contends that EPA in a repromulgation of its variance regulations must in terms exclude toxics from their coverage. EPA and the utilities contend that § 301(7) was not intended to apply to BPT, but only to the specific sections of § 301 which allow an operator to be relieved of an effluent limitation. They also argue that a BPT variance is not a true variance so as to bring § 301(7) into effect. BPT variances, the argument goes, do not excuse anyone from meeting BPT limitation standards. Instead, they enable EPA to determine an individual BPT limitation for an industry procuring a variance. As a result, an operator granted a variance is still in compliance with its BPT limitation standard. Its standard is just different from others. It is apparent that if either argument just above stated is correct that EPA is not required to exclude toxic pollutants from BPT variances. We think that § 301(7) does not apply to BPT variances. Toxic pollutants prior to the 1977 amendments were not treated differently from other pollutants in that BAT technology was not necessarily applied, and dischargers discharging toxic pollutants were nevertheless included in those required to comply with BPT effluent limitations. While the 1977 amendments have required BAT limitations for discharges of toxic substances, they do not indicate that they are to operate retroactively so as to possibly retract any variance previously issued to an industry which just happened to be discharging toxic substances, or to obliterate the known practice of EPA in not excluding toxic substances from those pollutants for which a variance might be granted under BPT effluent limitations. Neither does the legislative history justify such a construction. See 3 U.S. Code Congressional and Administrative News, 1977, p. 4326 et seq. The interpretation of the statute by EPA is entitled to some deference. E. I. duPont de Nemours v. Train, 430 U.S. 112, 135 h. 25, 97 S.Ct. 965, 978 n. 25, 51 L.Ed.2d 204 (1977). It is also true that retroactive application of a statute is not favored. Union Pacific RR Co. v. Laramie Stockyards Co., 231 U.S. 190,199, 34 S.Ct. 101,102, 58 L.Ed. 179 (1913). In our case, § 301(7) speaks to preventing the modification of any requirement of § 301 as it applies to any specific pollutant on the toxic pollutant list. On its face, it might thus be said to apply to such parts of the statute as § 301(c) which speaks of modifying requirements for BAT limitations. Indeed, in § 301(g), 33 U.S.C. § 1311(g), also a part of the 1977 amendments, it is provided that the Administrator, with the concurrence of the State, shall modify BAT requirements with exceptions including toxic pollutants. While this may well be an indication of Congressional intent that the statute should be read as EPA reads it, that § 301(7) applies only to those sections of § 301 which in terms permit modification, in all events the best that can be said for § 301(7) is that it is not clear. That being true, we give weight to the construction the administering agency has placed upon the statute, and, when we consider that retroactivity is not favored, we are of opinion that § 301(7) does not apply so as to require the exclusion of toxic substances from BPT variance provisions. Our ruling today is limited to the holding that BPT variance regulations need not exempt toxic pollutants. We do not consider whether or not, or how, EPA will construe § 301(c) with relation to § 301(7). That question is not before us and its consideration would be premature. Accordingly, being of opinion that EPA’s amendments to 40 CFR §§ 423.12(a), 423.-22(a), 423.32(a), and 423.42 are sufficient to permit a compliance by the agency with our opinion and mandate, the petition of the industry to require further consideration of this matter by EPA is denied. (This petition was filed in case No. 74-2096.) The petition of the industry dealing with the same subject in case No. 78-1701 is likewise denied for the same reasons. The petitions of NRDC are also denied for the reasons stated in this opinion. (These petitions were filed in cases Nos. 78-1878 and 78-1902.) . 33 U.S.C. § 1251 et seq. . Specifically amended were 40 CFR 423.12(a), 423.22(a), 423.32(a) and 423.42. . § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). . § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). . § 423.12(a) interpreted at 39 FR 28926-27 (Aug. 2, 1974), 30073 (Aug. 13, 1974). . § 301(c), 33 U.S.C. § 1311(c), provides: The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. § 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B), provides that such regulation shall: specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b) (1) of section 1311 of this title shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilitites involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality enviroment impact (including energy requirements), and such other factors as the Administrator deems appropriate; § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B), provides: As soon as practicable, but in no case more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Administrator shall propose and publish regulations establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one hundred and twenty days after publication of such proposed regulations, such standards with such adjustments as he deems appropriate. The Administrator shall, from time to time, as technology and alternatives change, revise such standards following the procedure required by this subsection for promulgation of such standards. Standards of performance, or revisions thereof, shall become effective upon promulgation. In establishing or revising Federal standards of performance for new sources under this section, the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements. . No. 74-2096, Order of September 26, 1977. . NRDC had filed its original petition on September 28, 1978, in the D.C. Circuit. The utilities and NRDC then filed petitions for review in this court. Upon motion, the D.C. Circuit transferred NRDC’s first petition to this court. NRDC v. EPA, No. 78-1929 (D.C.Cir. Dec. 21, 1978) . . The Deputy Assistant Administrator for Water Enforcement, who made the recommendation in Cincinnati Gas and Electric Co., acts only as the principal adviser to the Administrator of EPA on matters of enforcement. 40 CFR § 1.31. Thus, his decision is not binding on the Administrator. In like vein, we held that a decision of the Provider Reimbursement Review Board, an in-house-board, does not bind the Secretary of HEW, who can modify or reverse that decision on his own motion. Fair-fax Hospital Ass’n, Inc. v. Califano, 585 F.2d 602 (4th Cir. 1978). See also, e. g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (NLRB rejected examiner’s findings); Environmental Defense Fund, Inc. v. EPA, 489 F.2d 1247 (D.C.Cir. 1973) (Administrator decided contrary to the conclusion of the Hearing Examiner regarding the banning of DDT); Adolph Coors Co. v. FTC, 497 F.2d 1178 (10th Cir. 1974) (FTC overruled Administrative Law Judge’s finding that Coors had not violated § 5 of the Federal Trade Commission Act); Peterson v. Gardner, 391 F.2d 208 (2d Cir. 1968), (Appeals Council can rule contra to decision of the Hearing Examiner); Alcoa Steamship Co. v. Federal Maritime Commission, 321 F.2d 756 (D.C.Cir. 1963) (Maritime Commission rejected recommendation of examiner and approved pooling agreement); Bras-well Motor Freight Lines v. USA, 275 F.Supp. 98 (W.D.Texas 1967), aff’d 389 U.S. 569, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968) (ICC rejected recommendation of its examiner). . The utilities also rely upon EPA’s comments published with its amendment of the variance provisions in 40 CFR Part 423. 43 FR 40324 (Sept. 22, 1978), typographically corrected at 43 FR 44847 (Sept. 29, 1978). The comments no more than reflect the ruling in Louisiana-Pacifíc, supra, and are not contrary to our mandate in Appalachian Power.

Republic Steel Corp. v. Costle

CELEBREZZE, Circuit Judge. This case is before the Court on remand from the Supreme Court for further consideration in light of the Clean Water Act of 1977, P.L. 95-217. In our previous decision we held that the Administrator of the United States Environmental Protection Agency (EPA) had improperly vetoed issuance of a water pollution permit to petitioner Republic Steel Corporation (Republic) for its Canton, Ohio, mill. Republic Steel Corp. v. Train, 557 F.2d 91 (6th Cir. 1977) (hereinafter referred to as Republic Steel I). Contra, United States Steel Corp. v. Train, 556 F.2d 822, 854-55 (7th Cir. 1977). The Administrator had objected to the permit, originally proposed by the Ohio Environmental Protection Agency (OEPA), on the ground that it improperly waived a July 1, 1977, statutory deadline for compliance with federal effluent standards. Under § 301(b)(l)(A)(i) of the Federal Water Pollution Control Act as amended in 1972 (FWPCA) industrial dischargers were required to comply “not later than July 1, 1977” with “effluent limitations for point sources [requiring] the application of the best practicable control technology currently available, as defined by the Administrator pursuant to § 304(b)” of the Act. At the time of our previous decision EPA had not yet promulgated final regulations defining “best practicable technology currently available” (BPT) for categories of dischargers including iron and steel manufacturing, despite a requirement in § 304(b)(1) of the Act that such regulations be published by October 18, 1973. We reluctantly concluded that EPA’s failure to timely define BPT precluded the Administrator from imposing a July 1,1977, compliance deadline, since Congress had apparently established promulgation of regulations under § 304(b) as a necessary precondition for imposition of the deadline in § 301(b)(l)(A)(i). Our decision was designed “to relieve the discharger of the unfair consequences” of being forced to comply with the deadline in the absence of applicable standards for guidance. 557 F.2d at 97. This Court stayed its mandate in Republic Steel I pending the EPA’s petition for a writ of certiorari from the Supreme Court. Shortly after EPA filed its petition for cer-tiorari, Congress enacted the Clean Water Act of 1977, which substantially revised FWPCA. In the wake of that enactment, the Supreme Court granted EPA’s petition, vacated our judgment in Republic Steel I, and remanded the case to this Court for further consideration in light of the new law. Costle v. Republic Steel Corp., 434 U.S. 1030, 98 S.Ct. 761, 54 L.Ed.2d 778 (1978). We have reviewed the 1977 Act and conclude that its provisions have effectively overruled our previous decision. Although neither § 301(b)(l)(A)(i), requiring industrial dischargers to achieve BPT no later than July 1,1977, nor § 304(b), requiring EPA to define BPT by October 18, 1973, were amended by the 1977 Act, Congress did add a new § 309(a)(5)(B) providing as follows: (B) The Administrator may, if he determines (i) that any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements under this Act or in any permit issued under this Act, has acted in good faith, and has made a commitment (in the form of contracts or other securities) of necessary resources to achieve compliance by the earliest possible date after July 1, 1977, but not later than April 1, 1979; (ii) that any extension under this provision will not result in the imposition of any additional controls on any other point or nonpoint source; (iii) that an application for a permit under section 402 of this Act was filed for such person prior to December 31, 1974; and (iv) that the facilities necessary for compliance with such requirements are under construction, grant an extension of the date referred to in section 301(b)(1)(A) to a date which will achieve compliance at the earliest time possible but not later than April 1, 1979. The legislative history of this provision makes it abundantly clear that Congress intended the procedure outlined therein to be the exclusive avenue of relief from the dictates of a mandatory and unconditional July 1, 1977, deadline. The Senate Report expressly rejected the rationale of Republic Steel I: Under existing law there are no circumstances that justify a time for compliance extending beyond July 1,1977. The Administrator can only issue an enforcement order requiring compliance within 30 days or initiate civil or criminal action. Thus, the decision of the U.S. Court of Appeals for the Sixth Circuit in Republic Steel Corporation v. Train et a 1. and Williams, 557 F.2d 91, (6th Cir. 1977) was an incorrect interpretation of existing law. This amendment responds to the legitimate concern of dischargers who, despite good faith efforts, will not comply with the 1977 requirements. To accommodate this objective, the committee amended section 309(a) of the act to authorize the Administrator in his discretion, to pursue one of two new options with regard to a discharger out of compliance. ****** The committee believes that a case has been made in our hearings on this bill that some relief from penalties must be granted for those sources which have made a good faith attempt to comply with the deadlines in the statute but for justifiable reasons have been unable to do so. The committee considered but rejected the alternative of providing a case-by-case extension of the deadline set out in the statute. That alternative was rejected because the committee felt that such a case-by-case extension would not only burden the administrative process but that it would provide further opportunity for delay for those sources which are otherwise unable to make a legitimate case for additional time. Consequently, decisions by the Administrator pursuant to this new provision of law should not be the subject of administrative hearings and appeals- but rather, if the Administrator feels he cannot determine that a source meets the requirements of section 309(a)(5)(B) that he will immediately proceed under any of the other enforcement options set out in section 309. This authorization of limited flexibility granted to the Administrator will maintain the pressure for compliance while at the same time enabling the Administrator to use his discretion to grant any justifiable extension. Sen.Rep. 95-370, 95th Cong., 1st Sess. reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 4326, 4385, 4387. The import of the statute is now plain: the July 1, 1977, deadline cannot be waived by the courts. To the extent that noncompliance occurs despite good faith efforts as defined in § 309(a)(5)(B), relief is available only via discretionary extension of the deadline by the Administrator. Republic urges that mere addition of a new remedial procedure does not change the operation of the rest of the Act as we construed it in Republic Steel I. We are bound, however, to read the amendment together with the original provisions of the Act “as parts of an integrated whole.” Markham v. Cabell, 326 U.S. 404, 411, 66 S.Ct. 193, 90 L.Ed. 165 (1945). The unchanged sections and the amendment must generally be given “the most harmonious, comprehensive meaning possible” so that they do not conflict. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88 (1947). See also 1A Sutherland, Statutory Construction § 22.35 (1972). To insist on adherence to our earlier view would not only render § 309(a)(5)(B) largely meaningless, but also would defeat Congress’ clearly expressed intent in enacting that section. Moreover, the 1977 Act effectively responds to the concern we expressed in Republic Steel I that a discharger might suffer “unfair consequences” from EPA’s failure to timely promulgate relevant BPT regulations. Under prior law the Administrator had no clear statutory authority to extend the July 1, 1977, deadline and a dis-charger could be subjected to liability without any consideration for the reasons for his noncompliance. The new § 309(a)(5)(B) clearly permits the Administrator to extend the deadline where noncompliance was caused solely by the lack of BPT guidelines. We conclude, then, that the Administrator can properly object under § 402(d)(2)(B) of the Act to a proposed permit for a point source governed by § 301(b)(l)(A)(i) if that permit does not require attainment of BPT by July 1, 1977, unless the Administrator has determined that a time extension is warranted pursuant to § 309(a)(5)(B). This does not, however, end our inquiry. We must decide whether the 1977 Act may be applied in the context of this case, which was pending before the Supreme Court at the time the new law took effect. The general rule is that “a court is to apply the law in effect at the time of its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). This principle applies with full force to an appellate court in reconsidering a decision that has been vacated and remanded by the Supreme Court in light of an intervening change in the law. See Fruehauf Corp. v. Internal Revenue Service, 566 F.2d 574, 577-79 (6th Cir. 1977). The Clean Water Act of 1977 contains no “statutory direction or legislative history” militating against application of § 309(a)(5)(B) to pending cases. To the contrary, the statute is applicable to “any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements” of the Act. § 309(a)(5)(B) (emphasis supplied). Moreover, the Senate Report indicates that the § 309 procedure was intended to “codify” the informal EPA practice already in existence, under which the Administrator stood firm behind the 1977 deadline, but delayed enforcement where the discharger showed the requisite good faith efforts at compliance. See Sen.Rep. No. 95-370, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 4326, 4386. The Conference Report likewise indicates that under the 1977 Act “the existing enforcement policy of the EPA is continued.” H.R. Rep. No. 95-830, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin. News, pp. 4424, 4464. Nor do we think that application of current law would result in manifest injustice. If Republic has made good faith efforts at compliance with the law that have been delayed only by EPA’s failure to timely promulgate BPT standards, then the company will be eligible for an extension under § 309(a)(5)(B). There is nothing fundamentally unfair in predicating relief from the deadline on a showing to the responsible agency that the polluter has made a “reasonable attempt to comply with the mandates of the law.” Sen.Rep. No. 95-370, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. & Admin.News, pp. 4326, 4386. Indeed, to require anything less would work an injustice on the overwhelming majority of the nation’s major industrial dischargers who followed the law as best they could and met the statutory timetable. It would also flaunt the national commitment to attainment of water quality capable of supporting fish, wildlife and recreation by 1983, and the total elimination of pollutant discharges by 1985. 33 U.S.C. § 1251(a)(1) & (2). Application of current law is particularly favored where such matters of great national concern are at stake. Bradley, supra, 416 U.S. at 719-20, 94 S.Ct. 2006. The situation might be different if Republic could claim that its noncompliance was induced by administrative or judicial construction of § 301(b)(l)(A)(i) to the effect that the July 1, 1977, deadline was waived by EPA’s failure to promulgate BPT guidelines. See generally United States v. Pennsylvania Ind. Chem. Corp., 411 U.S. 655, 670-75, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). But in the years following enactment of FWPCA, EPA consistently took the official position that the statutory compliance date was absolute and that it was not waived by the absence of BPT guidelines. The first draft permit for the Canton mill issued by OEPA in June 1974 required compliance by September 1976. EPA’s position as to the Act’s time requirement was not challenged by a court of appeals until our decision in Republic Steel I on June 23, 1977 — only days before the July 1, 1977, deadline. Republic can hardly claim that its noncompliance was induced by that decision, since by even the most conservative estimates the necessary equipment would take many months to construct. Nor can the company maintain that it ever had a vested right in the result ordered in Republic Steel I, since our mandate there never took effect, and since the Supreme Court later vacated the judgment altogether. Cf. Bradley, supra, 416 U.S. at 720, 94 S.Ct. 2006. In any event, Republic does not seriously claim that its noncompliance with the July 1, 1977, deadline is the result of an honest belief that the deadline was invalid. Rather the company maintains that it was unable to meet the deadline despite good faith efforts, because of the absence of BPT guidelines from EPA. If this is true, then the new § 309(a)(5)(B) procedure can provide any justified relief. The petition for review is dismissed. . The case initially came before us on a petition for review of the Administrator’s action, pursuant to § 509(b)(1)(F) of the Federal Water Pollution Act, 33 U.S.C. § 1369(b)(1)(F). The particular action submitted for review was a decision by the Administrator under § 402(d)(2)(B) of the Act to “object to,” and thereby veto, issuance of a water pollution permit for the Canton mill as proposed by the Ohio Environmental Protection Agency. We note that the United States Court of Appeals for the Ninth Circuit has since ruled that § 509(b)(1)(F) does not convey jurisdiction on the courts of appeals to review permit vetoes by the Administrator under § 402(d)(2)(B). Washington v. E. P. A., 573 F.2d 583, 586-87 (9th Cir. 1978). This Court has already ruled contra, however, Ford Motor Co. v. E. P. A., 567 F.2d 661, 668 (6th Cir. 1977), and we adhere to our earlier view. See also Mianus River Preservation Comm. v. Administrator, E. P. A., 541 F.2d 899, 909 (2d Cir. 1976). . 33 U.S.C. § 1311(b)(l)(A)(i). . 33 U.S.C. § 1314(b)(1). . As of oral argument in this case (June 1978), EPA had still not promulgated final BPT guidelines for iron and steel manufacturing. In the absence of general standards, BPT has been determined on a case-by-case basis, either by the Administrator or by the responsible state agency. See, e. g., OEPA regulation EP-31-04(B)(1)(b) (1974). . 33 U.S.C. § 1319(a)(5)(B). . The Senate version of § 309(a)(5)(B) was adopted by the conference committee with only minor revision. H.R.Rep. No. 95-830, 95th Cong. 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 4424, 4463. . OEPA, which supported Republic’s petition in Republic Steel I, now takes the position that the 1977 Act requires that we uphold EPA’s position. . Prior to the 1977 Act, EPA did provide relief from the 1977 deadline on an informal basis. Under the “Enforcement Compliance Schedule Letter” (ECSL) program, the Administrator would agree to refrain from enforcement of the statutory deadline against certain dischargers who made good faith attempts at compliance. See Bethlehem Steel Corp. v. Train, 544 F.2d 657, 659-60 (3d Cir. 1976), cert. den., 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977). . The Senate Report indicates that § 309(a)(5)(B) was directed, in part, at dischar-gers whose noncompliance was caused by their inability to ascertain applicable standards, despite good faith attempts: The limited discretion granted to the Administrator by section 309(a)(5)(B) may only be exercised where the Administrator is able to determine that a discharger acted in good faith. The term “good faith” is generally understood to mean a reasonable attempt to comply with the mandates of law. Did the discharger attempt to determine what the applicable requirements were? When the required technology was generally known in the industry, but the discharger had some legitimate disagreements with the Agency on other points, did the discharger begin on an abatement program or conversely did the dis-charger delay the abatement program pending the outcome of lengthy administrative procedures? When the required technology was the subject of a legitimate dispute with the Agency, did the discharger take all other measures that it was capable of (such as segregating waste streams, necessary site preparation, and outfall construction) or did it delay these practices pending the outcome of lengthy administrative procedures? S.Rep. 95-370, 95th Cong., 1st Session, 1977 U.S.Code Cong. & Admin.News, pp. 4326, 4386 (emphasis supplied). The Ninth Circuit recently held that the Administrator could not veto a proposed permit for failure to require attainment of BPT by the discharger, where the Administrator had not yet promulgated applicable BPT guidelines. Washington v. EPA, 573 F.2d 583, 589-92 (9th Cir. 1978). The case is distinguishable in that here the Administrator did not object to the substantive effluent limitations in the proposed permit for the Canton mill — the objection related solely to the compliance schedule. In any event, the Ninth Circuit holding failed to consider the possible impact of the 1977 Act on the Administrator’s veto power under § 402(d)(2)(B). . The conference report contains language regarding “existing administrative and court orders” : It is the intent of the conferees that under the provision which allows the Administrator to establish a reasonable time in which to comply with an enforcement order, existing administrative and court orders which provide for attainment dates beyond April 1, 1979, continue in effect unless modified under these amendments. Therefore, the existing enforcement policy of the EPA is continued. H.R.Rep. No. 95-830, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin. News, pp. 4424, 4464. This language has no application to the instant case, since there are no “existing” administrative or court orders providing for attainment dates beyond April 1, 1979, for the Canton mill. . See note 8, supra. . We assume, as we must, that the Administrator will make the necessary determination with regularity and fairness. See United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926); K. C. Davis, Administrative Law Treatise § 11.06. Cf. Withrow v. Larkin, 421 U.S. 35, 47, 55, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). . According to the Senate Report, ninety percent of the nation’s major industrial dischar-gers were expected to meet the 1977 deadline. Sen.Rep. No. 95-370, 95th Cong. 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin. News, pp. 4326, 4333. . See, e. g., United States Environmental Protection Agency, Decision of the General Counsel # 4, in 1 Decisions of the Administrator and Decisions of the General Counsel [hereinafter “DGC”] 177, 181 (4-4-75), aff’d, Decision of the Administrator # 75-5, 1 DGC 136, 144 (12-5-75); Decision of the General Counsel # 11, 1 DGC 209, 210-11 (5-7-75); Decision of the General Counsel # 23, 1 DGC 305, 314 (7-3-75); Decision of the General Counsel # 26, 1 DGC 327, 328, 330-31 (7-24-75), aff’d Decision of the Administrator # 75-9, 1 DGC 106, 108-09 (9-30-75); Decision of the General Counsel # 45, 2 DGC 230, 232-36, aff’d, Decision of the Administrator # 75-10, 2 DGC 27 (8-10-76). See also United States Steel Corp. v. Train, 556 F.2d 822, 853-55 (7th Cir. 1977); Bethlehem Steel Corp. v. Train, 544 F.2d 657, 660 (3d Cir. 1976); 40 C.F.R. § 125.11(c) (promulgated 5-22-73). . Similar considerations would preclude any possible applicability of the ex post facto clause to this case. The existence of the July 1, 1977, deadline, as construed by EPA was an “operative fact” sufficient to provide fair warning to Republic. Dobbert v. Florida, 432 U.S. 282, 297-98, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). . The same rationale precludes any claim that noncompliance with the deadline was induced by OEPA’s agreement to a 42 month compliance schedule in the fall of 1975. Republic concedes that its duty to commence compliance measures attached prior to that agreement. See Republic Steel I, 557 F.2d at 94. . We do not mean to suggest that Republic may in any sense be entitled to an extension as a matter of law. The decision on whether or not to grant an extension is committed to the Administrator’s discretion, based on his assessment of the factors listed in § 309(a)(5)(B). Sen.Rep. No. 95-370, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin. News, pp. 4326, 4386-87. See Quarles, Impact of the 1977 Clean Water Act Amendments on Industrial Dischargers, Env.Rep.Monograph No. 25 at 2 (1978). See generally Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).

Save Our Invaluable Land (Soil), Inc. v. Needham

McWILLIAMS, Circuit Judge. This is a suit to enjoin the Corps of Engineers from constructing the Hillsdale Dam on the Big Bull Creek in Miami County, Kansas. The action was instituted by Save Our Invaluable Land (SOIL), Inc., a non-profit organization organized under the laws of Kansas, whose members are, in the main, landowners who reside in the area of the proposed dam site. The gist of the complaint is that the Corps of Engineers has not complied with the requirements of the Federal Water Pollution Control Act, the National Environmental Policy Act, and the Water Supply Act. Named as parties defendant, in addition to the Corps of Engineers, were various administrative officers of the Environmental Protection Agency. By answer the federal defendants alleged compliance with the several acts of Congress with which we are here concerned, and attached to the answer a copy of the final Environmental Impact Statement (EIS) prepared by the Corps of Engineers in November 1971, and filed with the Council on Environmental Quality on February 2, 1972. Trial of this matter was to the court, sitting without a jury, and after a four-day trial the judge found in favor of the defendants and dismissed the action. The trial court made elaborate findings and conclusions, consisting of some 43 pages. SOIL now appeals. We affirm. On appeal SOIL raises essentially three points: (1) the trial court erred in finding that Section 102(b)(3) of the 1972 Amendments to the Federal Water Pollution Control Act did not apply to the Hillsdale Dam; (2) the trial court erred in concluding that the Corps’s EIS met the requirements of the National Environmental Policy Act of 1969, and that the Corps otherwise met the requirements of the Fish and Wildlife Coordination Act of 1958; and (3) the trial court erred in concluding that the inclusion of storage for water supply as a project purpose met the requirements of the Water Supply Act of 1958, as amended. We shall discuss these several matters seriatim. I. 1972 Amendments to the Federal Water Pollution Control Act SOIL initially argues that the trial court erred in holding that Section 102(b)(3) of the 1972 Amendments to the Federal Water Pollution Control Act did not apply to the Hillsdale Dam. That section, which appears as 33 U.S.C. § 1252(b)(3), reads as follows: (3) The need for, the value of, and the impact of, storage for water quality control shall be determined by the Administrator, and his views on these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage. The above quoted statute needs to be set in a bit of historical context. Prior to the 1972 amendments, storage of water for the purpose of controlling the quality of a stream was one method, though not the only one, authorized by Congress in its attack on the problem of water pollution. Under this particular approach water was stored to be released when the natural flow in a stream was low, thereby augmenting the stream flow and diluting the pollution entering the stream below the storage facility. This low flow augmentation did nothing to eliminate pollution, as such, but was only designed to keep pollution at acceptable levels. In 1972 Congress shifted the emphasis to an elimination of the so-called point sources of pollution. Illustrative of this changed approach to the water pollution problem is 33 U.S.C. § 1252(b)(1), which reads as follows: (b)(1) In the survey or planning of any reservoir by the Corps of Engineers, Bureau of Reclamation, or other Federal agency, consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source. The Hillsdale Dam was authorized by Congress in 1954 as one segment of a nine-part reservoir system in the Osage-Marias des Cygnes River Basin in Kansas. In 1961, and again in 1966, the project was deferred for further study. The restudy was finally completed and the project entered the advanced engineering and design phase with Congress appropriating funds for such planning for fiscal years 1968 through 1972. On August 25, 1972, Congress appropriated funds to initiate construction of the dam. The 1972 Amendments to the Federal Water Pollution Control Act became law on October 18, 1972. It was in this setting that the trial court held that 33 U.S.C. § 1252(b)(3) did not apply to the Hillsdale Dam. Under the circumstances, we agree. In the instant ease one of the purposes of the Hillsdale Dam was admittedly water quality control. Other purposes were flood control, water supply, recreation, and fish and wildlife. And each of these purposes, as well as other matters, was taken into consideration in arriving at a final cost/benefit ratio. It is SOIL’S position that the Corps of Engineers failed to comply with 33 U.S.C. § 1252(b)(3) in that the EPA Administrator did not determine the need for, the value of, and the impact of storage for water control, nor were his views on these matters set forth in “any report or presentation to Congress proposing authorization or construction of any reservoir including such storage,” as mentioned in the statute. As indicated, both the Corps, as well as the EPA, are of the view that § 1252(b)(3) does not apply to the Hillsdale Dam inasmuch as the authorization for the dam and its construction had cleared Congress before the enactment of § 1252(b)(3). As above indicated, we are of the view that § 1252(b)(3) does not apply to the Hills-dale Dam. In support thereof, see, for example, Cape Henry Bird Club v. Laird, 359 F.Supp. 404 (W.D.Va.1973), aff’d on appeal, 484 F.2d 453 (4th Cir. 1973). In its affirmance the Fourth Circuit held that neither § 1252(b)(1) nor (3) applied to the dam there under consideration, because “[t]he dam is neither in the survey or planning stage, nor is it before Congress for authorization or construction. Those stages have long passed.” The foregoing applies to the instant case with equal vigor, even though actual construction of the Hillsdale Dam was delayed by temporary impoundment of budgeted funds. The issue is not whether the Corps because of such delay could have complied with § 1252(b)(3), if it chose to do so. Rather the issue is whether under the circumstances, the Corps, and the EPA, were required to comply with § 1252(b)(3). We think they were not. In further support of our holding, see also Environmental Defense Fund v. Tennessee Valley Authority, 371 F.Supp. 1004 (E.D. Tenn.1973), aff’d, 492 F.2d 466 (6th Cir. 1974). To the same effect, see Sierra Club v. Froehlke, 392 F.Supp. 130 (E.D.Mo.1975), where that court flatly declared that “the plain language of the statute [33 U.S.C. § 1252(b)(1) and (3)] indicates that it is applicable only to projects which are in the planning or preauthorization stages.” We do not regard State of Ohio ex rel. Brown v. Callaway, 497 F.2d 1235 (6th Cir. 1974) to be apposite to the present problem. There the problem was primarily one of intervention. In any event, we believe that the result reached by the Fourth Circuit in Gape Henry Bird Club is the proper one and more properly fits the particular facts of our case. As indicated, the interpretation we have given § 1252(b)(3) concerning its applicability to Hillsdale Dam is the interpretation which has heretofore been adopted by both EPA and the Corps. The interpretation given a statute by the administrative agency charged with its administration is entitled to weight. Such fact fortifies us in our conclusion that the interpretation which we give § 1252(b)(3) is “ ‘correct,’ to the extent that any particular interpretation of a complex statute such as this is the ‘correct’ one.” Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). II. Suf f iciency - of the Environmental Impact Statement (EIS) SOIL contends that the Corps has not complied with 42 U.S.C. § 4332(A)(B) and (C). Sections (A) and (B) are, in a sense, declarations of policy, and to effectuate such policies, Section (C) requires that an environmental impact statement be filed on all major federal actions, and lists five specific matters to be covered in such statement. Section (C) is apparently designed to make certain that there be compliance with the statement of policy announced in Sections (A) and (B). In the instant case the Corps filed a 57-page EIS, which included some 32 pages of comments by other governmental agencies, both state and federal, together with the Corps’s response to each comment. Such was not enough, asserts SOIL. We disagree. Judicial review of an EIS is limited to a consideration of the following: (1) does the EIS discuss all of the five procedural requirements listed in 42 U.S.C. § 4332(C); (2) does the EIS constitute a good faith compliance with the demands of NEPA; and (3) does the statement contain a reasonable discussion of the subject matter involved in the five respective areas? Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974) and National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1973). Thus, in a real sense, an EIS is to be tested by the concepts of “good faith” and a “reasonable” discussion of the five mandated areas of subject matter. Perfection is not the test. Environmental Defense Fund v. Corps of Engineers of the United States Army, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1972). Nor should the courts in evaluating an EIS engage in hindsight judgment by way of second guessing. Judged by the foregoing standard, our study of the EIS filed by the Corps in the instant case convinces us, as it did the trial court, that there was compliance with 42 U.S.C. § 4332(A)(B) and (C). In sum, the Corps did consider the impact on the environment of the construction of the Hillsdale Dam, possible alternatives, and ways of easing the impact on the environment from the building of the dam. In preparing its EIS the Corps did not ignore the Fish and Wildlife Coordination Act of 1958, 16 U.S.C. § 661, et seq. Also, the cost/benefit ratio was in our view adequately covered, when the EIS is considered in its entirety. Sierra Club v. Stamm, 507 F.2d 788 (10th Cir. 1974). We think the EIS was sufficient. III. Water Supply Act of 1958 SOIL’S final contention is that the Corps has failed to comply with the Water Supply Act of 1958, as amended. 43 U.S.C. 390b. Section 390b declares it to be the policy of the Congress to recognize that the primary responsibility for developing water supplies for local domestic use rests on “the States and local interests.” In furtherance of this policy § 390b(b) provides that prior to the construction of any federal project which includes water supply provisions for present demands, “State or local interests shall agree to pay for the cost of such provisions.” As regarding future water demands, that same section further provides that a certain per cent of the “total estimated cost of any project may be allocated to anticipated future demands when the State or local interests give reasonable assurance, and there is reasonable evidence, that such demands for the use of such storage will be made within a period of time which will permit paying out the costs allocated to water supply within the life of the project.” As mentioned at the outset, one of the purposes of the Hillsdale Dam is to store water for domestic use by the surrounding communities. It is agreed by the parties that, insofar as present demand is concerned, there is an existing contract between the United States and the State of Kansas acting through the Kansas Water Resource Board which requires state and local interests to pay for the cost of storage to meet such present demand. The dispute here is over whether the State and local interests have given the Corps reasonable assurances as to anticipated future demand, and whether there is reasonable evidence on the basis of which the Corps could conclude that demands will be made within a period of time which will permit paying out the allocated costs within the life of the project. This particular matter was fully explored at the trial of this matter, and the trial court concluded, in effect, if not in so many words, that the Corps did have “reasonable assurances,” and that there was “reasonable evidence” that there would be such future demand. SOIL suggests that this finding is not supported by the record and is indeed clearly erroneous. We do not agree. As indicated, it is agreed that State and local interests have contractually agreed to pay for the project insofar as present demand is concerned. We think the record indicates that the Corps was also given “reasonable assurances” by these same State and local interests that there will be a future demand for water which will permit paying out the allocated costs within the life of the project, and that there was “reasonable evidence” to indicate that there would be such demand. In this regard we refer to the letter from the Kansas Water Resource Board, dated August 2, 1973, wherein the Board advised the Corps that it would have need for the project’s anticipated water supply. That letter itself sets forth data which establishes the factual basis for the prediction. Moreover, a contract was later entered into between the State and local interests and the United States concerning both present and future water supply, and the payment thereof. All things considered, then, the record shows compliance with the Water Supply Act of 1958. Judgment affirmed.

Cape Henry Bird Club v. Laird

PER CURIAM: We believe that the district court correctly decided the issues raised in this appeal, and we affirm on the basis of the district court’s opinion, 359 F.Supp. 404. In our view, sections 1252(b)(1) and (b)(3) of the Federal Water Pollution Control Act Amendments of 1972, by their very terms, are not applicable to this project. The dam is neither in the survey or planning stage, nor is it before Congress for authorization or construction. Those stages have long since passed. Inasmuch as the requirements of the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., are applicable to this project, the district judge quite appropriately ordered the Corps of Engineers to supplement their final Environmental Impact Statement so as to include the view of the Administrator of the Environmental Protection Agency. His view was that the 1972 Amendments were applicable and that no value for water quality storage could be assigned as a benefit in the dam project. The Environmental Impact Statement will appropriately reflect those views. Affirmed. . 33 U.S.C. 1252. Those sections provide that: (b) (1) In the survey or planning of any reservoir by the Corps of Engineers, Bureau of Reclamation, or other Federal agency, consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source. (b) (3) The need for, the value of, and the impact of,fr storage for water quality control shall be determined by the Administrator, and his views on these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage.

National Sea Clammers Ass'n v. City of New York

OPINION OF THE COURT GIBBONS, Circuit Judge. This case comes before us on an appeal by plaintiffs National Sea Clammers Association and Gosta Lovgren from a final order dismissing their complaint. Plaintiffs are an association whose members make their living harvesting fish and shellfish from the water and ocean beds of the Atlantic Ocean near New York and New Jersey, and an individual similarly employed. They sue on behalf of themselves and a class comprising all others similarly situated. Defendants are various federal, state, and local officials and governmental departments that are charged with environmental protection or that are responsible for sewage treatment and disposal. Plaintiffs’ complaint alleged that defendants discharged or permitted the discharge of certain nutrient-rich sewage and toxic wastes into the Atlantic Ocean or its tributaries. It further alleged that in 1976 these discharges caused a massive and rapid growth of algae from Long Island to Cape May and extending from a few miles to twenty miles offshore. When this algal mass bloomed and died it allegedly settled on the ocean’s floor, and its subsequent decomposition created an anoxia, an oxygen deficiency, in the water near the ocean’s floor, which caused death and other adverse effects on marine life, particularly on those life forms, such as shellfish, ill able to flee the afflicted area. Plaintiffs alleged violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4361 (1976), the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I), the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1444 (1976), the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1976), the New York Environmental Conservation Law, N.Y. Environ. Conserv. § 1-0101 (McKinney 1973), the New Jersey Conservation and Development Law, N.J.S.A. 13:10-1 (1968), the federal common law of nuisance, and the fifth, ninth, and fourteenth amendments to the Constitution. Defendants moved for dismissal of all claims on the grounds that the court lacked subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), or that the plaintiffs had failed to state a claim on which relief could be granted, see Fed.R.Civ.P. 12(b)(6). The complaint seeks injunctive relief, damages, mandamus to compel compliance with statutory duties, the imposition of fines and penalties for certain violations, the award to plaintiffs of one half of the fines assessed, and attorneys’ fees. The trial court, holding that the submission of affidavits converted the motions into motions for summary judgment, granted defendants’ motions as to each cause of action alleged. The complaint was dismissed, with prejudice, on all claims except for two said to arise under state law which were dismissed without prejudice. This appeal followed. We discuss separately the various legal theories which were pleaded and rejected. I. The Federal Water Pollution Control Act The district court held that plaintiffs’ failure to comply with the notice requirements of the Federal Water Pollution Control Act (FWPCAA) deprived it of jurisdiction to entertain plaintiffs’ claim that defendants violated their duties under that Act. Section 505(a) of the FWPCAA grants to any private citizen the right to sue to enforce compliance with effluent standards or limitations, 33 U.S.C. § 1365(a)(1), or to compel the Administrator of the Environmental Protection Agency to perform nondiscretionary duties. Id. § 1365(a)(2). Section 505(b) requires that in suits brought pursuant to subsection (a), 60 days’ notice be given to specified parties to the suit. Id. § 1365(b). Regulations promulgated by the Administrator define the type and specificity of the notice required. 40 C.F.R. § 135.3(A) (1979). The district court held that the notice provision of section 505(b) was a jurisdictional prerequisite to suit, such that plaintiffs’ failure to give notice barred suit under section 505(a). 33 U.S.C. § 1365(a). This court has rejected the theory that substantial compliance with the notice requirement suffices to give the court jurisdiction under section 505(a). We require instead strict adherence to the Act’s notice provisions for suits brought pursuant to section 505(a). Loveladies Property Owners Ass’n v. Raab, 430 F.Supp. 276, 280-81 (D.N.J. 1975), aff’d mem., 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). We do not depart from that holding. We note, however, that it would be entirely permissible for this court to adopt the pragmatic approach to interpreting the 60-day notice provision by which we would merely require that sixty days elapse prior to district court action on the complaint. The purpose behind the notice -provision, as the legislative history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy the alleged violation prior to judicial action. Thus, in the instant case, we could adopt the position that the failure of the Administrator to take remedial action during the sixty days after receiving notice of the suit permitted the suit to go forward in district court. We need not pass upon this proposition, however, because of our analysis of the independent significance of section 505(e), 33 U.S.C. § 1365(e), the savings clause of the citizens’ suit provision. The district court erred in holding that failure to comply with section 505(b), 33 U.S.C. § 1365(b), created an absolute bar to plaintiffs’ suit to enforce the provisions of the Act. The citizens’ suit provision of the FWPCAA was modeled on a similar provision in the Clean Air Act. Compare Clean Air Act § 304, 42 U.S.C. § 7604 (1976) with Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365 (1976 & Supp. I). The slight difference in wording of the citizens’ suit provision of each act reflects only the attempt by Congress to ensure that the FWPCAA would comply with the holding of the Supreme Court in the then-recent case of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Senate version of the bill would have permitted any person to sue to enforce the terms of the Act. The House bill would have limited citizens’ suits narrowly to suits brought by two types of plaintiffs, citizens of the geographic area who were directly affected by the alleged violation, or groups of persons who, because actively engaged in the administrative process, had shown an interest in the area or the controversy. The Conference Committee chose a middle path, limiting the section 505(a) remedy to citizens, but defining citizen broadly in section 505(g). The intent of Congress was thus to provide generally for citizens’ suits which would not be subject to the jurisdictional amount requirement and yet would provide for private attorney general enforcement to the maximum degree permitted by the Court’s Sierra Club decision. It is clear, however, from the legislative history that the section 505(a) remedy is not exclusive. That section was intended to give federal courts jurisdiction over suits by private attorneys general seeking to enforce the provisions of the Act. Thus, the notice provision of section 505(b) only applies when a non-injured member of the public sues to enforce the Act. For the purposes of such a suit, Congress created the section 505(a) remedy, permitting suit not subject to the normally required minimum jurisdictional amount. See W. Rodgers, Environmental Law § 1.13 (1977) (discussing prototype citizens suit provisions of Clean Air Act). The section 505(a) remedy, however, is not the exclusive vehicle for enforcement of the FWPCAA by private citizens. A private party who is injured by the alleged violation, as these plaintiffs allege they were, has an alternate basis for suit under section 505(e), 33 U.S.C. § 1365(e), and the general federal question jurisdiction of the Judicial Code, 28 U.S.C. § 1331 (1976). Section 505(e) is a savings clause that preserves all rights to enforce the Act or seek relief against the Administrator. Coupled with the general federal question jurisdiction it permits this suit to be brought by these parties. Moreover, unlike the private attorneys general provision of section 505(a), section 505(e) provides an independent remedy for injured parties unburdened by the notice requirements of section 505(b). All parties and the court below acknowledge that the federal courts differ on the issue of whether section 505(e) authorizes prívate enforcement of the Act alternate to that authorized in section 505(a). The more persuasively reasoned cases, however, support our conclusion that section 505(e) was intended to preserve the rights of injured parties to sue to enforce the terms of the Act notwithstanding the expansion of remedies to non-injured parties contained in section 505(a). They recognize that the effect of section 505(a) is to give the district court jurisdiction over a new class of plaintiffs, while section 505(e) preserves jurisdiction over the preexisting right of injured parties to sue to enforce the Act. By relying on the Clean Air Act, Congress made clear its intention to involve citizens in the enforcement of the Act. The Second Circuit, in an opinion written by Judge Adams of this court sitting by designation, relied upon the Act’s legislative history to support its conclusion that failure to give notice was not an absolute bar to suit under the FWPCAA. Moreover, prior to the district court’s opinion in the instant matter, Chief Judge Clarkson Fisher had adopted the section 505(e) jurisdiction analysis as well. In Township of Long Beach v. City of New York, 445 F.Supp. 1203 (D.N.J. 1978), Chief Judge Fisher held that plaintiffs who had failed to comply with the section 505(b) notice requirement could sue in district court under section 505(e) and the general federal question jurisdiction, because they were injured parties suing on their own behalf and alleged damage in excess of the normal jurisdictional amount. Id. at 1209-10. We must therefore reverse the holding of the district court that it lacked jurisdiction to entertain plaintiffs’ claims under the FWPCAA. We turn now to the issue of whether plaintiffs have a cause of action independent of that created in section 505(a) on which they may bring suit under section 505(e). In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court established a four part test for finding an implied private cause of action. Since Cort, the Supreme Court has further refined the test to be applied in determining whether a private right of action arises under any given federal statute. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Court broadened the Cort test and held that Congress’ failure expressly to consider private remedies did not preclude a holding that Congress intended to imply one. Id. at 694, 99 S.Ct. at 1956. More recently, in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), the Court noted that the Cort factors are merely relevant to the inquiry of whether a private remedy is implicit. Id. at 575, 99 S.Ct. at 2489. There, the Court stated that in Cort v. Ash, the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Id. (emphasis added). Thus, the Court noted, the Cort factors are simply designed to guide the courts in determining legislative intent. Finally, this Term in Transamerica Mortgage Advisors, Inc. v. Lewis, - U.S. -, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), the Court applied the Touche Ross test, noting that the issue of “whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction.” Id. at -, 100 S.Ct. at 245. It held that once legislative intent is discovered, countervailing considerations arising from strict application of the Cort factors become irrelevant. Id. at - - -, 100 S.Ct. at 248-249. Bearing in mind that the single relevant inquiry is the intent of Congress, we turn to the Cort v. Ash factors to guide our analysis of the legislative intent. Applying these factors to the instant case, we hold that a private cause of action is available to these plaintiffs under the FWPCAA. First, we have already held that one of the purposes behind the passage of the FWPCAA was the protection of individuals from injury caused by the polluting activities of others. Thus, although the Act specifically grants a remedy to non-injured persons suing on behalf of the public, it is clear that the “class for whose especial benefit the statute was enacted” must have been individuals likely to suffer actual injury by the pollution. Jurisdiction over suits by them is preserved by the savings clause. Although section 505(a) of the Act permits suits by private attorneys general who have suffered no direct economic harm, the statute clearly was intended to protect this particular class of actually injured persons as well. Plaintiffs are members of a class that takes its living from the sea and that is especially hurt by pollution. The general purpose clause of the Act includes a statement that the national goal shall be the attainment of that “water quality which provides for the protection and propagation of the fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a)(2). Although such protection will of course benefit the public at large, the general purpose clause supports our conclusion that the statute was intended to benefit the class of which plaintiffs are a part, and that a private remedy was intended to be created in their behalf. As to the second factor in the Cort analysis, nothing in the legislative history suggests that the section 505(a) remedy created on behalf of private attorneys general was intended to be exclusive. Indeed, the savings clause broadly preserves all rights to sue “under any statute,” language which given the legislative history of the section supports the existence of alternate remedies under the Act. We reject the argument that the legislative history precludes finding an implied private right of action under the FWPCAA. The Report that accompanied the Senate’s original version of the bill noted that the savings clause preserved rights to sue “under any other law.” S.Rep. No. 92-414 at 81, Legislative History at 1499. We are not persuaded that this paraphrase of the wording of the Act was intended to preclude the finding of a private remedy under the Act. The wording of the savings clause itself makes clear Congress’ intent to preserve the rights of individuals to sue under any statute or the common law. The third Cort factor was expanded by the Supreme Court last Term in Cannon. There the Court noted that when [a private right of action] remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute. 441 U.S. at 703, 99 S.Ct. at 1961. Although not necessary to the accomplishment of the purposes of the FWPCAA, implying a private remedy on behalf of these plaintiffs certainly would be “helpful” to the effectuation of those purposes. Moreover, under the Cort analysis, a private remedy would be consistent with the purposes of the Act in general and with the purpose of protecting and encouraging propagation of marine life in particular. See 33 U.S.C. § 1251(a)(2) (general purpose clause). Finally, the fourth inquiry in the Cort analysis also points to Congress’ intent to permit this private cause of action. Far from being an area of traditional state concern, water pollution of the Atlantic Ocean is an interstate phenomenon of federal concern as to which an implied private remedy in the federal courts should not be denied. Thus, using the Cort factors as a guide, we have examined the statute and its legislative history in order to discover the legislative intent. See Transamerica Mortgage Advisors, Inc. v. Lewis, - U.S. -, -, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). We therefore hold that Congress intended to permit the federal courts to entertain a private cause of action implied from the terms of the FWPCAA, preserved by the savings clause of the Act, on behalf of individuals or groups of individuals who have been or will be injured by pollution in violation of its terms. Having so held, we reject the federal government defendants’ sovereign immunity argument. The 1976 amendments to section 1331 of title 28 make clear that sovereign immunity has been waived in all suits by plaintiffs seeking injunctive relief against federal agencies or officers. Whether damages can be recovered from the federal government is a separate question to which the Federal Tort Claims Act speaks. See Part VII, infra. We must therefore reverse the district court’s dismissal of the FWPCAA claims. II. The Marine Protection, Research & Sanctuaries Act The Marine Protection, Research & Sanctuaries Act, 33 U.S.C. §§ 1401-1444 (1976) (MPRSA or Ocean Dumping Act) regulates the transporting and dumping of certain material into the open waters of the ocean. Id. § 1401. The Act defines the prohibited material to include dredged ma- terial, solid waste, sewage and sewage sludge, and provides for an absolute cessation of dumping of sewage sludge by December 31, 1981. Plaintiffs alleged four separate violations of the MPRSA, all of which were dismissed on the ground that plaintiffs’ failure to give notice barred suit in district court. Like the FWPCAA, the MPRSA provides that citizens’ suits may be brought after giving 60 days’ notice and contains a savings clause preserving all other rights to seek relief. Although the wording of the citizens’ suit provision of the MPRSA differs slightly from the FWPCAA provision, the jurisdictional analysis is the same. Thus, because these plaintiffs have not complied with the notice requirement of the citizens’ suit provision, their suit under section 1415(g)(1), which governs private attorney general suits by non-injured persons, is barred. However, because they allege that they have suffered direct injury by virtue of the defendants’ violations of the Act, jurisdiction over their suit to enforce the provisions of the MPRSA is preserved by the savings clause. Moreover, a private cause of action to enforce the terms of the Act may be implied with respect to these injured plaintiffs. For the purposes of this analysis, the statutory provisions and legislative histories of the. MPRSA and FWPCAA are virtually indistinguishable. Thus we hold that the district court had jurisdiction to entertain this suit by these plaintiffs pursuant to the savings clause of the MPRSA and that a private cause of action to enforce the terms of the Act may be implied on behalf of these injured parties. We must therefore reverse the judgment of the district court dismissing the plaintiffs’ MPRSA claims. III. The Rivers and Harbors Act (Refuse Act) Plaintiffs also allege that federal defendant Army Corps of Engineers (ACE) and the state defendants violated section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1976) (The Refuse Act). The Refuse Act makes it unlawful to discharge or permit to be discharged “any refuse matter of any kind or description whatever other than that flowing from streets and sewers . . . into any navigable water of the United States, or into any tributary [thereof].” Id. The district court dismissed this part of the complaint. We affirm. The Rivers and Harbors Act is limited by its terms to enforcement by the United States Attorneys. 33 U.S.C. § 413 (1976). The majority of courts, and the courts of this circuit that have addressed this issue, have held that the Act precludes private suits and have thus refused to find an implied private cause of action. Red Star Towing & Transp. Co. v. Dept. of Transp., 423 F.2d 104, 105 (3d Cir. 1970) (Act enforced by penal sanctions only); Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1211-12 (D.N.J.1978) (rejecting private cause of action); see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 85-87 (2d Cir. 1972) (§ 413 delegates enforcement to Department of Justice; private party may not force prosecution under § 407); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1279-80 (D.Conn.1976) (Act protects public at large rather than private group of individuals), aff’d mem. sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Anderson v. Norfolk & Western Ry., 349 F.Supp. 121, 122 (W.D.Va.1972) (§ 413 delegates enforcement to United States Attorneys; Act precludes qui tarn enforcement). We adhere to the view that enforcement of the Refuse Act is limited to actions by the United States Attorneys. Therefore the dismissal of plaintiffs’ Refuse Act claims must be affirmed. IV. The Federal Common Law of Nuisance In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), a unanimous Supreme Court recognized that there is a federal common law cause of action to abate pollution of interstate ambient water, notwithstanding any relief available under the FWPCAA and held that such a cause of action presented a federal question over which the district courts had section 1331 jurisdiction. The district court refused to extend the cause of action to private litigants and dismissed plaintiffs’ common law nuisance claim. In so holding, the court relied on holdings by other federal district courts that only governmental agencies can sue for relief from a public nuisance. We hold that the common law nuisance remedy recognized in Illinois v. City of Milwaukee is available in suits by private parties. The Court stated explicitly in Illinois that although both parties to that suit were governmental, “it is not only the character of the parties that requires us to apply federal law.” Illinois v. City of Milwaukee, 406 U.S. at 105 n.6, 92 S.Ct. at 1393 n.6. Rather, the Court noted that “where there is an overriding federal interest in the need for a uniform rule of decision . we have fashioned federal common law.” Id. In the instant case, plaintiffs are suing for damages to interstate ambient water, an issue as to which there is a clear and overriding federal interest in uniformity. There is no question but that the interstate pollution here alleged is a problem calling for the application of a uniform federal standard. Relegating these litigants to possibly conflicting New York and New Jersey nuisance standards would ignore the clear intent of the Supreme Court to federalize those standards and would undermine that federal uniformity. These plaintiffs have sufficiently alleged pollution of interstate waters. In order to give full effect to the federal common law of nuisance recognized in Illinois, private parties should be permitted, and indeed encouraged, to participate in the abatement of such nuisances. Courts have already extended the Illinois remedy to the federal government and to municipalities, and one district court has applied it on behalf of private litigants. The effectuation of the purposes of the Illinois v. City of Milwaukee remedy and the fulfillment of the Supreme Court’s intent in creating that remedy lead us to conclude that it is available to these private litigants who have been injured by the effects of the polluting activities of these defendants. While Illinois v. City of Milwaukee did not address this specific issue, we are convinced that the Court would apply the mode of analysis of Lincoln Mills and would look to the Restatement formulation as an appropriate source for a federal rule. These plaintiffs have alleged sufficient individual damage to permit them to recover damages for this essentially public nuisance. The Restatement (Second) of Torts defines a public nuisance as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B (1979). A private party may recover damages for a public nuisance if, while exercising the common right, he has suffered damages different in kind from those suffered by the public. Id. § 821C. The Restatement formulation encompasses the injury alleged in this case. In Burgess v. M/V TAMANO, 370 F.Supp. 247 (D.Me. 1973), the court held that [i]t would be an incongruous result for the Court to say that a man engaged in commercial fishing or clamming, and dependent thereon for his livelihood, who may have had his business destroyed by the tortious act of another should be denied any right to recover for his pecuniary loss on the ground that his injury is no different in kind from that sustained by the general public. Id. at 250. Thus, these plaintiffs, who have a right under federal common law to abate the pollution of interstate waters, have also suffered sufficient individual harm to sue for damages arising from that public nuisance. We therefore hold that the federal common law of nuisance may be enforced by private plaintiffs and that these plaintiffs have sufficiently alleged individual harm to permit recovery of damages for the public nuisance. Thus we must reverse the trial court’s dismissal of the plaintiffs’ federal common law nuisance claim. V. Admiralty Jurisdiction and Maritime Torts Plaintiffs also listed the federal admiralty law as an alternate basis for their tort claims. See U.S.Const. art. III, § 2; 28 U.S.C. § 1333 (1976); 46 U.S.C. § 740 (1976). The Supreme Court’s traditional test for the existence of admiralty jurisdiction is two-fold: first, the traditional element of a maritime locality must be established; and second, a significant relationship to a traditional maritime activity must be proven. Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). The situs test may be no longer significant. See P. C. Pfeiffer Co. v. Ford, - U.S. -, -, 100 S.Ct. 328, 332, 62 L.Ed.2d 225 (1979); Sea-Land Serv. v. Director, Office of Workers’ Compens., 540 F.2d 629, 635-39 (3d Cir. 1976). That need not concern us here for both elements are satisfied by the allegations of the complaint. The situs of the algal bloom was the high seas. The nexus to maritime commerce is plain. See, e.g., Moore v. Hampton Roads Sanitation Dist. Comm’n, 557 F.2d 1030, 1034 (4th Cir. 1976) (harvesting oysters and clams, like fishing, is traditional maritime activity meeting nexus test of Executive Jet), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); Union Oil Co. v. Oppen, 501 F.2d 558, 561 (9th Cir. 1974) (fishing industry is part of maritime activity); Potomac River Ass’n v. Lundeberg Md. Seamanship School, 402 F.Supp. 344, 358 (D.Md.1975) (injury to commercial fishing meets tests of Executive Jet). Thus, this suit by plaintiffs for the tort of nuisance committed in the navigable waters and injuring those engaged in maritime commerce falls within the admiralty jurisdiction of the district court. Having held that the district court had jurisdiction in admiralty over plaintiffs’ claims, we turn to whether plaintiffs have sufficiently alleged a cause of action sounding in maritime tort. One district court has recognized that a suit by clammers and fishermen for damages caused by an oil spill sounded in maritime tort and that recovery could be had for damages suffered by private plaintiffs alleging tortious invasions different from those suffered by the general public. Burgess v. M/V TAMANO, 370 F.Supp. 247, 249-50 (D.Me.1973). The court held that the pollution was an interference with plaintiffs’ direct exercise of a public right to fish and dig for clams and thus caused them damages different in kind from those suffered by the general public. Id. at 250. The district court dismissed this claim on the ground that plaintiffs’ complaint was insufficient to allege a cause of action sounding in maritime tort. To the extent that plaintiffs have attempted to allege a maritime tort, it must be found in Count I of their complaint. That Count seeks recovery based on a theory of federal common law nuisance, rather than alleging specifically a maritime tort. But the facts which support a Bur^ess-type admiralty tort claim are sufficiently alleged, and thus judged by the standards applicable to motions under Fed.R.Civ.P. 12(b)(6) the complaint is sufficient. Probably the substantive legal standards applicable to the maritime nuisance tort and the federal common law nuisance tort recognized in Illinois v. City of Milwaukee are the same, although on this record we need not fully explore that question. Nor need we decide whether the plaintiffs must at some point elect between admiralty and non-admiralty remedies. Finally, the district court did not, and thus we do not reach the question of whether the Limitation of Liability Act, 46 U.S.C. §§ 181-195 (1976), would be available to limit liability of the federal and municipal government defendants for damages to the value of the vessels used to barge the sewage and dredge spoils to the various dumping sites. We do hold that it was error to dismiss plaintiffs’ maritime tort claims against all defendants at the pleading stage. VI. Federal Tort Claims Act The district court held that the cause of action against federal agencies based on maritime tort was barred by plaintiffs’ failure to comply with the requirements of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1976) (FTCA). The terms of the FTCA define the limits of the court’s jurisdiction to hear suits brought pursuant to the Act. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); Rosario v. American Export Isbrandtsen Lines, 531 F.2d 1227, 1231 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976). Under the Act, claims must first be presented to the appropriate federal agency and no suit may be filed until six months thereafter. 28 U.S.C. § 2675. Regulations promulgated pursuant to the Act require that each claim so presented contain a demand for a sum certain. 28 C.F.R. § 14.2 (1978). These requirements were intended to create a system of prelitigation administrative consideration in order to settle claims and avoid unnecessary litigation. Plaintiffs failed to observe the six months’ waiting period. The district court held and we agree that it did not have jurisdiction to entertain the plaintiffs' claims under the FTCA. This precludes a money damage recovery against federal agencies based on state law. Since we are remanding the federal common law nuisance claim we leave open the question, not addressed by the parties to this appeal, whether absent a reference in some statute waiving sovereign immunity for federal common law torts, monetary relief against the federal defendants is unavailable. VII. The National Environmental Policy Act (NEPA) The plaintiffs allege that the Environmental Protection Agency has violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1976 & Supp. I), by failing to develop, plan, and coordinate federal functions, programs, and resources to the end that the Atlantic Ocean might exist without degradation, and that those who use the marine environment would be protected from risk to health or safety or other undesirable consequences. The district court held that the complaint failed to state a cause of action under NEPA. The issue is one of considerable complexity. The preparation of an environmental impact statement is required for every “major federal aetion[] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1976). The Administrator of the Environmental Protection Agency, however, is statutorily exempt from the environmental impact statement requirement. 33 U.S.C. § 1371(c)(1) (1976). Whether other substantive provisions of NEPA would afford relief is not entirely clear. Further complicating the application of NEPA is the fact that some actions of the Agency are discretionary, 42 U.S.C. § 4331, and are reviewable only pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (1976). See Environmenal Def. Fund v. Corps of Eng., 470 F.2d 289, 298 n.14, 298-300 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). Because it does not appear at this stage of the case that a cause of action based upon NEPA would afford to the plaintiffs and the class they seek to represent any relief different from or more extensive than the relief which would be available under the claims we have already discussed, we decline at this time to pass upon the merits of the rather complex issues posed by NEPA. The district court will be free to reconsider the NEPA contentions in the light of the record developed on remand. VIII. State Tort Claims Acts Moreover, to the extent that plaintiffs also failed to comply with the requirements of the New Jersey and New York tort claims acts, the dismissal of their claims under those acts must be affirmed. We do so, however, without prejudice to present compliance with the requirements of those statutes and suit thereunder in the future IX. Constitutional Claims Plaintiffs also alleged violation of their fifth, ninth, and fourteenth amend-merit rights. They argued that there is a constitutional right to a pollution-free environment and that, by virtue of their special relationship to the environment, they can enforce this right. The district court rejected the constitutional argument and we affirm that holding. It is established in this circuit and elsewhere that there is no constitutional right to a pollution-free environment. See, e.g., Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1212-13 (D.N.J.1978) (citing cases rejecting constitutional analysis). We hold that the district court properly rejected the plaintiffs’ constitutional claims. X. Other Contentions Defendants Passaic Valley Sewerage Commission (PVSC), Linden Roselle Sewerage Authority, and Middlesex County Sewerage Authority as separate grounds for affirmance plead that suits against them must be dismissed on eleventh amendment grounds. We reject that contention. These defendants are municipal corporations as to whom sovereign immunity under the eleventh amendment does not apply. See N.J.S.A. 40:14B-4 (1957); N.J.S.A. 58:14-2 (1957). XI. Conclusion The judgment dismissing the complaint will be reversed to the extent that it dismissed plaintiffs’ claims under the Federal Water Pollution Control Act, the Marine Protection, Research and Sanctuaries Act, their common law nuisance claims and their maritime tort claims. The district court’s dismissal of the Refuse Act claim, the Federal Tort Claims Act and state tort claims act claims, and the constitutional claims will be affirmed. The district court’s dismissal of the National Environmental Policy Act claim will be vacated and that claim remanded for consideration of the record developed on remand. The case will be remanded to the district court for further proceedings consistent with this opinion. . The Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I) was patterned after the Clean Air Act, 42 U.S.C. §§ 7401-7642 (1976). As originally enacted it was seriously deficient as a comprehensive regulatory scheme and was substantially amended in 1972. Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, reprinted in [1972] U.S.Code Cong. & Admin. News, p. 951, codified in 33 U.S.C. §§ 1251-1376 (1976); see W. Rodgers, Environmental Law § 4.2 (1977). The 1972 amendments created the private right of action here in issue. Although the Act was further amended in 1977, those changes are not relevant to this litigation. . Numerous environmental protection statutes contain citizens’ suit provisions, each of which also contains a notice requirement similar to that found in section 505(b), 33 U.S.C. § 1365(b). E. g„ Toxic Substances Control Act, §§ 20, 21, 15 U.S.C. §§ 2619, 2620 (1976); Surface Mining Control and Reclamation Act of 1977, § 520, 30 U.S.C. § 1270 (1976 & Supp. I); Marine Protection, Research and Sanctuaries Act of 1972, § 105, 33 U.S.C. § 1415 (1976); Deepwater Port Act of 1974, § 16, 33 U.S.C. § 1515 (1976); Safe Drinking Water Act, § 2(a), 42 U.S.C. § 300j -8 (1976 & Supp. I); Noise Control Act of 1972, § 12, 42 U.S.C. § 4911 (1976); Resource Conservation and Recovery Act of 1976, § 2, 42 U.S.C. § 6972 (1976 & Supp. I); Clean Air Amendments of 1970, § 12(a), 42 U.S.C. § 7604 (1976 & Supp. 1). . See S.Conf.Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46 (1972), reprinted in Legislative History of the Water Pollution Control Act Amendments of 1972, at 328-29 (1973) U.S. Code Cong. & Admin.News 1972, p. 3668 (hereinafter Legislative History) (Senate version, adopted in relevant part by Conference Committee, would require that “no action on a. suit may begin for 60 days following notification”). Thus, it appears that the Senate bill envisioned filing of a Complaint prior to the passage of 60 days and intended only to defer action on such a suit. . S.Rep. No. 92—414, 92d Cong., 1st Sess. 79-80 (1972), reprinted in Legislative History at p. 1497-98; see W. Rodgers, Environmental Law § 1.13 (1976) (discussing prototype citizens’ suit provision of Clean Air Act). . In Sierra Club, the Supreme Court analyzed the requirement of standing in the context of litigation by environmental groups pursuant to section 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976). The Court held that such an environmental group would have standing if it could allege an adverse effect on its interests, whether economic, aesthetic, conservations! or recreational. 405 U.S. at 738, 92 S.Ct. at 1367. The legislative history of the FWPCAA is replete with references to the Sierra Club decision and the issue of whether the general language of the Clean Air Act’s citizens’ suit provision would withstand judicial scrutiny. See notes 8-9 infra and accompanying text. . The Senate bill provided that “any person” could commence a civil action to enforce the terms of the Act “without regard to the amount in controversy or the citizenship of the parties.” S. 2770, 92d Cong., 1st Sess. § 505(a) (1971), reprinted in Legislative History at pp. 1703 -04. The accompanying committee report likewise employed broad phrasing. See S.Rep. No. 92^414, 92d Cong., 1st Sess. 79 (1971), reprinted in Legislative History at p. 1497 (“[a]nyone may initiate a civil suit against” specified parties for specific violations). . The House bill provided Sec. 505. (a) . . . any citizen may commence a civil action on his own behalf . . . (g) For the purposes of this section the term ‘citizen’ means (1) a citizen (A) of the geographic area and (B) having a direct interest which is or may be affected, and (2) any group of persons which has been actively engaged in the administrative process and has thereby shown a special interest in the geographic area in controversy. H.R. 11896, 92d Cong., 2d Sess. §§ 505(a), 505(g) (1972), reprinted in Legislative History at pp. 1073, 1077. . The final form of the bill reflects the Conference Committee’s changes. See 33 U.S.C. § 1365(g). The Conference Report notes that the change complies with the Sierra Club requirements. S.Conf.Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46 (1972), reprinted in Legislative History at pp. 328-29. Senator Muskie’s somewhat fuller description of the Conference agreement noted that: The Conference agreed to define a citizen, for purposes of the citizen suit section of the water bill, as a “person or persons having an interest which is or may be adversely affected.” Legislative History at 179 (prepared statement of Sen. Muskie) E.g., Oct. 4, 1972). . The legislative history reveals numerous examples of this intent of Congress. E.g., S.Conf.Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46 (1972), reprinted in Legislative History at pp. 328-29; 118 Cong.Rec. 33752, reprinted in Legislative History at 179 (prepared statement of Sen. Muskie) (Oct. 4, 1972); 118 Cong.Rec. 33756, reprinted in Legislative History at pp. 249-50 (remarks of Rep. Dingell) (Oct. 4, 1972). Moreover, although the passage of the House version preceded the Sierra Club decision, some representatives argued that the private attorney general theory intended to be adopted called for wording of the section identical to that found in the Clean Air Act. H.R.Rep. No. 92-911, 92d Cong., 2d Sess. 407-09, reprinted in Legislative History at pp. 876-78 (additional views of Rep. Bella S. Abzug and Rep. Charles B. Rangel) (describing House version as unnecessarily limited); 118 Cong.Rec. 10771-72, reprinted in Legislative History at pp. 671-73 (remarks of Rep. McCloskey) (Mar. 29, 1972) (offering amendment similar to that ultimately adopted at Conference); see H.R.Rep. No. 92-911, 92d Cong., 2d Sess. 133-34, reprinted in Legislative History at pp. 820-21 (endorsing private attorneys general concept). . Section 505(e) provides: Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). 33 U.S.C. § 1365(e). . Under the section 505(e) and 28 U.S.C. § 1331 analysis, the plaintiffs, of course, remain subject to the jurisdictional amount requirement except with respect to their claim for injunctive relief against federal officers. . Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 319-320, 510 F.2d 692, 699-700 (D.C.Cir. 1974); see Natural Resources Defense Council v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975) (60-day notice provision is not absolute bar to suit); Conservation Soc’y of S. Vt., Inc. v. Sec’y of Transp., 508 F.2d 927, 938 & n.61, 938-39 (2d Cir. 1974) (same; provision intended to create additional remedy), vacated, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (vacated and remanded for consideration of effect of statutory amendments on issue of preparation of environmental impact statement); Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1208-10 (D.N.J.1978) (finding jurisdiction under 28 U.S.C. § 1331 gives effect to savings clause). We therefore decline to follow the Seventh Circuit’s opinion in City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir. 1975), on which the district court relied. The Highland Park court’s strict reading of the 60-day notice requirement of the Clean Air Act’s citizens’ suit provision does not persuade us with respect to our savings clause analysis. See id. at 693 (rejecting Clean Air Act citizens’ suit provision’s savings clause analysis); cf. West Penn Power Co. v. Train, 522 F.2d 302, 307 & n.20 (3d Cir. 1975) (district court’s literal reading of Clean Air Act’s 60-day notice requirement not raised on appeal). We recognize instead the intent of Congress to create a remedy for a new class of plaintiffs while preserving in section 505(e) those preexisting rights of injured individuals to enforce the Act. . Conservation Soc’y of S. Vt., Inc., v. Sec’y of Transp., 508 F.2d 927, 938 & n.62, 938-39 (2d Cir. 1974) (§ 1365(b) absolute bar analysis is “crabbed construction . . . which . . . fails to account for § 1365(e)”), vacated, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (vacated for consideration of statutory issue of preparation of environmental impact statement). The court assumed arguendo that it had section 505(e) jurisdiction but denied relief on the merits. Id. . Nor does our affirmance of the Loveladies decision bar today’s holding. See Loveladies Property Owners Ass'n v. Raab, 430 F.Supp. 276, 280-81 (D.N.J.1975), aff'd mem., 547 F.2d 1162 (3d Cir. 1976) (failure to give notice bars suit under § 505(a)), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). As Chief Judge Fisher noted in Township of Long Beach, the section 505(e) argument was not raised in Loveladies, and it is questionable whether the plaintiff, there had suffered damage in excess of the required $10,000 amount. See Township of Long Beach v. City of New York, 445 F.Supp. at 1209 n.8. . 422 U.S. at 78, 95 S.Ct. at 2088. The factors referred to in Cort are: First, is the' plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ . . . that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Id. (emphasis in original). . Transamerica Mortgage Advisors, Inc. v. Lewis, - U.S. -, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). . We have already held that the district court had jurisdiction to entertain plaintiffs’ suit pursuant to section 505(e) of the Act, 33 U.S.C. § 1365(e), and the general federal question jurisdiction, 28 U.S.C. § 1331. Separate analysis of jurisdiction and the merits of the cause of action is required by cases such as Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), and Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . In Cannon, the Court looked to the language of the statute to identify the class intended to be benefitted by the legislation, contrasting such a statute with those intended to benefit the public at large. Cannon v. Univ. of Chicago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979). . We are not persuaded that exclusivity of the section 505(a) remedy is supported by the Senate’s rejection of a class action mechanism. S.Rep. No. 92—414 at 81, Legislative History at 1499 (§ 505 does not authorize class actions; intended to avoid Fed.R.Civ.P. 23 problems); see City of Evansville v. Ky. Liquid Recycling, 604 F.2d 1008, 1014 (7th Cir. 1979) (§ 505 does not authorize class action or suit for damages). . The Seventh Circuit, addressing the issue of whether there was an implied private cause of action for damages under the FWPCAA, was persuaded that the Senate Report evidenced Congress’ intent that no remedy other than that provided for in section 505(a) be implied from the FWPCAA. City of Evansville v. Ky. Liquid Recycling, 604 F.2d 1008, 1018-19 (7th Cir. 1979). We are not persuaded that the language of the Senate Report establishes that the savings clause precludes finding an implied private cause of action under the Act on behalf of these plaintiffs. . In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), a unanimous Supreme Court recognized that there is a federal common law cause of action to abate pollution of interstate ambient water, notwithstanding the relief available under the FWPCAA. Id. at 103-05, 92 S.Ct. at 1392-1394. In Part IV, infra, we address this reliance on the federal common law of nuisance in the water pollution context. . See Act of October 21, 1976, Pub.L.No.94-574, currently codified at 5 U.S.C. §§ 702, 703 (1976) and 28 U.S.C. §§ 1331, 1391 (1976). . 33 U.S.C. § 1402(b). The Act also defines “ocean waters” as “those waters of the open seas lying seaward of the base line from which the territorial sea is measured.” id. § 1402(c). The Act does not apply to outfall structures regulated by the FWPCAA or the Refuse Act. Id. § 1402(f). . Id. § 1412a(a) (1976 & Supp. I). The Act defines sewage sludge to include any solid, semisolid, or liquid waste generated by a municipal waste-water treatment plant the ocean dumping of which may unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems, or economic potentialities. Id. § 1412a(b). . Count I of the Complaint alleged that federal defendants Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) failed to enforce the provisions of the Act, that the Secretary of the Army and the ACE negligently conducted dredging and dumping operations, and that the state defendants transported and dumped sewage in violation of the Act. Count III alleged that EPA and the Administrator of EPA and ACE and the Secretary of the Army failed to carry out their duties under the Act. . The citizens’ suit section of the MPRSA, 33 U.S.C. § 1415(g), provides in relevant part that, subject to the notice requirement, id. § 1415(g)(2), “any person may commence a civil suit on his own behalf to enjoin any person” acting in violation of the terms of the Act. Id. Other limitations upon the instituting of citizens’ suits are directed toward the avoidance of duplicative litigation and are not relevant to this suit. See id. § 1415(g)(2). . Id. § 1415(g)(5). The savings clause provides (5) The injunctive relief provided by this subsection shall not restrict any rights which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief id. . Compare 33 U.S.C. § 1365(a) (any citizen may sue) with id. § 1415(g)(2) (any person may sue). The legislative history of the MPRSA is less clear than that of the FWPCAA, although the citizens’ suit provision appears to have been patterned on the Clear Air Act formulation, as was the provision found in the FWPCAA. . Indeed, the MPRSA language, if anything, is broader than that of the FWPCAA. See Part I supra (legislative history and statutory analysis of FWPCAA). Other courts, including the district court which ruled on this case do not analyze the MPRSA and FWPCAA separately, holding that the Acts are virtually identical in this regard. E.g., Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1210-11 (D.N.J.1978); Save Our Sound Fisheries Ass’n v. Callaway (SOSF II), 429 F.Supp. 1136, 1140-42 (D.R.1.1977). . We reject the argument that the court should imply a private cause of action in cases in which the United States Attorney is not in a position to enforce the t^rms of the Act. See NRDC v. Grant, 355 F.Supp. 280, 290 (E.D.N.C. 1973) (finding private cause of action because U.S. Attorney serving as counsel for defendants). The NRDC v. Grant decision, finding an implied private cause of action because the United States Attorney was involved as counsel for the federal government defendants, does not persuade us that a private remedy should be implied. That decision was based upon an analogy to two provisions of the Rivers and Harbors Act which have generally been interpreted to permit a private cause of action. Id. The argument that the conflicting enforcement and defense roles of the United States Attorney support the implied private remedy has been explicitly rejected by this court. Red Star Towing & Transp. Co. v. Dept. of Transp., 423 F.2d 104, 105 (3d Cir. 1970); see Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1211-12 (D.N.J.1978) (no private remedy even if federal government is defendant; rejecting Grant analysis); Loveladies Property Owners Ass’n v. Raab, 430 F.Supp. 276, 281 (D.N.J. 1975) (no implied private remedy under § 407; relying on Red Star Towing), aff’d mem., 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). . 406 U.S. at 103-05, 92 S.Ct. at 1392-1394. The court held that the relief available under the FWPCAA is not an exclusive remedy. Id. at 104, 92 S.Ct. at 1393. In the private enforcement context, this holding probably is statutorily compelled. The FWPCAA provides for injunctive relief and the assessment of civil penalties, but does not create a cause of action for damages. The savings clause of the citizens’ suit provision, which preserves all rights of litigants to sue under any statute or common law, has the effect of preserving these plaintiffs’ rights to sue for damages under the remedy created in Illinois v. City of Milwaukee. See 33 U.S.C. § 1365(e). Since Illinois v. City of Milwaukee was decided, the FWPCAA has been amended twice, but these amendments do not suggest that Congress intended to preempt the federal nuisance remedy. The Seventh Circuit, in deciding an appeal from the remand of the Illinois case, analyzed the amended act to permit a claim for nuisance independent of the FWPCAA remedies. Illinois v. City of Milwaukee, 599 F.2d 151, 162 (7th Cir. 1979) (Act “suggests, if it does not require, the conclusion that Congress did not intend to preempt the federal common law of nuisance”), petition for cert. filed, - U.S. - 100 S.Ct. 445, 62 L.Ed.2d 373 (1979); see 33 U.S.C. § 1370 (state authority to enforce more stringent limitations); id. § 1371 (chapter shall not be construed to limit or impair authority of officers or agencies). Moreover, the Seventh Circuit relied upon the explicit language of the savings clause in reaching that conclusion. That clause preserves all remedies under “any statute or common law.” 33 U.S.C. § 1365(e); see S.Rep.No. 92-414 at 81, reprinted in Legislative History at 1499 (“Compliance with [the] . Act would not be a defense to a common law nuisance action for damages.”). There is no suggestion that “common law” was intended to be limited to state rather than federal common law. We thus agree that the amended Act does not preclude an independent nuisance remedy. . 406 U.S. at 105, 92 S.Ct. at 1393; 28 U.S.C. § 1331 (1976); see Illinois v. City of Milwaukee, 599 F.2d 151, 162-63 (7th Cir. 1979), petition for cert. filed, - U.S. -, 100 S.Ct. 445, 62 L.Ed.2d 373 (1979). . See Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1281 (D.Conn.1976), aff'd mem. sub nom. East End Yacht Club Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Committee for Consid. of Jones Falls Sew. Sys. v. Train, 375 F.Supp. 1148 (D.Md.1974), aff’d on different but not inconsistent grounds, 539 F.2d 1006 (4th Cir. 1976). . In reaching the conclusion that federal common law may be fashioned to deal with federal rights, and that ambient air or water are interstate problems as to which there is a federal common law remedy, the Supreme Court relied upon Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957) and Texas v. Pankey, 441 F.2d 236, 240-41 (10th Cir. 1971). Illinois v. City of Milwaukee, 406 U.S. at 103 & n.5, 92 S.Ct. at 1392 n.5. . Failure sufficiently to allege interstate effects has proved fatal to plaintiffs seeking to base their suits on the federal common law nuisance remedy. Reserve Mining Co. v. EPA, 514 F.2d 492, 520 (8th Cir. 1975); Committee for Consid. of Jones Falls Sew. Sys. v. Train, 539 F.2d 1006, 1009 (4th Cir. 1976). In Illinois v. City of Milwaukee, the immediate issue of concern was the need to apply uniform federal law where the polluting activities of one state caused harm to another state. The need for uniformity, however, is no less a concern where individuals are harmed by the polluting activities of states or their subdivisions. To hold that plaintiffs may not avail themselves of this remedy is to leave open the possibility that this pollution will continue unabated and that the damages suffered by these individuals will be unremedied. Such a result was surely not intended by the unanimous Court in Illinois v. City of Milwaukee. . United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Ira S. Bushey & Sons, 346 F.Supp. 145, 149-50 (D.Vt.1972), aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974). . City of Evansville v. Ky. Liquid Recycling, 604 F.2d 1008, 1018-19 (7th Cir. 1979). . In Byram River v. Village of Port Chester, 394 F.Supp. 618 (S.D.N.Y.1975), the court extended the Illinois v. City of Milwaukee remedy to (1) Byram River, (2) a private corporation, Byram River Pollution Abatement Association, (3) the Town of Greenwich, a municipal corporation, and (4) a private individual owning land on the river’s bank. Id. at 622 (relying on Illinois v. City of Milwaukee and 28 U.S.C. § 1331). In Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036 (7th Cir. 1975), the Seventh Circuit held that common law relief is available to a pollution control board, but denied the motion of a private individual to intervene on the ground that the federal common law nuisance suit was not a suit commenced to enforce compliance with an FWPCAA “standard, limitation or order.” Id. at 1039-41, 1040 n.9; see 33 U.S.C. § 1365(b)(1)(B) (governing intervention). The court did not address the availability of the Illinois remedy to a private individual, but held that the remedy extended to the pollution control board because the “complaint raises substantial questions which only a federal court may finally answer.” 512 F.2d at 1040. Although the Seventh Circuit has since questioned the analysis of the FWPCAA permit system in Stream Pollution, see United States Steel Corp. v. Train, 556 F.2d 822, 830 n.3 (7th Cir. 1977), that affects only the issue of whether under the Act, the private individual could intervene. In Potomac River Association v. Lundeberg Md. Seamanship School, 402 F.Supp. 344 (D.Md.1975), the court permitted private plaintiffs to sue for the maritime tort of nuisance without reference to a federal common law nuisance claim. Id. at 358-59; see Part V, infra. . Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). . Illustration 11, explicitly included within the different in kind test, is indistinguishable from the facts of this suit. It states: 11. A pollutes public waters, killing all of the fish. B, who has been operating a commercial fishery in these waters, suffers pecuniary loss as a result. B can recover for the public nuisance. Restatement (Second) of Torts § 821C, Illustration 11 (1979). . We need not consider plaintiffs’ assertion that the court had jurisdiction independently under the Extension of Admiralty Act, 46 U.S.C. § 740 (1976). That Act was intended to broaden jurisdiction to cases over which jurisdiction would not have existed under the strict locality test employed prior to Executive Jet. The Act extends admiralty jurisdiction to injuries caused by a vessel on navigable waters the effects of which are felt on land. . The confusion arises because the nuisance claim also requires a showing that these private individuals have suffered damages different in kind from those suffered by the general public. See Part IV, supra. In Burgess, the court held that the tort of nuisance could be a maritime tort and analyzed the complaint under an admiralty theory. See 370 F.Supp. at 250. The plaintiffs in Burgess did not raise, and the court did not address, the federal common law nuisance issue. Thus, the Burgess opinion does not persuade us that an allegation of the tort of nuisance as to which recovery is expressly based on the doctrine of federal common law nuisance may not also be liberally read as sounding in maritime tort. . See 28 U.S.C. § 2675 (six months must elapse following presentation of claim to federal agency before suit may be filed); 28 C.F.R. § 14.2 (1978) (claim must demand sum certain in damages). . Bialowas v. United States, 443 F.2d 1047, 1049-50 (3d Cir. 1971); see Pennsylvania v. Nat’l Ass’n of Flood Insurers, 520 F.2d 11, 19 (3d Cir. 1975) (sum certain requirement); Ryan v. United States, 457 F.Supp. 400, 402 (W.D.Pa. 1978) (same). . We express no view as to whether the sum requested by plaintiffs was sufficiently certain, see Fallon v. United States, 405 F.Supp. 1320, 1322 (D.Mont.1976), or whether plaintiffs’ claims against federal agencies and officials for negligent enforcement of various federal acts would be barred by the FTCA’s exception for discretionary functions. See 28 U.S.C. § 2680(a) (1976). . Courts differ, for example, on the question of whether section 101 of NEPA, setting forth Congress’ declaration of purpose, would afford such relief. Compare Calvert Cliffs’ Coord. Comm. v. AEC, 146 U.S.App.D.C. 33, 38, 449 F.2d 1109, 1114 (D.C.Cir.1971) (§ 101 of NEPA is substantive) with Shiffier v. Schlesinger, 548 F.2d 96, 100-01 (3d Cir. 1977) (§ 101 lacks independent substantive impact). . New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-2 (1972). The statute provides that public entities may only be sued if a claim is presented within 90 days after the cause of action accrues and no court suit may be instituted prior to six months thereafter. Id. 59:8-8. The trial judge has discretion under the statute to expand the filing time from 90 days to one year if no substantial prejudice results. Id. 59:8-9. . N.Y.General Municipal Law (McKinney) § 50-e (1977). The statute provides that notice of a claim must be filed within 90 days after the cause of action accrues, id., that suit may not be filed until 30 days have elapsed after the filing of the notice, id. § 50 — i(1), and that no suit may be brought more than one year and 90 days after the accrual of the cause of action. Id. § 50-i(1)(c). A suit within the admiralty jurisdiction, however, is not subject to the requirements of the New York Tort Claims Act, Rogers v. City of New York, 46 Misc.2d 373, 259 N.Y.S.2d 604, 608-09 (N.Y.Sup.Ct.1965). . Plaintiffs’ failure to comply with the requirements of the state tort claims statutes, however, only bars suit under those statutes. It does not preclude suit if an alternative basis for suit against the defendants is pleaded. The state tort claims acts may not preempt federal statutory or common law causes of action.

Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle

COWEN, Senior Judge. This case involves the interpretation of Public Law 89-298 as it applies to the control of pollutants from the Northern Indiana Public Service Company (NIPSCO) generating plant into Lake Michigan at Burns Waterway Harbor adjacent to the Indiana Dunes National Lakeshore. The question is whether the Environmental Protection Agency’s (EPA) grant of a seemingly lawful discharge permit to NIPSCO under section 402 of the Federal Water Pollution Control Act of 1972, as amended, (FWPCA) was nonetheless unlawful, because EPA ignored a higher standard established for pollution control in the vicinity of Burns Harbor under Public Law 89-298. Petitioners, the Izaak Walton League, et al., (League) contend that they have properly exhausted their administrative remedies before EPA; that this court has jurisdiction over this action, and that the EPA Administrator’s decision interpreting Public Law 89-298, should be reversed. We hold that the action is properly before this court, but that the legislative history and a fair interpretation of this statute warrant affirmance of the Administrator’s decision on the merits. Background On October 31, 1974, the Director of the Enforcement Division of Region V of EPA, pursuant to section 402 of the FWPCA, issued a National Pollutant Discharge Elimination System (NPDES) permit to NIP-SCO for its coal-fired Bailly generating station adjacent to Burns Harbor. This permit required NIPSCO to heed certain effluent limitations and other special conditions. On November 14, 1974, NIPSCO requested an adjudicatory hearing to resolve questions on the permit. EPA granted this request and gave public notice of the hearing on June 27, 1975. In response to this notice, the petitioners filed a request for party status on July 28, 1975. EPA granted this request on August 29, 1975. As a result of a prehearing conference held on November 12, 1975, the presiding officer certified to the General Counsel of EPA for decision what has become the major issue in this litigation. Petitioners contended that Public Law 89-298 should have been applied by EPA’s Regional Director of Enforcement in issuing NIPSCO a permit to discharge pollutants into Burns Harbor under the FWPCA. Specifically, the petitioners contended the following provision in Public Law 89-298 mandates a higher standard than does section 402 of the FWPCA and that EPA should have followed this higher standard in issuing the permit to NIPSCO. [Prior to the construction of the Harbor project the] State of Indiana shall furnish assurance satisfactory to the Secretary of the Army that water and air pollution sources will be controlled to the maximum extent feasible in order to minimize any adverse effects on public recreational areas in the general vicinity of [Burns] Harbor (emphasis added). On June 9, 1976, the General Counsel of EPA decided: Congress clearly left the determination of the scope of such assurance [about control of pollution near Burns Harbor] to the discretion of the Secretary of the Army. * * * * * * The Act on its face does not impose any obligations on parties other than those named in it. [EPA was not named]. In the absence of compelling legislative history to the contrary, I conclude that Public Law 89-298 has no applicability in establishing effluent limitations for the NPDAS permit at issue. On July 6, 1976, the petitioners filed a petition to the Administrator for review of this decision. He first considered the “ripeness” of the petition for review and decided that, since the decision of the General Counsel would “undergo no further refinements” prior to the decision of the Regional Administrator about the NPDES permit, he would exercise his “inherent discretion to entertain the instant Petition.” He then denied the petition on the merits on August 10, 1976. On October 7, 1976, the Regional Administrator issued the initial decision authorizing the issuance of an amended NPDES permit to NIPSCO. At this time the parties entered into a stipulation which resolved factual issues and preserved legal questions pertaining to Public Law 89-298. When the petitioners did not seek any further review with the Administrator within 10 days, the initial decision of the Regional Administrator on the permit became the final decision of the Agency. On November 8, 1976, the petitioners filed their first appeal (No. 76-2098) with this court seeking judicial review of the Administrator’s decision of August 10,1976, with respect to Public Law 89-298. On December 7, 1976, the Director of Enforcement of Region V formally issued the NPDES permit to NIPSCO. On March 7, 1977, the petitioners filed their second appeal to this court (No. 77-1262), seeking judicial review of the order of December 7, 1976, issuing the permit. In particular, the appeal challenges the Administrator’s decision of August 10, 1976, with respect to Public Law 89-298. By order of May 9, 1977, and by amendment of May 16, 1977, this court ordered the consolidation of the two appeals (Nos. 76-2098 and 77-1262). The Jurisdictional Issues The intervenor in these appeals, NIPSCO, contends that the petitioners are not properly before this court, because they did not exhaust their administrative remedies prior to filing either of the appeals. EPA also contends that appeal No. 76-2098 was premature. We need not pass on that question in view of our holding that the petitioners sufficiently exhausted their administrative remedies in appeal No. 77-1262. With respect to appeal No. 77-1262, NIPSCO first invokes 40 C.F.R. § 125.36(7 )(4) as providing that the October 7, 1976, initial decision of the Regional Administrator issuing the permit to NIP-SCO, became the final decision of the Agency when an appeal was not taken to the Administrator following this decision. This is a correct reading of the EPA regulations. NIPSCO then argues that such an appeal was a “prerequisite to judicial review,” and since petitioners did not pursue that avenue prior to appealing to this court on March 7, 1977, they have failed to exhaust their administrative remedies. NIPSCO asserts that they have not provided the Agency with an opportunity to correct its errors and to moot judicial controversy, and also that a court of appeals is entitled to the full benefit of the expertise of an administrative agency and of a complete record. NIPSCO has provided this court an accurate reflection of axioms requiring exhaustion of administrative remedies. Nevertheless, NIPSCO has ignored the very axiom which is decisive with respect to the matter at hand. A remedy need not be exhausted if to do so would be a futile gesture. City Farmers Trust Co. v. Schnader, 291 U.S. 24, 34, 54 S.Ct. 259, 78 L.Ed. 628 (1934); Montana Nat’l Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct. 331, 72 L.Ed. 673 (1928); Davis, Administrative Law Treatise, § 20.07, at 99 (1958). This is the case here. The EPA regulations cited by NIP-SCO do contemplate that prior to judicial review of a permit, the Administrator must have an opportunity to review the contested issues concerning the permit. Furthermore, the Administrator, in his August 10, 1976, decision following the petitioners’ original appeal to him of the General Counsel’s decision relative to Public Law 89-298, has recognized that normally an appeal of the General Counsel’s decision should not be filed until the Regional Administrator has issued an initial decision on the permit. Nevertheless, this case does not involve the usual situation. The Administrator, also in his August 10,1976 decision, found that the same EPA regulations which contemplate review after the initial decision on the permit leave some room for interpretation. Further, he decided that since the decision of the General Counsel regarding Public Law 89-298 could “undergo no further refinements prior to the initial decision” on the permit, he would exercise his “inherent discretion” to entertain the petition early. Thus he was given, and he accepted, the opportunity to rule definitively on the sole substantive issue on appeal before this court. The respondent Agency does not now seek further opportunity for review, but instead joins the petitioners’ contention that administrative remedies have been properly exhausted. In this context, a second administrative review on the applicability of Public Law 89-298 to the permit would serve no useful purpose. NIPSCO also argues that the petitioners’ application for judicial review of the permit in No. 77-1262 has not been filed in a timely and proper manner pursuant to the FWPCA. The Act reads in pertinent part: (b)(1) Review of the Administrator’s action * * * (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals * *. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial * * *. (emphasis added). In appeal No. 77-1262, the Regional, Director of Enforcement formally issued the permit to NIPSCO on December 7, 1976, and the petitioners filed this appeal on March 7, 1977, within 90 days of the issuance of the permit. However, NIPSCO contends that December 7 represents a date of “clerical import only.” It argues that the “significant date for purposes of filing a petition for review” is November 5, 1976, the date NIPSCO alleges the initial decision of the Regional Administrator “authorizing the issuance of the permit became the final determination of the Agency.” This argument is specious. The statute clearly allows an appeal within 90 days of the date of issue of a permit, and this 90-day time limit was complied with by petitioners when they filed on March 7, 1977. Therefore, NIPSCO’s contention that the petition for review should be dismissed because this court lacks jurisdiction, is rejected. Applicability of Public Law 89-298 We now turn to the merits. For a number of years prior to 1965, industrialists and conservationists waged a battle over the use of the shoreline of Lake Michigan near Burns Ditch, Indiana. Industrialists proposed to develop the area as Burns Waterway Harbor. Conservationists sought to expand an existing Indiana State park and include the area in a proposed Indiana Dunes National Lakeshore Park. Between 1963 and 1965, both sides in this “port versus park” controversy compromised and agreed to the development of a public harbor and a national lakeshore. Legislation to this effect was introduced in both houses of Congress in 1965. The Public Works and Interior Committees of each house held hearings and marked up legislation creating the port and park respectively. The Public Works Committees acted first. In letters and testimony recorded in the House and Senate, considerable support was expressed for pollution controls on industry in the Burns Waterway area. The Bureau of the Budget and the Secretary of the Army both recommended that the State of Indiana furnish assurances satisfactory to the Secretary of the Army that “water and air pollution sources will be controlled to the maximum extent feasible in order to minimize any adverse effects on public recreational areas in the general vicinity of the harbor.” The Department of Health, Education, and Welfare; the Department of Interior, and various senators, representatives, and conservation groups all voiced their common concern that pollution in the vicinity of the proposed harbor be controlled. The Public Works Committee of each house reported out a bill authorizing the development of Burns Waterway Harbor. Although these bills did not contain specific language providing for control of pollution in Burns Harbor, they did authorize the development of the harbor under the “direction of the Secretary of the Army” pursuant to House Document 160. This document contained the recommendation of the Secretary of the Army that: Both committee reports indicated that they had no objection to this provision. After passage of each bill by the respective houses, the conferees from each house wrote this exact language into the bill, and the legislation was enacted. * * * the State of Indiana furnish assurances satisfactory to the Secretary of the Army that water and air pollution sources will be controlled to the maximum extent feasible in order to minimize any adverse effects on public recreational areas in the general vicinity of the harbor. Despite this rather clear directive that the Secretary of the Army should be furnished assurances regarding control of pollution, Congress did not prescribe a specific water quality standard, treatment standards, schedules of compliance, or the like, to which industry in Burns Harbor need adhere. Moreover, Congress did not confer authority in the Secretary to promulgate such specific standards. Rather, the Secretary was directed to satisfy himself that Indiana would have some methods, presumably some state standards, which would provide maximum feasible protection from pollution in the vicinity of the harbor. In the House and Senate hearings, there was very little discussion concerning specific measures or precise means to control pollution. Perhaps the most explicit plea for specific standards was made in the House hearings by Sam Ropehan, President of the Fort Wayne Chapter of the Izaak Walton League. He said: Showing little response, the committee members did not even inquire of Mr. Ropchan what rigid standards or better defined assurances he wished to see enacted into law. Obviously, the Congress rejected his plea, because it enacted into law word-for-word the so-called “vague references” to pollution contained in House Document 160. * * * we ask that you call for provisos specifying conformity to rigid pollution standards. At present there are only vague references to pollution in House Document 160. [The document which contained the pollution control recommendation of the Secretary of the Army]. We feel the public is entitled to better defined assurances that the irreplaceable natural qualities in the dunes will be protected. (emphasis added).' Nor did members of Congress indicate at any point in the hearings or in floor debate that they meant the pollution control provision in Public Law 89-298 to be a precise standard. Not one of the specific references to the hearings cited in' the reply brief of petitioners supports the proposition that members of Congress intended the pollution control provision to be a precise standard. Rather, the cited materials support the proposition that this provision was only meant to confer upon the Secretary of the Army the authority to require assurances from the State of Indiana that pollution would be controlled to the maximum extent feasible. Remarks by Senator Bayh during the Senate Hearings provide some insight into the Congressional intent to leave the matter of pollution control assurances to the discretion of the Secretary of the Army, and thus to some extent to the Corps of Engineers. He explained that the Corps of Engineers could ask the State of Indiana to meet certain criteria before the Secretary might be willing to certify that he had received proper assurances about pollution control. But the senator argued that specifics ought not be included in the Federal legislation authorizing the harbor. He continued: This is the way it is done. I have no doubt this is the way it will be done. * * I ask you to recognize if you can that although you might feel a little bit better if this is all in black and white now, that indeed developments may point out as we look into the design of the port that the original plan for pollution control would not be as good as the ones which might be tailormade to meet the final plan of design. There is significance in the fact that Public Law 89-298 does not contain a specific standard and does not give the Secretary of the Army authority to promulgate precise standards. It lies in the fact that pollution control under a FWPCA permit for discharge of pollutants must not only require the application of the “best practicable control technology currently available,” but must also meet “any more stringent” standard established pursuant to any other Federal law or regulation. If Public Law 89-298 had provided a precise standard and one more stringent than that required by FWPCA § 301(b)(1)(A), the court would have to direct the Regional Administrator of EPA to heed that stricter standard in the issuance of the permit to NIP-SCO. But the public law does not articulate any specific standard. The Act voices only a broadly stated objective, which gives the Secretary of the Army authority to exercise his discretion in obtaining assurances from Indiana of “maximum feasible” pollution control in Burns Harbor. Furthermore, it appears that the Secretary of the Army has already received the required assurances. Public Law 89-298 appropriated $25 million for construction of Burns Waterway Harbor. It was expressly stipulated in the Act that the State of Indiana should be reimbursed for its expenditure of funds in the construction of the harbor. But the reimbursement was to be made only if the construction was approved and supervised by the Chief of the Corps of Engineers. Since the record reveals that the state has received this reimbursement, it seems apparent that the Secretary, through the Corps of Engineers has already been given assurances, satisfactory to him, that the state will control pollution in the harbor to the maximum extent feasible. We think the Secretary’s acceptance of Indiana’s submission is the end of the matter as regards the applicability of Public Law 89-298. Beyond that, the public law has no application to EPA or to permits issued under the FWPCA. Despite the fact that Public Law 89-298 is a directive to the Secretary of the Army, petitioners contend that the “policy underlying the legislation” is a mandate to the Administrator of EPA. Therefore, they say the law demands that EPA promulgate, or require the State of Indiana to promulgate, stricter standards than are provided by section 301(b)(1)(A) of the FWPCA, and that these stricter standards must be applied iif permits issued under the FWPCA. This court is aware of the impact of underlying Congressional policy on legislative interpretation. In United States v. Sisson, 399 U.S. 267, 297-98, 90 S.Ct. 2117, 2133, 26 L.Ed.2d 608 (1970), the Supreme Court stated: * * * The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. * * * This guidance, however, does not preclude the long held rule that, in construing statutes, courts must look first to the text of the statute itself. E. g., United States v. Bass, 404 U.S. 336, 339, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In the case at hand, the face of Public Law 89-298 is very clear. It gave a directive to the Secretary of the Army, not to the Administrator of EPA. The Act left the matter to the Secretary’s discretion; it did not authorize him, and certainly not the Administrator, to promulgate standards. He was to receive assurances of pollution control prior to the construction of the harbor and that was to be the end of the matter. He was not authorized to demand assurances indefinitely. In our opinion, it would be judicial legislation to find that Congressional policy requires the EPA to act in a situation and in a manner clearly not contemplated by the language of Public Law 89-298 or its legislative history. Petitioners also rely on a report made by the Comptroller General to the Congress on September 20, 1971, about 6 years after the enactment of Public Law 89-298. The General Accounting Office (GAO) made a study to determine if the Secretary of the Army had received the assurances required by the public law from the State of Indiana. The report stated that: It is not clear what petitioners expect to establish by the GAO report. It does not purport to interpret the intention of Congress on the issue before us and it does not say that Public Law 89-298 imposed any duty on the Administrator. In fact, the report clearly recognizes that the Secretary of the Army, rather than the Administrator, had the responsibility for evaluating the assurances of the State of Indiana. At most, the GAO report reflects a difference of opinion between the GAO and the Secretary of the Army regarding the assurances by the State of Indiana; in that connection, the GAO report states: * * * Certain weaknesses were noted in the State’s implementation of its air and water pollution control program which, in GAO’s opinion, raise questions regarding the adequacy of the assurances provided. The weaknesses noted resulted primarily from a lack of adequate resources and a need to strengthen the State’s laws and regulations. [App. to Petitioner’s Brief, pp. 66-67], The Department of the Army did not agree that the required assurances had not been obtained and stated that the assurances had been interpreted to mean the State’s ability and intent to provide the landward facilities on a schedule that would meet the need for the developing traffic. A judgment was made by the Department that such ability and intent had been demonstrated. [App. to Pet. Brief, p. 68]. In our opinion, the GAO report does not support petitioners’ interpretation of Public Law 89-298. If we assume arguendo that Public Law 89-298 required the EPA to apply that law in the issuance of the permit in issue, our holding would be the same. Petitioners have made no showing that any requirements based on the public law would be more stringent than the “best practicable control technology currently available,” the standard set out in FWPCA § 301(b)(1)(A). In oral argument, the petitioners stated that the control standard they would like to see applied to the NIPSCO permit is the “best available technology economically achievable”; this is the standard provided in the FWPCA as one to be met no later than July 1, 1983. Petitioners argue that application of this standard is what the “maximum extent feasible” language of Public Law 89-298 requires. The legislative history of the FWPCA, however, persuades us to reject petitioners’ contention. The Senate committee report on the FWPCA Amendments of 1972 explains that the FWPCA standards “are expected to establish the maximum level of pollution allowable in interstate waters.” (emphasis added). Obviously, in this case, this means that until some future time not later than July 1, 1983, the maximum level of pollution allowable in Burns Harbor is that level which cannot be prevented by the “best practicable control technology currently available.” This is the standard applied by EPA in the issue of the NIPSCO discharge permit in question. We do not perceive that any difference in pollution control would result from enforcement of an objective to control pollution to the “maximum extent feasible” on one hand and a standard which establishes the “maximum level of pollution allowable” on the other. Thus, application of the objective stated in Public Law 89-298 would not result in the adoption of a standard more stringent than the applicable standards under the FWPCA. Our conclusion on this point is buttressed by the legislative history of Public Law 89-298. Petitioners contend that the history “makes repeated reference to the necessity for extraordinary pollution control * * (emphasis added). This is hardly the case. Of all the witnesses at the hearings, only Sam Ropchan, Roy B. Crockett, and Thomas E. Dustin of the Izaak Walton League asked the Congress to adopt “rigid” control standards. Mr. Ropchan complained that the “maximum extent feasible” language eventually enacted into law was not rigid enough, and he requested the Congress to spell out “better defined assurances” of pollution control. None of the members of Congress voiced a complaint about the language eventually adopted. Obviously, enactment of the language criticized by Mr. Ropchan indicates Congressional disapproval of his suggestion. The Congress does not appear to have regarded Public Law 89-298 as requiring an “extraordinary” pollution control standard. Certainly, in light of the apparent intent of Congress as reflected Public Law 89-298 and in the FWPCA Amendments of 1972, we cannot conclude that the public law warrants the application of a higher standard to the NIPSCO permit in issue than the one which EPA has applied. Conclusion For all of the reasons set out above, the petition of the League is dismissed and the decision of the Administrator on Public Law 89-298 is affirmed. . Act of October 27, 1965, title III, § 301, 79 Stat. 1073. . 86 Stat. 816 (codified at 33 U.S.C. §§ 1251 et seq. (Supp. V 1975)). . 33 U.S.C. § 1342 (Supp. V 1975). Section 1342(a)(1) provides: “Except as provided in sections 1328 and 1344 of this title, the Administrator [of EPA] may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) [which makes pollution unlawful except as in compliance with law] of this title, upon condition that such discharge will meet either all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.” . The Federal Water Pollution Control Act, § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) (Supp. V 1975), provides: “In order to carry out the objective of this chapter there shall be achieved— “(1)(A) not later than July 1, 1977, efñuent limitations for point sources * * * which shall require the application of the best practicable control technology currently available as defined by the Administrator * * (emphasis added). . See note 3 supra (the provision that a permit may be granted after a public hearing.) . Act of October 27, 1965, title III § 301, 79 Stat. 1073. . Decision of the General Counsel on Matters of Law Pursuant to 40 C.F.R. section 125.-36(m), No. 42, at 4 (1976), (Respondent’s Appendix at p. 422). . In re National Pollution Discharge Elimination System Permit For: Northern Indiana Public Service Co. Bailly Generating Station NPDES No. IN 0000132, NPDES Appeal No. 76-4, at 2-3 (August 10, 1976). . 40 C.F.R. § 125.36(f)(4) reads in pertinent part: “The initial decision of the Regional Administrator shall become the final decision of the Agency unless within ten (10) days after its issuance any party shall have appealed the initial decision to the Administrator pursuant to paragraph (n)(l) of this section $ * * *." 40 C.F.R. § 125.36(n)(3) reads in pertinent part: “Any person seeking review of the initial decision of the Regional Administrator by the Administrator shall, within ten (10) days of the initial decision of the Regional Administrator file with the Administrator and mail, by certified mail, to all parties a petition for the Administrator’s review. * * * ” . Id. . 40 C.F.R. § 125.36(n)(6) provides: “A petition to the Administrator for review of any initial decision of the Regional Administrator pursuant to paragraph (n)(l) of this section is, pursuant to 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final decision of the Administrator.” . In re National Pollution Discharge Elimination System Permit For: Northern Indiana Public Service Co. Bailly Generating Station NPDES No. IN 0000132, NPDES Appeal No. 76-4, at 3 (August 10, 1976). . Id. . Id. . The petitioners raise a further' argument. They did not receive a letter notifying them of the October 7, 1976, initial decision of the Regional Administrator on the permit until October 26, 1976. The Acting Regional Hearing Clerk granted them a 10-day extension of time to file an appeal to the Administrator. This raises the question whether the 10-day time limit for appeal expired on October 18, 1976, or November 5, 1976, or whether, as petitioners contend here, the extension of time for appeal ■ was contrary to other Agency regulations so that on the whole, the Agency made it effectively impossible for the petitioners to comply with the 10-day time limit. We need not resolve this dispute at this time because our decision that further exhaustion of administrative remedies would have been futile in No. 77-1262 moots this dispute over impossibility of exhaustion of remedies. . 33 U.S.C. § 1369(b)(l)(F)(Supp. V 1975). . Letter of Elmer B. Staats, Deputy Director, Bureau of the Budget, to Cyrus R. Vance, Secretary of the Army (September 24, 1963) (Resp. App. p. 7); letter of Cyrus R. Vance to John W. McCormack, Speaker of the House (September 24, 1963) (Resp. App. p. 13). . See S.Rep.No.464, 89th Cong., 1st Sess. (July 19, 1965); H.R.Rep.No.973, 89th Cong., 1st Sess. (September 9, 1965). . 88th Cong., 1st Sess. (1963) (Resp. App. p. 7). . S.Rep.No.464, 89th Cong., 1st Sess., at 23 (July 19, 1965); H.R.Rep.No.973, 89th Cong., 1st Sess., at 161 (September 9, 1965). . Act of October 27, 1965, title III, § 301, 79 Stat. 1073. . Hearings Before the Subcommittee on Rivers and Harbors and the Subcommittee on Flood Control of the Committee on Public Works House of Representatives, 89 Cong., 1st Sess. 655 (1965) [hereinafter cited as House Hearings.] (Respondent’s Appendix p. 235). Roy B. Crockett and Thomas E. Dustin of the Indiana Division of the Izaak Walton League made a similar written plea for “rigid Federal control standards.” Id. at 656. (Resp. App. p. 236). There were very few, if any, other pleas or comments concerning explicit federal control measures. There were some complaints about the inadequacy of Indiana standards. See the statement of petitioner Herbert Read, Chairman, Engineering Committee, Save the Dunes Council, Inc., Hearings Before the Subcommittee on Flood Control — Rivers and Harbors of the Committee on Public Works United States Senate, 89th Cong., 1st Sess., 374 (1965) [hereinafter cited as Senate Hearings], . See, e. g., House Hearings, supra note 22, at 653-54, 660, (Respondent’s Appendix 233-34, 240); Senate Hearings, supra note 22, at 349, 372, 389, 393-94, (Resp. App. at 107, 130, 147, 151-52). . Senate Hearings, supra note 22, at 383, (Resp. App. at 141). . FWPCA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) (Supp. V 1975). . Id. § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C) provides: “In order to carry out the objective of this chapter there shall be achieved— * * * “(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations * * * or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.” The committee report on this provision explains it in the following manner: “Section 301(b)(1)(C) provides adequate authority to apply new information to existing water quality requirements and upgrade effluent limits accordingly. “In other words, wherever the Administrator determines that application of the best practicable treatment requirements of Phase I will not provide for implementation of existing water quality standards for interstate or intrastate streams, he must tighten the requirements against a source of discharge or group of sources.” (emphasis added). Senate Public Works Committee, Federal Water Pollution Control Act Amendments of 1977, S.Rep.No.92-174, 92d Cong., 1st Sess., (October 28, 1971), reprinted in [1972] U. S. Code Cong, and Adm. News 3668, 3710 (Senate bill was passed in lieu of House bill). . Act of October 27, 1965, title III, § 301, 79 Stat. 1073. . ‘The hearing record further supports our' contention that all Congress intended in its Public Law 89-298 proviso was for the Secretary of the Army to satisfy himself prior to construction of the harbor that pollution would be controlled to the “maximum extent feasible.” Witness the following exchange between Senator Birch Bayh of Indiana and Colonel Pinnell of the Corps of Engineers: “Senator Bayh. I am curious as to what specific action has to be taken by the State or by the port commission to provide these assurances to the Secretary. At what time can we get an unqualified statement saying that Bethlehem is sufficiently far along, or Midwest is sufficiently far along — pollution plans have been made? Do we need to get these assurances at this particular time, or is this part of the negotiation that goes on between the corps and the State? “Colonel Pinnell. As a normal matter, sir, and in this case as well, these assurances are required prior to initiation of construction. In the instant case the assurances are not required now at this stage although we do have informal assurances. “Nor would they be required prior to the first appropriation of funds for the project, since the first appropriation of funds is for preconstruction planning purposes. However, prior to the initiation of construction, the requirements must be met. “Senator Bayh. So then this is really a final check that the corps has and the Secretary of the Army has to see that all the necessary prerequisites are present? “Colonel Pinnell. That is correct.” (emphasis added). Senate Hearings, supra note 22, at 345 (Resp. App. at 103). . Comptroller General of the United States, Environmental and Economic Problems Associated With The Development Of The Burns Waterway Harbor, Indiana (September 20, 1971). . The statute provides: “In order to carry out the objective of this chapter there shall be achieved— * * * “(2)(A) not later than July 1, 1983, effluent limitations for categories and classes of point sources * * * which (i) shall require application of the best available technology economically achievable for such category or class * * FWPCA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (Supp. V 1975). . The report reads: “The setting of water quality standards for interstate navigable waters, as indicated above, is the keystone of the present program for control of water pollution. The standards are intended to function * * * “(1) As a measure of performance * * to establish the maximum level of pollution allowable in interstate waters.” Senate Public Works Committee, Federal Water Pollution Control Act Amendments of 1972, S.Rep.No.92-414, 92d Cong., 1st Sess. (October 28, 1971), reprinted in [1972] U. S. Code Cong. & Adm. News, 3668, 3671. (Senate bill passed in lieu of House bill). . House Hearings, supra note 22, at 655-56, Resp. App. at 235-36. . Id. at 655, Resp. App. at 235.

Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle

FAIRCHILD, Chief Judge (dissenting in part). Although I agree with the treatment of the jurisdictional issues, I respectfully dissent from the majority opinion for the following reasons. At issue in this case are two differently phrased standards for water pollution control. The first, “maximum extent feasible,” was established in 1965 as part of the legislative compromise which created the Burns Harbor Waterway and the Indiana Dunes National Lakeshore. The second, “effluent limitations reflecting application of best practicable technology,” was articulated in the 1972 Federal Water Pollution Control Act as binding on the EPA’s permit decision-making. It is unclear from the record, briefs and oral argument whether these two phrases in fact establish two distinct standards, one higher than the other, or are merely a restatement of the same idea. The record shows that the EPA deemed the 1965 language inapplicable and therefore never determined its meaning. In response to Porter County Isaak Walton League’s challenge to the issuance of a NPDES permit to NIPSCO, the General Counsel of the EPA decided that “the [1965] Act on its face does not impose any obligations on parties other than those named in it.” Thus, because Congress left the question of the sufficiency of the water pollution control assured by the state to the Secretary of the Army and because the EPA was not in existence at the time, the General Counsel concluded that “Public Law 89-298 has no applicability in establishing effluent limitations of the NPDES permit at issue.” In its brief the EPA argues and the majority adopts the view that because the 1965 language is ambiguous it is not really a standard capable of enforcement. Furthermore, the EPA asserts and the majority also adopts the view that even if PL 89-298 presents a more stringent standard than that articulated in FWPCA, responsibility for implementing such standard was left solely to the discretion of the Secretary of the Army and that duty has since been fulfilled. Section 301(b)(1)(C), however, requires the EPA Administrator to effectuate more stringent standards for pollution control where created by federal or state statute, not just the “best practicable technology,” in the granting of section 402 permits. In this case, I cannot see how the EPA can fulfill its duty to implement “more stringent requirements” if the agency does not make a determination what constitutes “maximum feasible control” and expressly states that condition. “If an order is valid only as a determination of policy or judgment which the agency alone -is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. . . [A]n appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” Securities Comm’n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1942). If there is a difference between the two standards, and if, as petitioners argue, the 1965 is higher, the 1965 standard should control the EPA’s permit issuance with regard to Burns Harbor. I would set aside the EPA’s decision and remand for determination whether the effluent limitations prescribed in the permit fulfill the 1965 language and, if not, for imposition of limitations which would.

Burgess v. M/V Tamano

ALDRICH, Senior Circuit Judge. This appeal is from a finding of the district court for the District of Maine imposing upon the United States sole liability for a supertanker’s striking a submerged ledge, and a consequent oil spill. The government denies fault, or, at the least, asserts that the fault was not its alone, and contends that the district court’s contrary findings are clearly erroneous. On July 22,1972, at 0120 A.M., on a clear night, the Norwegian supertanker M/V TAMANO struck Buoy 6, a lighted buoy marking Soldier Ledge in Hussey Sound, Casco Bay, Maine, and seconds later grazed the ledge, holing her hull, and losing 100,000 gallons of heavy oil into the Bay. The TAMAÑO is a single screw vessel, 810 feet long, 128 foot beam, and was drawing 44 feet. In the modern style, her bridge is aft; the helmsman stands 650 feet from the bow. Her command was Captain Bjonnes, and she was being piloted by Captain Charles Dunbar, of Portland Pilots, Inc. Although the occurrence resulted in numerous lawsuits, in the present appeal appellees ship, and her owners, and the Pilots, are principally plaintiffs, and will be referred to as such, and appellant United States, charged with having caused the accident by mislocating the buoy, is the defendant. In a counterclaim, to be considered separately, the parties are reversed. Hussey Sound is the approach to the Portland oil anchorage, and runs essentially northwesterly. It is marked, basically, by three lighted buoys, originally numbered 1, 4 and 5, and numbered at the time of the event, 3, 6 and 7. No. 3 is a green flashing gong buoy at the entrance, marking shoal ground easterly of Peaks Island, which constitutes the westerly side of the Sound. No. 6 is a red flasher marking Soldier Ledge in the middle of the Sound, and No. 7 is a white flashing bell, easterly of Pumpkin Nob, further up. The Sound is a gut, and one could enter just easterly of Buoy 3 and proceed 1700 yards 320° (true) to the same distance easterly of Buoy 7, passing just westerly of Buoy 6, 1250 yards along the way. This description is taken from the charted position of the buoys, and is not exact, if only because the scope of their mooring chains permits the buoys to swing with the tide. This is too tight a procedure for large vessels. Their practice is to enter well easterly of Buoy 3 and proceed on a course less than 320°, and then take a starboard curve around Buoy 6 and thence, approximately 350°, to pass clear of Buoy 7. A swing starting too soon after leaving Buoy 3 could strike Soldier Ledge; too late would fetch the shelving ground making out from Peaks Island and Pumpkin Nob. The space between the 10 fathom curve on the chart west of Soldier Ledge and the 10 fathom curve east of Peaks Island provides a channel 300 yards wide. In order to permit the maximum room for making the turn, Portland Pilots in 1967 persuaded the Coast Guard to move Buoy 6’s station 150 feet easterly towards Soldier Ledge to a position “on the southwest tangent of the Ledge [because] we need every foot of channel room available.” This put it so close that the court found that if its mooring, or sinker, was on station on the night in question, a 350° line from the buoy itself would pass only 22 feet clear of the ledge. Under some circumstances, the buoy’s floating position might be even closer. Two days before, on July 20, 1972, the Coast Guard COWSLIP, a 180-foot buoy-tender, placed two additional buoys at the outer approaches to the Sound, and serviced and renumbered the existing buoys as 3, 6 and 7. The following day the Coast Guard notified Portland Pilots of the new buoys and the renumbering of the old ones, and the fact that it had verified their positions. That night the TAMAÑO, with Captain Dunbar aboard, left the vicinity of Portland Lightship at 2335 and headed for the Sound. The sea was calm, there was no wind, and upon the quick disappearance of a light fog, it was dark and clear. After passing easterly of Buoy 3 at 0113 at a distance of 450 to 600 feet, Captain Dunbar steadied on a 310° course and then watched the relative motion of Buoys 6 and 7 as he approached to determine when to begin his starboard turn around Buoy 6. It was then about two hours before low water and the current was ebbing out the Sound at % to 1 knot, about 154°. About four minutes after passing Buoy 3, Captain Dunbar got a “funny feeling” that Buoys 6 and 7 were opening sooner than he had expected. Fearing that he would run too far to the west and run aground off Peaks Island, he began his starboard turn, keeping Buoy 6 “fine off the bow,” intending to pass close to it. About three minutes later, although unaware of doing so, he struck the buoy, which had been lost sight of by the bridge complement because of the flare of the ship’s bow. The buoy was brushed aside and passed along the starboard side of the ship, where it was then seen. Captain Dunbar stopped the engines to avoid fouling the buoy’s chain, and as the buoy passed astern put the engines back full ahead and proceeded on a 350° course up and out of the Sound. It was not until they reached the anchorage that it was discovered that oil was leaking from the No. 1 starboard wing tank. Even then they did not realize they had grazed the ledge. The boatswain, who was standing in the bow, had reported the striking of the buoy, and the officers accordingly assumed that the buoy had holed the vessel. In point of fact, little appreciable damage was caused by, or to, the buoy. A long, straight gash was made by the ledge. Government Fault — The Evidence To commence with historical facts, when the COWSLIP serviced the Hussey Sound buoys on July 20, it believed Buoys 3 and 7 to be wrongly positioned, and moved them. In so doing it left Buoy 3’s sinker about 130 feet northeast, and Buoy 7’s about 175 feet northwest, of their charted stations. It did not move Buoy 6, believing it to be on station. The ultimate question upon which government liability depends is whether Buoy 6’s sinker was in fact in its charted position (“C”), or was some 215 feet southeasterly thereof, in the position found by Wright (“W”), a professional surveyor, shortly after the casualty. We may say, in anticipation, that because of the demonstrated incompetence of the COWSLIP’S new officers, no weight can be attached to their July 20 verification. By a singular circumstance, but based upon an elaborate reconstruction which the court warrantably accepted, if the. TAMAÑO merely grazed the buoy, as the court found, the fact that she struck Soldier Ledge where it was found to be “coppered” meant that the buoy was in position “W,” but if the buoy’s initial contact was 39 feet inboard by the anchor, where the boatswain testified, this corresponded with its being at “C.” In a sense, therefore, the case turns entirely upon the acceptance, or rejection, of the boatswain’s testimony. After the ship entered the Sound, Bos’n Hanssen, whose duty would be to let down the anchor, proceeded to a platform at the starboard side of the forward end of the forecastle. He was not a bow watch, and all he did initially, as the court found, was to “relax” while “awaiting orders.” He suddenly observed the flash of Buoy 6, 30-40 meters ahead, in a position he thought at first would escape collision. However, it did not, but came, he said, in contact with the ship’s bow just below the starboard anchor, then tilted part way over and proceeded down the side. He thought he heard it strike twice again, but this was out of his sight. The court believed Hanssen that the buoy was struck — and disbelieved Captain Dunbar that “we never came within, I would judge, 5 feet of it” — but concluded that Hanssen, although the only witness, was wrong as to the location, and that instead of striking inboard by the anchor the buoy merely “grazed” the ship. In so discrediting him it found as follows. “Hanssen’s testimony . . . was substantially shaken on cross-examination. The source for most of this, however, was only counsel. In his closing argument one of plaintiffs’ counsel, whose anxiety to dispose of Hanssen is understandable, but whose disregard of the record is less so, said the following. “[The government’s] whole case is predicated on one man’s testimony, Hanssen, who was completely unreliable. He was alleged to be a drunk; he had all kinds of axes to grind; his cross-examination destroyed his credibility.” Starting with its footnote 24, ante, the court was, of course, correct that Hanssen testified only by deposition — meaning that it could not observe his courtroom demean- or. The next statement, that “he did not actually see the buoy strike the . bow” is true only in a very limited sense— that he did not see the precise physical contact. Totally untrue is the court’s statement that “he was alleged to be drunk.” To be drunk at the time would cast a serious reflection on Hanssen’s testimony. There was no such allegation, let alone evidence in support. As to “numerous axes to grind,” no witness suggested this. Counsel’s sole support was his own suggestion, that Hanssen may have been vindictive because he had been posted for drinking. By Norwegian regulations, Captain Bjonnes was obligated to post him. There was no evidence that Hanssen felt it unwarranted, far less that it furnished him with “all kinds of axes.” Hanssen was hoping for continued employment; if he had any axe, it was not to swing against the ship. The court’s statement that Hanssen was “considered unreliable” was, again, made up out of whole cloth, unless restricted to what plaintiffs’ counsel may have personally considered. Put to it to justify their charge that Hanssen was “completely unreliable,” plaintiffs’ brief can only assert that Hans-sen was restricted from certain activities because his “vision was suspect.” The “suspect[ed]” defect was that, since 1956, he had color impairment. He had been a boatswain for ten years, and his duties were to “[p]ut the men to work.” This is scarcely consistent with complete unreliability. Nothing in the record supports this serious charge, or the court’s acceptance thereof. Next, we can see no relevance in Hans-sen’s being “unable to explain why he failed promptly to report to the bridge” the fact they had hit the buoy. In the first place, he did explain — that he was not the lookout, and that he assumed the bridge had seen it, which caused him to run to his position to stand by for orders to anchor. We may add that if there had been any further duty, the fact of contact, not the exact spot, would seem the reportable emergency. The same must be said with respect to the court’s criticism of Hanssen for “not mentioning] this fact until ten minutes later when Storheil came forward to supervise the anchoring.” Perhaps because it confused First Officer Storheil with Chief Officer Steinsvaag, the court failed to note here, or elsewhere, that Officer Steinsvaag, the one to whom he did speak, testified that Hans-sen told him, “It hit under the anchor. . He said on the starboard side, under the anchor.” It is difficult to think that this unbiased, prompt corroboration of Hans-sen’s exact account, made at a time when there could have been no appreciation of the significance of the precise location, was not worthy even of mention when weighing Hanssen’s credibility. Finally, we return to the text of the court’s opinion, to which the foregoing was attached as explanatory footnote 24, that Hanssen “was substantially shaken on cross-examination.” We have read his deposition with care, and find it straightforward and direct, even painstaking. It was not shaken by anything recited in the court’s footnote, nor by anything else. Hanssen was on a platform by the bow. He was an experienced seaman. Totally alert, when he saw they were about to strike, he “lean[ed] over the rail” to see. The anchor was to his left. The outer part of the bow, where it blends into the side of the ship, viz., where the court’s “grazing” must have occurred, was not only on his other side, but, as the exhibits show, considerably astern of him. We can understand why plaintiffs would like the court to believe he was drunk, prejudiced and unreliable. These charges being totally unsupported, we share the government’s feeling that the only basis for rejecting Hanssen’s account could be that the evidence that the buoy was off station was so compelling that, somehow, he had to be wrong. Because the court did not assert reliance on it, we deal only briefly with a matter made much of at the trial, Captain Dunbar’s “funny feeling” that Buoys 6 and 7 were opening prematurely. The court found that Captain Dunbar felt “that the vessel had not been on the 310° course long enough for the buoys to be opening.” This would be consistent with Buoy 6’s sinker being at position “W,” 215 feet southeasterly of “C,” and almost correspondingly nearer to where Captain Dunbar believed himself to be. But equally it would be consistent with Captain Dunbar himself being further ahead than he thought. At night Captain Dunbar had no landmarks to guide him — only the buoys, and, as plaintiffs’ counsel put it in oral argument, “a time clock in his mind.” In point of fact, the clock was improperly programmed. Captain Dunbar estimated his speed at 5V2 knots. Based on the testimony of the ship’s officers, and the arrival time at the anchorage, the court found the speed to be 6-7 knots. An underestimate of only V2 knot for the four minutes would account for a 200 foot variance in the ship’s position. We do not pursue this matter except to observe that under the circumstances Captain Dunbar’s funny feeling would seem due to misplacing himself, rather than attributable to a 215 foot misplacement of the buoy. The matter apparently troubling the court the most about Hanssen’s testimony, apart from its found inherent defects, was that his location of the contact was “inconsistent with the uncontroverted physical evidence of the minimal damage to the buoy found following the casualty. The probabilities are convincing that [for Tamaño to strike the] buoy bluff on its bow would have badly damaged, if not destroyed, the buoy body, cage, protective ring and light.” Plaintiffs’ counsel likened this to an automobile striking a brick wall. A government expert said this was an incorrect comparison. “[T]hat’s a different thing altogether. That’s not — that’s permanent, solid, that’s not drifting. A buoy is almost drifting because you can hit a buoy and she will go with you.” All government witnesses testified that substantial damage is by no means inevitable, for this reason, and because of the cushioning, or sidesweeping effect of the bow wave, or pressure gradient. Although the court realized to some extent that this was the government witnesses’ position, it went on to say, “all three conceded the likelihood that the buoy would have sustained more damage than it did.” To this,.after referring to the testimony of the plaintiffs’ expert, post, it added, “In short, all four experts concur that the damage observed on the buoy after the casualty was far less than that which they would have anticipated from the collision described by Hanssen.” (Emphasis supplied.) Not only was there no concurrence, this appraisal was incorrect as to all four of the witnesses. Captain Young testified that because of the buoy’s yielding, ante, he would not expect it to be damaged at all. Captain Stap testified, Q. “Would you expect the buoy by reason of that collision to be damaged in any particular way?” A. “No.” He added, “You might knock off the radar reflector. You might at times even knock the light out, but I have run over buoys recently and they are still lit. . . . ” Captain McNaughton testified, “[Y]ou could certainly have damaged the radar reflector and so on, but as far as damaging the buoy completely so that it would sink, no, it would just roll down along the side of the ship.” No cross-examination reduced any of this testimony. Finally, the court substantially overstated the evidence offered by plaintiffs’ expert in rebuttal. “The single navigational expert called by TAMANO-Pilots on this point, Captain Arthur H. Fertig, testified that the buoy would have been completely destroyed as a result of the impact.” Captain Fertig expressed no such opinion. His sole testimony was that he had had one experience, and that this was what happened. A single occurrence is no basis for a finding of probabilities. Far more impressive is the fact that, although he was their own expert, and provided an opportunity to contradict the government’s, plaintiffs refrained from asking for an opinion as to probabilities. Instead, counsel supplied it themselves. One witness did support plaintiffs on this subject, Professor Hamilton, a professor of naval architecture. He was not a “navigational expert,” and testified to no actual experience with striking buoys, nor to any scientific analysis or experiments. Instead, he was prepared to generalize, drawing an analogy with butterflies striking the windshield of a fast moving automobile. “I can’t conceive of a ship with this fullness of bow hitting a buoy of this nature at ilh knots at that angle on the waterline without substantial damage incurred by the buoy.” The court disbelieved this. “[I]t is possible that the Tamaño might have hit the buoy under her starboard anchor without causing substantial damage . . . .” Thus, four qualified and experienced captains, rather than testifying that the probabilities pointed to substantial damage to the buoy, testified, in effect, that consequences to a struck buoy are problematical and a matter of chance. In this circumstance it was a considerable stretch for the court, solely on the failure of a naval architect to conceive that there would not be substantial damage, to find that “[t]he probabilities are convincing [that the buoy would have been] badly damaged, if not destroyed.” We can only think that it did so as the result of having misstated what it recognized as the navigational experts, and having been persuaded of the “high probability” of snagging by counsel’s horizontal mooring chain demonstration. Counsel’s ability to supply favorable answers to questions he never asked peaked again with respect to the mooring chain and the claimed consequences to the buoy had it been struck in the manner Hanssen testified. The court found, “At oral argument, Pilots’ counsel also persuasively demonstrated the high probability that if the buoy had been struck by the Tamaño on the starboard bow where Hanssen says he saw it . the Tamano’s bulbous bow would have snagged the buoy’s chain and carried the buoy and the sinker with it, causing very substantial damage to the buoy.” This persuasive demonstration consisted of drawing across the bow profile of Tamano’s hull that was in evidence a buoy, and a line therefrom, representing the mooring chain, at an almost horizontal angle. We may agree that, given the mooring chain so positioned, counsel’s demonstration would have been persuasive. What is notable, however, is that counsel had neglected, both in cross-examination of the government witnesses, and direct examination of his own, to make this demonstration through an authoritative source. The reason is not far to seek — the witnesses would have felt bound by the evidence. A mooring chain is not like a plastic rope, which, with the pull of the current, might extend in a flattened curve from the sinker to the buoy. Rather than as counsel depicted it, because of its great weight and the relatively light pull of the buoy the chain would extend along the bottom until it finally rose to the buoy. The uncontroverted evidence showed that in a modest current the ascending angle of the chain is but a small departure from the vertical. A picture may be worth a thousand words, but not one drawn by counsel without the words to back it up. The demonstration was worthless. Professor Hamilton’s testimony, in the face of the navigational experts, stands but little better. We cannot support the court’s probability finding even if hypothetical probability would be enough to offset factual testimony of an eyewitness. Cf. J. Gerber & Co. v. S.S. Sabine Howaldt, 2 Cir., 1971, 437 F.2d 580. A matter of more serious consequence to the government, absent an explanation, is the admitted fact that the sinker was found about 215 feet southeasterly of its charted position shortly after1 the event. The government did furnish an explanation, but the court did not accept it. The government called a Professor Breslin, whom the court described as “unquestionably a distinguished naval architect and hydrodynamicist.” Dr. Breslin testified to elaborate computations based upon the dimensions of the ship, its propeller, etc., and of the buoy, and gave an opinion that the force of the wake upon the buoy would be sufficient to dislodge the sinker and drive it astern, viz., in the direction away from its charted position that it was in fact found. The thrust of TAMANO’s propeller was sufficient to move against the current at 6-7 knots over the bottom (due to a more modest input, Dr. Breslin’s computations had been on an assumption of 5V2 knots through the water) a hull with a displacement of 128 foot beam and 44 foot draft. If plaintiffs’ expert, Professor Hamilton, could quarrel with Dr. Breslin’s opinion of the force upon, and the consequences of the wake to, a buoy that was caught up in it, we may be sure he would do so. He made no attempt to. The court, however, rejected Dr. Breslin’s conclusions. “While Dr. Breslin’s hypothesis is not beyond the realm of possibility, it appears to be highly speculative and to be based upon several critical assumptions which are not supported by the record.” The court then listed four matters, two of which are really repetitious; the third was expressly rejected by Dr. Breslin, and the fourth, which the court described as the “most serious flaw,” we find demonstrably irrelevant. Dr. Breslin admitted to one vulnerability. If the buoy was more than about 10 feet abeam when it passed the stern, it is unlikely that it would be drawn into the wake. The court found the distance to be greater. Its analysis, however, in a number of respects conflicts with, in others ignores parts of, the record. The court found, “After grazing Buoy No. 6, the Tamaño completed its turn and the buoy was 20 to 30 feet to starboard when it passed abeam of the bridge. The buoy was logged abeam the pilothouse at 0120. As the buoy passed down the Tamano’s starboard side, Captain Dunbar stopped the vessel’s engines to avoid having the buoy’s mooring chain foul the propeller (0119.5). As the buoy passed clear aft, he put the engines Full Ahead (0120), and steadied on a course of 350°. “Dr. Breslin also assumed that there was no change in the Tamano’s heading as the buoy passed down the vessel’s side and that the ship’s rudder remained amidship. The eyewitness testimony, however, discloses that the buoy was 20 to 30 feet to starboard when abeam the bridge; the stern of the vessel was moving away from the buoy; and the helm was not amidship when the Full Ahead order was given. Under these circumstances, it is highly' dubious that the buoy could have been drawn in at a right angle to the vessel some 85 to 95 feet into the center of the propeller race at the point between 88 and 100 feet behind the stern where it would have been subjected to the 10,000-pound maximum force of the race. Dr. Breslin admitted that a port or starboard rudder would split and deflect the propeller race.” To begin with the second paragraph, Dr. Breslin was not concerned with whether the vessel ran a straight course all the way from the point of contact with the buoy, but simply whether the buoy was close enough to the stern to be drawn into the wake — not at a right angle, but with the flow of water rounding the stern to fill in the space vacated by the ship. If the buoy was 20-30 feet away from the hull as it passed the bridge, and particularly if Captain Dunbar continued a starboard turn, which would swing his stern away from the buoy until it “passed clear aft,” it would not have been so drawn. There are several vulnerable points in the court’s findings, however. The first is internal inconsistency. Elsewhere the court found, based on “uneontroverted testimony,” “[T]he gyro reading as Buoy No. 6 passed abeam the bridge [was] the vessel’s heading as she struck the Ledge.” Even in the W position, the one further away, the ship had to have struck the ledge before her stern reached the buoy. The entire passage over the ledge was straight. Captain Dunbar could not have steadied his course as the buoy passed clear aft. Of the court’s several findings, if its above-quoted passages are analyzed, we prefer the one that Captain Dunbar completed his turn after striking the buoy, partly because it corresponds with the testimony of Captain Bjor.nes, who said that the buoy maintained the same distance all along the side as the ship proceeded, and because it makes sense that he would not have continued to turn easterly after reaching a buoy he must have known was already as close to the ledge as was possible. If the ship was on a straight course, granted that the bow wave could have pushed the buoy to one side, as Dr. Breslin recognized, the question is the accuracy of the court’s finding that the buoy was 20-30 feet away at the bridge. The court’s figure stretches the contemporary consulate declaration testimony of the ship’s officers, one of whom estimated one meter, and the other about two fathoms, off the side, although, admittedly, at a later date he changed this to 18-24 feet, and, instead, accepts the highly interested testimony of Captain Dunbar. We need not question the captain’s good faith, but he was vocal as to the amount of assistance his recollection received from counsel and his co-pilots. We may suspect that at the time of the incident he was more concerned about stopping the engines to avoid fouling his propeller and, notwithstanding the court’s finding of an intention to hug the buoy within a few feet, post, more disturbed about being there at all, than he was in noting the exact distance of the buoy from the hull. The court’s second reason for dismissing Dr. Breslin’s opinion we have already disposed of. See n. 13, ante. Its final reason, which it terms the most serious, suggesting possible reservations about the correctness of the others, was totally inapplicable. “The most serious flaw in Dr. Breslin’s analysis, however, is that it provides no explanation for the undisputed fact that Buoys No. 3 and No. 7 were both found to be off-station by significant distances.” Rather than a serious flaw, this was no flaw at all. In no way did Dr. Breslin seek to explain the position of Buoys 3 and 7, and in no possible way did their position bear any relation to his calculations, or testimony. Dr. Breslin’s sole concern was the effect of the propeller on Buoy 6. Finally, in considering the likelihood, vel non, of Dr. Breslin’s explanation, we note, if his testimony be rejected, the extraordinary coincidence that if the buoy was not, in fact, moved by the ship, its unexplained extraneous movement off station happened to take precisely the direction that Dr. Breslin’s hypothesis called for. In this circumstance, to discard his testimony because of the trial recollection of distance of plaintiffs’ witnesses seems scarcely to follow probabilities. Yet their testimony, and specifically the enlargement over the consulate declarations when the officers’ memories were still fresh, is the only one left of the criticisms advanced by the court. We cannot concur that Dr. Breslin’s hypothesis was “highly speculative.” Rather, everything considered, we believe the objection to be. The court also relied on the testimony of one Pastore, a diver employed by plaintiffs to inspect Buoy 6’s sinker on July 26. It was agreed that the sinker had not moved, unless by the TAMAÑO, between the time of servicing on July 20, and Pastore’s inspection. Pastore found it upside down on rocky bottom in 120 feet of water, with no indication that it had recently moved. He based this conclusion on a swing around the sinker which showed “no indication of any movement,” i. e., no disturbance. He was not asked on either direct or cross to give any further description or explanation of the bases of his opinion. He also found the bottom to be covered with rocks, with some sand and mud under the rock. Since the sinker had rolled, rather than dragged, see post, it is far from clear that such movement on such a bottom would have left any signs of disturbance. But we are not left to speculate since Pastore’s further specific findings convincingly show that the sinker had indeed moved at some time after July 20. Pastore found that the chain was wound three times around the sinker, so that of its 240 feet, only 175 feet were free. One may wonder what kind of force produced this result. The government makes a further point. Pastore inspected the buoy’s sinker on July 26 at 0600 hours, which was low tide, while COWSLIP serviced the buoy on July 20 around 1700 hours, which was approaching high tide. Accordingly, if at position W, the sinker was then in about 127 feet of water. The court found, in accordance with Lt. Hall’s testimony, that the mooring chain was not taken up on a short stay. However, Lt. Hall testified that when a buoy is brought aboard for servicing, even though not on a short stay, the practice is to disconnect the chain and lay 55-60 feet (“roughly 60 feet”) of chain on the deck. If on July 20 the sinker was already in position W at which Pastore found it, and one subtracts 127 feet from 175 feet of free chain, there are only 48 feet left, from which must be deducted whatever would be consumed by the COWSLIP’S freeboard. On this basis, not only could normal procedure not have been followed without unwinding some of the turns from the sinker, but if even half the normal amount of chain were placed on the deck they would have had to have been on a short stay, which the court found they were not. The net effect of Pastore’s testimony was not the fact credited by the court that he saw no indication of movement, but the conclusion that the sinker could not have been in the W position when the buoy was serviced on July 20. If that conclusion is not compelled, at the very least it fully offsets whatever persuasiveness there was in Pastore’s failure to note signs on the bottom of recent movement. We add, as a final comment, that this persuasiveness impressed the plaintiffs themselves so little that their position in final argument was that the COWSLIP herself had moved the sinker on July 20. An area most troublesome for the plaintiffs is the failure of the Pilots to have noticed Buoy 6’s displacement if, in fact, it was displaced prior to the casualty. This buoy was moved from its original station to C in 1967. It was repositioned there in October 1969. Three times thereafter, prior to July 20, 1972, this position was verified. Unless these prior verifications were incorrect, it had been at C for a long time. If, on the other hand, it was at W on July 22, but had moved there recently, it must have moved in some unaccountable fashion, this being summer and not a storm period. The court did not address itself specifically to these alternatives, but the tenor of its opinion assumes the error to be of long standing. The government asks if Buoy 6 was, in fact, off station, how it could be that the Pilots, with their constant use of the Sound, had never noticed it. Plaintiffs themselves conceded the general principle. In oral argument below, while asserting they were not obligated to do so, the Pilots agreed that “[i]f they see a buoy that looks wrong to them, they report it immediately.” In response to the court’s inquiry how Pilots had failed, previously to the night in question, to see that the buoy was wrongly positioned, counsel stated, “First of all, there is no evidence here as far as I am concerned that the COWSLIP didn’t do something to move that buoy off station when it was out there.” The court, however, found that the buoy was not so moved. Nor, if the buoy had been moved before then, was counsel’s reply an answer addressed to the question why this had not been observed. Rather than a “first-of-all” answer, it was none. Counsel’s second reason was that correction was the government’s responsibility, not the Pilots’. Conceding this to be legally so, it did not explain how the Pilots, in their own interests, could have failed to notice the displacement. Buoy 6 was the focal point of the turn which was, by common agreement, the most critical part of the passage. Portland Pilots were so conscious of its importance that they had sought the change from its pre-1967 location in precise terms, viz., easterly, 150 feet. Buoys 6 and 7 were the signposts and gateposts, of the channel. A 215 foot southeasterly change from Buoy 6’s new position, if effected, would have been a second 150 foot movement easterly, when the first had been determined to be the maximum permissible, and 150 feet southerly, increasing its distance from Buoy 7 by over 15%. If a 150 foot easterly movement effected an appreciable change in the curve, a second 150 feet would also seem appreciable. The court found that “even in the daytime the pilot relies almost exclusively upon Buoys No. 3, No. 6 and No. 7.” At the same time, a pilot is constantly checking. Taking Captain Dunbar’s testimony itself, it is almost impossible to think that a discrepancy of this amount, in a relatively narrow passage, could have been long overlooked. “There are some that you see and we are always continually looking for objects along our course or something that when we pass abeam of a buoy goes in back or a lighthouse goes in back, you see the relationship of how they move, and this is true going through Hussey Sound during the daytime; . . .” “[T]he chart is in your head.” “[Y]ou just contact all this information and it goes subconscious . . . . It’s amazing how you can spot something different whether it’s been a week since you piloted or if you have been on a vacation and you get two or three weeks off, you . can pick out something that’s happened, that’s different.” Captain Dunbar’s articulation of his intimate, and graphic, knowledge was not matched by an explanation why it would not have led him to detect a mispositioning of a vital mark so substantial in extent that it caused a grounding. He had been through the Sound over 100 times. The Pilots had averaged a trip a week during 1972. It is no wonder that plaintiffs attempted the answer that the change had occurred since their last passage. The court did not address itself to the question how the displacement that it found could have escaped the prior attention of the Pilots. It started to discuss it, but then, instead, proceeded to deal with plaintiffs testimony to the effect that the mispositioning would not have been readily discoverable that night. “Of particular significance, Buoy No. 7 was moved to a position about 175 feet to the Northwest of its charted position, which materially changed its orientation with respect to Buoy No. 6 and was undoubtedly the reason Captain Dunbar did not detect that Buoy No. 6 was off-station.” “The evidence . . . abundantly supports the conclusion that it was the Coast Guard’s misplacement of Buoy No. 7 which changed the pilot’s perspective and caused Captain Dunbar to commence the starboard turn too soon, and thereby to graze the buoy.” There was no evidence of any kind that Buoy 7’s mispositioning materially changed Captain Dunbar’s perspective. The only source we find was counsel’s argument. Captain Dunbar himself testified, “The sole reason for the incident is the Soldier’s Ledge Buoy No. 6 was off station.” Because Buoy 7 was a very considerable distance ahead, we believe its movement did not, in fact, “materially change its orientation” with respect to the TAMAÑO. But even had it done so, its change on July 20 could in no manner explain why Buoy 6’s earlier position, if erroneous, had not been noticed prior to that date. The court’s apparent failure to realize that the COWSLIP’S having moved Buoy 7 off station on July 20 could not affect the pre-July 20 situation is reflected, indeed, emphasized, by its next sentence, a total non sequitur. “The misplacement of Buoy No. 7 also adequately explains the reason groundings had not occurred prior to July 20.” The court’s only statement of any relevance to the period prior to July 20 is in its footnote 33. It there observed that previous passages of vessels of TAMANO’s size might have successfully traversed the ledge because they might have occurred at the upper stages of the tide, when there would have been clearance. While we think a better reason is that no careful pilot would have been there at any stage of the tide, all that this could explain is why the Pilots might not have learned of a mispositioning the hard way, not why they would not have noticed the buoy’s displacement by visual observations conducted as part of their duty. As to this, the record offers no answer. This was not because they did not know how to supply an answer if there was one. See Afran Transport Co. v. United States, post, n.27, another COWSLIP case. Having in mind that plaintiffs had the burden of proof, their failure to explain either some cause of a recent movement, or why no one noticed a long-standing error, must weigh heavily against them. Government Fault — Conclusion In reviewing the decision of a court sitting without jury, the test is not whether there can be found “substantial evidence” supporting the conclusion. Case v. Morrisette, 1973, 155 U.S.App.D.C. 31, 38, 475 F.2d 1300, 1307 n.35; Jackson v. Hartford Accident & Indemn. Co., 8 Cir., 1970, 422 F.2d 1272, 1275 (Lay, J., concurring), cert. denied, 400 U.S. 855, 91 S.Ct. 86, 27 L.Ed.2d 92; Manning v. Gagne, 1 Cir., 1939, 108 F.2d 718. Rather, the question is whether, on the record as a whole, the appellate court views the conclusion as clearly erroneous, viz., “when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. In the present case we have less than our usual hesitation in so finding because much of the court’s underlying reasoning and important subsidiary findings are demonstrably mistaken. One of the primary reasons for F.R.Civ.P. 52(a)’s requirement that the court’s findings be recited is to facilitate appellate review by making it clear how it reached its result. Lemelson v. Kellogg Co., 2 Cir., 1971, 440 F.2d 986, 988; 9 Wright & Miller, Federal Practice & Procedure § 2571. Just as a conclusion not accompanied by subsidiary factfindings adequate to indicate how it was reached may be vulnerable, Fehringer v. Bluebeard’s Castle, Inc., 3 Cir., 1968, 395 F.2d 851; see Featherstone v. Barash, 10 Cir., 1965, 345 F.2d 246, 249-50; Lemelson v. Kellogg Co., ante, one in substantial measure supported by unwarranted findings is less entitled to weight, cf. United States v. Jobin, 1 Cir., 1976, 535 F.2d 154, 157 and n.5. The burden was on the plaintiffs. Of all the circumstances relied on by the court, only two support them. One is the fact that the buoy was found off station after the accident. The only real impeachment of the answering testimony, however, was the questionable finding of the distance the buoy was away from the ship at the time it passed the bridge. We have pointed out the weakness of its finding a certain omission in Dr. Breslin’s opinion to be the “most serious flaw” — -an omission that was, in fact, of no relevance whatever. The other circumstance was the lack of substantial damage to the buoy. While to a layman this might seem highly significant, it did not to qualified experts. Even the court, although denigrating their evidence by finding a nonexistent testimonial agreement, conceded the possibility of little damage, but thought the opposite was “far more likely.” We cannot give such weight to a naval architect’s expectation of certain destruction in the face of the three experienced government navigational experts, and the silence of plaintiffs’. Neither in this court, nor in the court below, have plaintiffs responded, even through their resourceful counsel, to the silence of the Pilots themselves, who are faced not with a hypothetical, but the hard reality of a vital mark about which they did not complain. We are here reminded of Sherlock Holmes’ dog in the nighttime, the significance of which was that he did not bark. Above all this stands the clear and inherently credible testimony of the eyewitness Hanssen. Viewing the record as a whole, and plaintiffs’ obligation to prove their case by a preponderance of the evidence, we hold the finding that the buoy was misplaced was clearly erroneous, and cannot stand. Navigational Negligence. Both because of its indirect bearing on plaintiffs’ claim that the casualty was the government’s fault, and because of its relevance to the government’s counterclaim, post, we deal with Captain Dunbar’s procedure. The court found that it was “his intention ... to clear the buoy by at least five feet. We take this to mean that he intended to be not significantly further away, or the specification of such small footage would seem meaningless. At oral argument plaintiffs’ counsel felt he testified in terms of intending 20-25 feet. In point of fact, he gave no figure, but simply stated an intention to pass “close.” He did state (erroneously) that, in fact, he came no closer than five feet, which may have left the court with the impression that this was his original purpose. But whether such proximity was intended or unintended, we find he was at fault. It was, of course, essential, to avoid being carried by the tide onto Peaks Island. However, the channel, even between 10 fathom contours, was 300 yards wide. Rather than the “tight turn” before the Pilots induced the Coast Guard to move the Soldier Ledge buoy in 1967, it presented, in Captain Dunbar’s words, a “long, slow swing,” a “long, gradual swing.” No witness, including Captain Dunbar, testified why it should be necessary to “hug” the buoy with such proximity, particularly a buoy on a line that passed, literally, within feet of a submerged and dangerous ledge. Particularly, too, at night, with a ship so large that the pilot stood over 200 yards from the bow, a bow which the court found, because of its flare, would conceal the buoy altogether on the last of the approach. The buoy itself was all there was to go by. The seriousness of its final occlusion was demonstrated by the fact that the ship’s captain and first officer, although in their consular declaration they had felt that they “were getting too close,” and “passing too close,” to the buoy were, like Captain Dunbar himself, not aware that they had collided with it. Even so, there was marked concern on the bridge that their proximity risked fouling the propeller. Captain Bjonnes, for example, testified he “rushed out.” Like the government witnesses, and in the absence of any explanation, we see no possible purpose to be served by approaching so close. One must wonder what, viewed a priori, Captain Dunbar intended to do after he had brought his bow to within feet of the buoy, if that was his intent. Assuming his capability of maneuvering his bow with such accuracy, he still had the stern to contend with, and the danger of fouling. With the bow that close, he faced two alternatives: in order to keep his stern clear of the buoy and its mooring chain, he must continue to run straight as a die, in addition to stopping his engines as the buoy passed that same few feet from his stern, or he must continue • a starboard (easterly) turn to swing his stern away from the buoy. The latter would mean, since a ship pivots, swinging his bow in further towards the ledge when the buoy was already, at the Pilots’ 1967 request, “every foot” as far east as it could go. In spite of the court’s finding, we must greatly doubt that such closeness was Captain Dunbar’s original intention. But, conversely, if it was not his intention, to have maintained his curve towards the buoy, and not straighten out .until he struck it, can only reflect on his eyeballing capacity, or on his use of it. However one looks at it, he was guilty of a gross fault. Instead of finding it a fault, the court found Captain Dunbar’s hugging “customary” “without contravention.” Holding up against the ebb tide was customary, but Captain Dunbar markedly overdid it. The court’s finding overlooked the declaration opinions of the ship’s officers that they were too close. More serious, it overlooked the testimony of two government experts, who stated that proper procedure called for clearing this buoy by 100 feet or more. While it is true that one government witness conceded that special circumstances might justify approaching buoys to within 25-50 feet, with a channel that wide no one testified to such circumstances, and this witness expressly denied them. Rather than “customary” “without contravention,” the evidence was precisely the opposite. The only commendation of Captain Dunbar, unless one so reads Captain Bjonnes’ deposition, came, once again, from counsel. On this basis, even if the buoy was mispositioned, an, if not the, operative fault was Captain Dunbar’s. In charge of a bow over 200 yards away from him, affected by a current which he agreed he could not precisely estimate, he steamed by his own observation, whether intentionally or not, to within a few feet of a buoy known to be almost on top of an invisible ledge. The Peaks Island shoals for which he professed apprehension were 300 yards (less the ship’s beam) distant. Even if the buoy were in position W, if he had straightened out in time to keep the 25-50 feet away that one of the government witnesses conceded could be an appropriate minimum in exigent circumstances, there would have been no grounding. In oral argument plaintiffs attempted to lay the blame for Captain Dunbar’s striking the buoy upon the turn that he was caused to make because of the buoy’s mispositioning. “Once you start that turn, which I say was triggered because of the angle between Buoy 6 and Buoy 7 was wrong, because they were off station, there was no way to correct it, and I think the United States’ experts in the evidence have agreed with this.” The court, in its opinion, responded, “[T]he expert navigational witnesses agree that once the Tamaño was committed to the starboard turn, contact with the buoy was inevitable.” The turn, in other words, committed her to proceed inevitably, like a train on a track. There was no such testimony, let alone an agreement. The evidence was that there had to be a carefully taken curve; there was none that it had to be exact, or persisted in until a buoy, in plain sight, was run down. The court’s finding shows not only a misreading of the record, but a serious misconception of piloting procedure. In the first place, to determine an exact course in advance one must know the point of departure. Captain Dunbar did not know, and never planned to know, with precision, where he started his turn. He made no attempt to fix the distance the ship passed abeam of Buoy 3. Nor did he attempt to measure his speed, and he denied confidence in the exact amount of current across his course. In these circumstances, even had he known his original distance from Buoy 3, after running “about four minutes” he was necessarily in a gray area in which he could not locate himself without measurements, none of which he made. Even had he done so, we may wonder how it would have enabled him to determine in advance an exact curve that would hug a distant buoy by clearing it by a few feet. Captain Dunbar’s procedure was quite different. Without concern for his precise point of departure, he set his course “fine by the buoy,” using “ten or fifteen or twenty degrees right rudder” to “maintain a constant fine bearing,” a procedure which, if he meant “constant” literally, meant increasing the curve as he proceeded. See n.8, ante. This procedure was not dependent upon the exact point at which he commenced his curve. Nor was he on an “inevitable” track. Rather, during these three minutes the ship’s course was determined by his periodic instructions. Speaking with reference to this very passage, his companion pilot, Captain Ferguson, put it clearly. “Due to Captain Dunbar’s orders, the vessel doesn’t stay on a perfect track line; it moves back and forth.” See also, n.21, ante. Captain Dunbar obviously intended, at some point, to terminate his curve towards the buoy and straighten out. His error, although the buoy was fully visible— First Officer Storheil testified that even before the start of the turn he could see the buoy itself, not merely the flash, and Captain Dunbar testified that by his “eyeballing” he could tell its distance more accurately than by radar — was that he failed to do so soon enough. No witness testified that anything in the original turn obligated this persistence, let alone that contact was inevitable. Plaintiffs point to testimony that a turn started too soon would lead closer to the buoy. Without pausing here to analyze just what this meant, it was not a statement that one was committed not to desist before the closeness of a seen object became too close. Quite apart from striking the buoy, by his own interpretation of his distance away, Captain Dunbar came too close. • On the record, we see no excuse. We cannot accept the court’s finding that Captain Dunbar was not negligent; the contrary was established. The TAMANO’s Premature Entry into Hussey Sound. Looking at the total picture rather than the individually discussed parts, the TAMAÑO came through a channel 300 yards wide, struck a lighted buoy on the outer edge known to be every foot as close as possible to a submerged ledge, and walked away from the consequent environmental destruction by saying that the buoy must have been misplaced. Buoys do get misplaced, and regrettable as it is that the Coast Guard should man a buoy tender with unqualified personnel, human error will always be with us. See n.l, ante. Every nautical publication emphasizes the dangers of total dependence upon floating aids. At one point in his testimony Captain Dunbar stated, Q. “[D]id you in fact rely strictly on those three buoys?” A. “Yes. There’s nothing else there to rely on. [A]t night, one o’clock in the morning . . . there are no shore lights, there are no spires on [sic] houses with which one can see. It’s like going through the inside of a black cat. You have three buoys and that’s it. . [If you have a shoreline available] [t]hat makes it a heck of a lot easier during the daytime, yes, but it is not possible at night.” • In this circumstance the government argues that it was negligence on the part of the ship, as well as by Captain Dunbar, to have entered at night when, by waiting a few hours outside, which Captain Bjonnes testified he would have been willing to do because he could not discharge for another 24 hours, not only would they have had daylight, but the ledge itself would have been sufficiently covered to remove the danger. In view of the enormous capability of harm in case of miscarriage, as this case demonstrated with only a partial spill, we see much merit in this claim. Urie v. Thompson, 1949, 337 U.S. 163, 179, 69 S.Ct. 1018, 93 L.Ed. 1282; United States v. Carroll, 2 Cir., 1947, 159 F.2d 169, 173; Restatement (Second) of Torts, § 298 (1965); W. Prosser, The Law of Torts, § 31 (4th ed. 1971). It was no sufficient answer that it was customary to enter at night, and that the Coast Guard had not forbidden it. Texas & Pac. Ry. v. Behymer, 1903, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905; The T. J. Hooper, 2 Cir., 1932, 60 F.2d 737, 740 (L. Hand, J.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571; Restatement, ante, § 33; Prosser, ante, § 33. Our rulings in other matters, however, make it unnecessary to pursue this question, except to observe that the court’s treatment was over-light. The Government’s Claim for Cleanup Costs. The court’s finding the government solely responsible for the oil spill defeated the government’s counterclaim under 33 U.S.C. § 1321(f)(1), formerly section 1161(f)(1), for certain cleanup costs that it had incurred pursuant to section 1321(d). Our reversal establishes this claim, unless Captain Dunbar, as a compulsory pilot, is to be regarded as a “third party.” Within specified monetary limits a vessel discharging oil in violation of section 1321(b)(3) and her owners are liable without fault for the government’s cleanup costs, with certain exceptions, the last being the act of a “third party.” While, in collision cases, any pilot is an agent of the ship, China, 1869, 7 Wall. (74 U.S.) 53, 19 L.Ed. 67, a distinction exempting the owners has been drawn in the case of compulsory pilots. Homer Ramsdell Trans. Co. v. La Compagnie Generate Transatlantique, 1900, 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155; People of California v. Italian Motorship Ilice, 9 Cir., 1976, 534 F.2d 836. The owners here, accordingly, urge that even though Captain Dunbar was not a third party as to the ship, he was with respect to them. We do not so construe the statute. There appears to be no specifically significant legislative history, other than a change from a House version based on fault to a Senate version in the direction of strict liability. H.R.Rep. No. 127, 91st Cong., 1st Sess. (1969); S.Rep. No. 351, 91st Cong., 1st Sess. (1969); Conf.Rep. No. 940, 91st Cong., 2d Sess. (1970), but this change itself indicates that unless the exceptions are narrowly construed, the legislative purpose would be largely vitiated. The first three exceptions, “(A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government,” (which, individually or collectively, must be “solely” responsible) are manifestly addressed to actions entirely outside the ship, or in the case of actors, to strangers. We read the final exception, “(D) an act or omission of a third party without regard to whether such an act or omission was or was not negligent,” correspondingly. To take a simple example, if a vandal opened a ship’s valve, this would be an act of a third party. However, if the valve failed because of an act of the installer, the owners should not be permitted to avoid liability by claiming that the installer was a third party because he was an independent contractor rather than an employee. The installer acts for the ship. Equally, though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship’s master. China, ante, 74 U.S. at 67-68, 19 L.Ed. 67. The owners lament that they were legally forced to take Captain Dunbar (although it is clear on the evidence that they would have taken a pilot in any event). So, too, they may have been forced by practical necessities to hire the particular shipyard that installed the defective valve. We agree with the government that they must take the ports they select as they find them. In providing for liability of the owners, section 1321(f)(1) in no way indicates a desire to recognize any distinction between her owners and the ship. If they were not coextensive, we would have the singular result that if a spill were caused by a state-licensed pilot who was voluntarily taken, the owners must pay their cleanup costs, and the government’s, sections 1321(i)(l), 1321(f)(1). If the state, however, in addition to licensing, made pilotage compulsory,' and the pilot, as against the owners, were a “third party,” the government would have to pay both costs, id., but, at the same time, under section 1321(f)(1) would appear to have a lien against the ship. We can not believe that Congress had any such intent. Nor, under the circumstances, need we consider the government’s claim that Captain Dunbar was not, in fact, a compulsory pilot. The Merrimac, 1872, 14 Wall. (81 U.S.) 199, 20 L.Ed. 873; Me.Rev.Stat, Tit. 38, § 82 (1964); 1927 Me. Act, Ch. 24, § 10. That such great consequences should turn upon the obligation to pay a pilotage fee, unaccompanied by any obligation to accept the services, would seem to us anomalous, at best. The owners must be held accountable. No contention is made that the TAMAÑO herself is not liable for cleanup costs, but whether we have jurisdiction to render judgment raises a possible question. The ship was attached by other plaintiffs in a companion action, but was not attached by the United States, and has left the country. However, claims were filed in the district court on her behalf against the United States, which submitted the subject matter of the government’s in rem counterclaim to the court’s jurisdiction. The Gloria, S.D.N.Y., 1919, 267 F. 929; The Toledo, E.D.Mich., 1873, 23 Fed.Cas. 1355, No. 14,077. We see no more reason for litigation to be a one-way street for a “personified” ship, see Air an Transport Co. v. S.S. Transcolorado, 5 Cir., 1972, 468 F.2d 772, 774, than for any other party. Cf. Adam v. Saenger, 1938, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649; Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 1924, 263 U.S. 629, 637, 44 S.Ct. 220, 68 L.Ed. 480. The Federal Rules of Civil Procedure bolster our conclusion. Rule 1 includes “cases at law or in equity, or in admiralty” within the scope of the rules. Under Rule 13 parties may bring counterclaims against opposing parties. The Supplementary Rules for Certain Admiralty and Maritime Claims (Supplementary Rules) apply to actions in rem. Supplementary Rules A(2). These rules set special provisions to govern amenability to suit of in rem claimants. Supplementary Rule E(8) does permit, in certain circumstances, restricted appearances to defend against in rem claims, but this rule does not give the same privilege to in rem plaintiffs. The Advisory Committee Notes to Supplementary Rule E(8) makes clear that this rule is the drafters’ response to the general liberal joinder rules. The narrow defendants’ privilege is to protect them from being submitted to an in personam jurisdiction over nonmaritime claims. This policy of fairness does not apply to those bringing claims. With regard to Captain Dunbar and his employer, Portland Pilots, Inc., the statute, at least arguably, makes no provision for the liability of the ship’s agent who caused the spill. Such omission would not help them. We do not believe that the statute was intended to revoke the principles of maritime torts. Cf. State of California v. S.S. Bournemouth, C.D.Cal., 1969, 307 F.Supp. 922. Liability of the ship in rem does not release the pilot from the consequences of his own negligence, People of California v. Italian Motorship Ilice, 9 Cir., 1976, 534 F.2d 836; Gray v. Johansson, 5 Cir., 1961, 287 F.2d 852, cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36, although we note here that while under the statute the government’s actual costs are the measure, on a maritime tort theory the burden would be on the government to show that its costs were reasonable. The liability findings and judgments of the district court are vacated. The cause is remanded to that court to dismiss the proceedings against the United States and to determine the cleanup costs incurred by the United States as herein defined, and to enter judgments therefor against the TAMAÑO, her owners, Portland Pilots, Inc., and Captain Dunbar. . The district court found, “[T]he record is replete with evidence of the COWSLIP’S ineptitude in setting and verifying the positions of the Hussey Sound buoys on July 20. The COWSLIP’S navigational personnel were grossly lacking in experience.” It could have said more. The government has spent an inordinate amount of time, by brief and oral argument, attacking this finding, which is not only not clearly wrong, but is clearly correct. Nor, of course, was it the first time the Coast Guard has been charged with a misplaced buoy. E. g., Afran Transport Co. v. United States, 2 Cir., 1970, 435 F.2d 213; Richmond Marine v. United States, D.S.N.Y., 1972, 350 F.Supp. 1210; Universe Tankships, Inc. v. United States, E.D.Pa., 1972, 336 F.Supp. 282 (improper buoy tendering). The government does not question that Coast Guard error in this regard can impose liability. Cases, ante. . There was no bow watch. The starboard bridge watch, one Garcia, was not called by the ship, for reasons that do not appear. . Hanssen stated unreservedly that he saw the initial contact, and that he assumed later sounds (one of which, it seems, may have been the ship scraping the ledge) were subsequent contacts. The court’s summary was as follows. “Hanssen claims that he saw the Tamaño hit the buoy under the starboard anchor. He also claims to have heard the Tamaño hit the buoy a second time in the vicinity of the aft end of the forecastle, and a third time further aft, as the buoy scraped the Tamano’s side and hit the accommodation ladder.” To apply the word “claims” indiscriminately to these two aspects of Hanssen’s testimony minimized the reservations the witness himself made with impressive particularity. Hanssen did not testify in person at the trial, but his deposition was made part of the record. On cross-examination he admitted that he did not actually see the buoy strike the Tamano’s bow. His cross-examination further developed that he was alleged to be drunk, had numerous axes to grind, and was considered unreliable. He was also unable to explain why he had failed promptly to report to the bridge that the vessel had hit the buoy and did not mention this fact until ten minutes later when Storheil came forward to supervise the anchoring.” . A contention the court found “incredible” in view of the seven-layer chips of paint found on the buoy’s platform, the composition of which precisely matched samples taken from the ship’s bow. . “13. The court rejects the contention of the United States that the Tamaño struck Buoy No. 6 under its starboard anchor 39 feet inboard of the starboard side. The Court also rejects the contention of Tamano-Pilots that the Tamaño did not strike Buoy No. 6. While the evidence clearly supports the conclusion that the Tamaño contacted the buoy, it is most consistent with a finding that the contact was slight and that it occurred at a point much closer to the outer edge of the bow, most likely at the point where the bow begins to taper off into the flat side of the ship.” . XQ, “You don’t know what part of the buoy hit the ship; is that what you are saying?” A. “Yes, I mean that it had to be up here, [diagram] but it went so fast.” This did not detract from what Hanssen said on a number of occasions as to where was “up here.” E.g., A. “I saw that the buoy struck the vessel on the starboard side, in the vicinity of the anchor; and, after that, I ran and I stationed myself at the anchor to be ready.” While he also testified that he saw the buoy “hit the anchor,” it seems clear that he regarded this as equivalent. Q. “What part of the ship first struck the buoy?” A. “The starboard anchor, below the starboard anchor.” The difference was a matter of height above the water, not location vis-a-vis the center line of the ship. See testimony of Chief Officer Steinsvaag, corroborating Hanssen, post. . What was in the record was plaintiffs’ counsel’s accusation that he was “a drunk” — a quite different matter, and untrue at that. Hanssen had been drunk eight days previously. Captain Bjonnes said that it might have happened once, but no more than once, before. While we do not award Hanssen a temperance medal, this is a slender stick with which to beat a witness, particularly to imply, what the court seemingly inferred, that he was drunk that night when sent forward by his superior to tend the anchor. . At the expense of stating the obvious, as one on a straight course approaches, and passes by, a fixed object, the object appears to move from whatever position it was initially off the bow towards the beam, and, ultimately, off the stern. At first, if the object is far ahead, the bow angle changes slowly, but the change accelerates as one comes nearer. Thus, in the case of two buoys off the starboard bow, such as Buoy 7, relatively far ahead, and Buoy 6, much closer, the angle of Buoy 7 changes slowly, and the angle of Buoy 6 comparatively rapidly, causing the difference, or the angle between them, to “open up.” The closer to Buoy 6, the faster the opening. Conversely, to maintain an object at a constant angle off the bow would require a slow turn, or curve, which must increase as one approaches. . “[N]ot [to] have any real bad damage to the buoy . . . defies all reason.” “Captain Fertig said when it happened to him it decimated (sic) the buoy, and I have no doubt in my mind that’s what would happen.” . With some candor, counsel conceded that his chain did “not extend down the way one of the witnesses said it would have.” With greater candor he should have said that no one but himself had contradicted the witness. . “[I]f the buoy is on the starboard bow where Hanssen says he saw it, the sinker is on the port bow; that means that with the bow the way it is shaped in the profile there’s just no way that that ship is going to go forward [across the chain] and not carry the buoy and the sinker with it and cause very, very substantial damage to the buoy.” . This seeming time discrepancy was due to a difference in the reading of the bridge and the course recorder clocks. This was not the only plaguing that came from the course recorder, upon whose reliability the court commented unfavorably. . With respect to this last, Dr. Breslin did so testify, but it was not an “admission.” He had stated that the maximum force was not needed, and testified specifically that there would still be ample left to accomplish the dislodgment. Moreover, in point of fact, the ship was then on a straight course. See post. . Not that we wish to split hairs, but it was not an accurate summary to take Captain Dunbar’s figure, which was the highest of four witnesses, as “the eyewitness testimony.” . For a striking illustration of Captain Dunbar’s lack of memory of events concerning this incident, we note that when his deposition was taken he could not recall how long after he had stopped the engines so that Buoy 6 “could pass clear aft,” he stopped his right turn and steadied his course. He believed it “a couple of minutes ... a minute or two minutes,” and that he did not straighten his course until after the buoy was astern. The time and distance were manifestly shorter. . We need not discuss the elaborate track records, constructed and presented by each side. The court amply pointed out the incorrect assumptions that went into each. While plaintiffs seek to capitalize on one point on which they coincide, we are not impressed by reasoning which would put two wrongs together to make a right. . This finding was not only not clearly wrong, but we would think, clearly correct. However incompetent were COWSLIP’S officers at taking cross-bearings, we cannot believe they could unintentionally drag the sinker, a 4-ton cement block, 215 feet, or not be aware of doing so. Moreover, unlike the sudden force of being struck by the TAMANO’s wake, we cannot visualize how such dragging could have rolled the block over, leaving it upside down with three loops of chain wound around it. The thought that the COWSLIP moved the sinker, contrary to the testimony of her officers, came from counsel, only, and was warrantably rejected. . As previously noted, Buoy 6 is a gatepost at the extreme edge. . For what it is worth, we plotted this out on an enlarged scale, and agree that Buoy 7’s misposition was not significant in the present context. If we have done this correctly, the change would appear to have affected its bow bearing, as seen from where Captain Dunbar commenced his turn, by only one degree. . A. Conan Doyle, Silver Blaze, “Before deciding that question [whether there had been an intruder] I had grasped the significance of the silence of the dog, for one true inference invariably suggests others. . . . Interestingly enough, Captain Dunbar’s sole use of the word “hug” was with reference to Eastern Approach Buoy 1, which he translated as meaning 3/10’s of a mile. His concepts of distances, as demonstrated elsewhere in his testimony, seem extraordinarily elastic. So does his concept of bearings. Q. “[W]hat do you consider to be fine on the starboard bow? A. “Four degrees off the starboard bow, perhaps, . . . — it might be a point [IIV20] . . . . It’s going to vary. If it was eleven degrees, it might go to twelve. It might do down to ten, but you are trying to keep a nice even turn and keep that buoy fine on your starboard bow. That’s why I think it is fair to say ‘fine’ rather than the actual degrees.” Captain Dunbar willingly accepted the description of this being navigation “by the seat of your pants.” We are tempted to observe that at least by hindsight, there seems much to be said for the government experts who testified he should have been maintaining a radar check as well. Captain Dunbar testified, without contravention, that it was customary for the pilot to ‘hug’ Buoy 6 when entering the Hussey on an ebb tide in order to avoid grounding on Peaks Island.” . We need not determine whether the establishment of the appropriate standard of care is to be included within the ordinary rule that findings in negligence cases fall within the clear error rule, McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; 9 Wright & Miller, Federal Practice & Procedure § 2590, or is not, Mamiye Bros. v. Barber Steamship Lines, Inc., 2 Cir., 1966, 360 F.2d 774, 776, cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70; cf. Pacific Tow Boat Co. v. States Marine Corp., 9 Cir., 1960, 276 F.2d 745, 752. Even if within the clear error rule, the establishment of the standard of care is a sufficiently legal, as opposed to factual, matter that we would be more willing than ordinary to find clear error. Whichever rule applies, we cannot accept the district court’s exoneration. . We cannot, by any possibility, share the district court’s feeling that, with a channel that wide, to come within 22 feet of a crippling ledge is to “pass well to the west and clear.” For a ship of this size, that would seem hairbreadth measurement. Moreover, 22 feet clearance on this occasion might not be 22 feet on another. The court’s finding was based on Wright’s estimate of where the buoy would have been two hours before low water with the sinker at its charted position, and travel of the buoy along the surface from the sinker of about 95 feet. This assumption was based on observations of the buoy when the sinker was in 120 feet of water, and thus did not take into account the greater travel there would be when the sinker was in its charted position of only 73 feet of water. Moreover, it was based on observations at a time when the chain was wrapped around the sinker three times; obviously, if the full 240 feet of chain were free, the buoy’s travel along the surface could be much greater. Captain Dunbar had no idea of the buoy’s circle of travel. In his pretrial deposition he estimated a 50 foot radius. At trial he said 75 feet maximum. Obviously it was more. The Pilots’ failure to make inquiry of the Coast Guard of the chain’s length until after the casualty seems a sad commentary. It was the Pilots’ duty to have, at their fingertips, all information of any pertinency to their procedure. Essex County Elec. Co. v. M/V Godafoss, D.Mass., 1955, 129 F.Supp. 657. The alternatives are that Captain Dunbar was inexcusably uninformed, or this information was not considered relevant because no one intended ever to be close enough to the buoy to make it so. The captain is on one horn of a dilemma, or the other. . Although in his declaration five days after the event Captain Bjonnes stated they were passing two fathoms from the buoy and that he considered it “too close,” in his later deposition, introduced at the trial, his “best estimate” was “Two, three, four fathoms.” “18 or 24 feet, about. I considered it a safe distance.” Since still at deposition time he admitted he had been afraid “about getting hung up in the mooring of the buoy,” one may suspect that the volunteered opinion that he “considered it safe” may have been a re-consideration based on a later appreciation of the damaging effect of the declaration. In any event, even it was short of a ringing endorsement. . “There wasn’t one of those four witnesses that could find anything wrong with Captain Dunbar’s navigation.” . We may add our own observation, that turning too soon would seem a false issue. Starting too soon must mean too soon with relation to the buoy’s position off the bow. This is not what Captain Dunbar did. On the contrary, it was because the angle had already, though unexpectedly, opened up to the point of dictating the turn that he took it, not too soon, but “seconds after I thought I should have.” . If Afran Transport Co. v. United States, 2 Cir., 1970, 435 F.2d 213, cert. denied, 404 U.S. 872, 92 S.Ct. 72, 30 L.Ed.2d 116, is to be read to the contrary, we do not agree with it. However, Afran is notable in that the plaintiff in that instance offered extensive testimony why the misplacement of the buoy there involved was not easily verifiable by a pilot. . Realizing the import of this concession a bit late, Captain Dunbar sought to back away by saying, “During the day, there are certain advantages to seeing. Your distance perception obviously is better, but during the day often other things interfere with it, so it is give or take whether night navigation is better than day navigation.” One may question, however, the extent he would have admitted to the Board of Examiners that objects observed during the daytime interfered with his navigation. . Section 1321(f)(1) reads in relevant part, “Except where an owner or operator can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses, such owner or operator of any vessel from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section shall, notwithstanding any other provision of law, be liable to the United States Government for the actual costs incurred . . . . Such costs shall constitute a maritime lien on such vessel which may be recovered in an action in rem in the district court of the United States for any district within which any vessel may be found. The United States may also bring an action against the owner or operator of such vessel in any court of competent jurisdiction to recover such costs.”

United States v. Rohm & Haas Co.

RONEY, Circuit Judge: This is a continuous discharge pollution case filed by the Government under the 1899 Refuse Act against Rohm and Haas Company, which has a large chemical manufacturing plant with a single outfall through which its treated waste water goes into the Houston Ship Channel. The District Court entered an in-junctive order which set certain limitations upon the discharge by the Company of various pollutants, such as ammonia, chemical oxygen demand, cyanide, chromium, nickel, oil and grease, into the Houston Ship Channel, and totally enjoined the barging of such wastes to sea. 353 F.Supp. 993 (S.D.Tex.1973). The injunction has been stayed pending this appeal which raises difficult issues as to the relationship between the old Refuse Act and the new Water Pollution Control Act. On appeal the Company argues (1) that the Federal Water Pollution Control Act Amendments of 1972 prevent prosecution of this Refuse Act suit; (2) that the doctrine of primary jurisdiction should be applied and this case remanded to the Environmental Protection Agency for the initial determination of effluent limitations; (3) that the Refuse Act does not confer jurisdiction over waste disposal on the high seas; (4) that the District Court’s order is deficient under Federal Rules of Civil Procedure 52(a) and 65(d); and (5) that even if the Federal Water Pollution Control Act Amendments do not bar this action, they provide the proper legal standard to be applied in establishing effluent limitations for the Company’s plant. Except for modifying the injunction so that it will not override subsequent agency action under the new Act, and striking that portion of the injunction that applies to barging wastes to sea, which we find outside the scope of the Refuse Act, we affirm the action of the District Court. We discuss the arguments of appellant seriatim. I. Rohm and Haas argues that it cannot be in violation of the Refuse Act, 33 U.S.C.A. § 407, because it has applied for a permit to discharge wastes into the Houston Ship Channel, and section 402(k) of the Federal Water Pollution Control Act Amendments, 33 U.S.C.A. § 1342(k) (Supp.1974), specifically provides that “in any case where a permit for discharge has been applied for,” there can be no violation of the Refuse Act until December 31, 1974. It contends that on this basis the suit should have been dismissed. A savings clause, however, provides that the amendments, enacted after this suit was filed, but before it was tried, shall not cause abatement of any suit commenced prior to the enactment of the law. The issue for determination is whether the scope of the savings clause includes this kind of suit. The savings provision provides: No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act shall abate by reason of the taking effect of the amendment made by this Act. 86 Stat. 896, note to 33 U.S.C.A. § 1251 (Supp.1974). The savings clause thus preserves two classes of pending actions brought by or against the Administrator or any other officer or employee of the United States: (1) those actions brought by or against them in their official capacities; and (2) those actions brought by or against them in relation to the discharge of their duties under the old FWPCA. Refuse Act cases fall into the first class. Such a reading of the savings clause is consistent with the rule that savings clauses are to be broadly construed. See De La Rama S.S. Co. v. United States, 344 U.S. 386, 389-390, 73 S.Ct. 381, 97 L.Ed. 422 (1953); NLRB v. National Garment Co., 166 F.2d 233, 237 (8th Cir. 1948); Quirk v. United States, 161 F.2d 138, 143 (8th Cir. 1947). The correctness of the above interpretation of the savings clause is supported by the relevant legislative history. In the course of the debates prior to passage of the 1972 Amendments, several members of Congress expressed concern that section 402(k) might be construed to terminate pending Refuse Act litigation. They were assured by the bill’s managers that section 4(a) was intended to and would save all Refuse Act suits then pending in the courts. Rohm and Haas contends that these statements should be disregarded as attempts by certain legislators to subvert the democratic process of legislation by fabricating a legislative history after failing to obtain statutory language consonant with their wishes. The Company points out that every time the savings provision was quoted to demonstrate its applicability to Refuse Act suits, the words “or in relation to the discharge of his official duties under the Federal Water Pollution Control Act” were deleted. The Company also points out that section 4(a) originated in H.R. 11896, the House version of the bill, and passed both houses after adoption by the House and Senate Conferees without change in language. Rohm and Haas urges that the intent of the House Committee on Public Works, which drafted the savings provision originally, should have special significance in the legislative history. The report accompanying H.R. 11896 by that Committee limited the savings clause to “actions commenced by or against the Administrator in the carrying out of his responsibilities under the Federal Water Pollution Control Act.” H.R.Rep.No.92-911, 92d Cong., 2d Sess. 141 (1972). The intent of the original authors is not controlling. We must search for congressional intent at the time of passage. Although the words of the savings clause did not change after conception, their meaning apparently did as the bill moved through the legislative process. The House Committee’s narrow reading of the provision, restricting it to FWPCA actions, was abandoned by the Conference Committee. “Section 4 of the House amendment provides that pending suits, actions, and other proceedings are not to abate by reason of the amendments made by this Act.” Conf.Rep.No.92-1236, 92d Cong., 2d Sess. (1972), 1972 U.S.Code Cong. & Admin.News, p. 3829. The bill’s managers quoted only so much of the provision as was relevant to whether the savings clause applied to Refuse Act suits. The language omitted, referring to FWPCA duties, was unnecessary to the resolution of the question posed. In any event, no member of the Conference Committee took the floor to dispute the managers’ interpretation of the Committee’s intent. Finally, it is significant that the Senate Committee on Public Works reported that only one FWPCA enforcement case had reached the courts in the more than twenty years since that Act was passed in 1948. S.Rep. 92-414, 92d Cong., 1st Sess. (1971), 1972 U.S.Code Cong. & Admin.News, p. 3672. It is unlikely that legislators, aware of the nonexistence of FWPCA actions, would have concerned themselves about saving those actions and inconsistently have permitted abatement of numerous cases under the Refuse Act. Other federal courts have held that the 1972 Amendments had no effect upon pending litigation under the Refuse Act. United States v. Ira S. Bushey & Sons, 363 F.Supp. 110 (D.Ct.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); see United States v. Kennebec Log Driving Co., 356 F.Supp. 344 (D.Me.), vacated and remanded on the merits, 491 F.2d 562 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Rohm and Haas, reading the savings provision narrowly, would limit it to actions brought by “the Administrator or other officer or employee of the United States.” The Company perceives this suit as outside the savings clause because it was brought by the United States. The short answer to this contention is that the suit was authorized by the Assistant Attorney General, Lands and Natural Resources Division, and the United States Attorney for the Southern District of Texas, upon the recommendation of the Administrator of the Environmental Protection Agency. The complaint was signed by the Chief Assistant United States Attorney for the Southern District. Each of the above officials is an “officer or employee of the United States.” Responsibility to enforce the Refuse Act lies with the Department of Justice and the United States attorneys. 33 U.S.C.A. § 413; see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-88 (2d Cir. 1972). Under these circumstances, this suit brought in the name of the United States is within the ambit of the savings clause. Cf. United States v. Burns, 54 F. 351, 355 (C.C.D.W.Va.1893); United States v. Interlake Steel Corp., 297 F.Supp. 912, 914 (N.D.Ill.1969). II. Rohm and Haas asserts that the plaintiff should first seek relief from an expert administrative body, the Environmental Protection Agency (EPA), before being allowed to proceed against Rohm and Haas in a judicial proceeding. It would have the Court apply the so-called doctrine of primary jurisdiction: that in cases raising issues of fact not within the conventional experiences of judges, or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should first determine some aspects of the proceeding. United States v. Western Pacific R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). See generally K. Davis, Administrative Law Treatise §§ 19.01-.09 (1958, Supp.1970). This argument fails for several reasons. First, the question in this case is not what standard of discharge EPA may eventually permit, but rather what quantities of industrial wastes, if any, an equity court should permit a Refuse Act violator to discharge pending final EPA action on the Company’s application for a permit. Cf. United States v. Joseph G. Moretti, Inc., 478 F.2d 418 (5th Cir. 1973). Second, the scientific, technical, and complex factual issues in the case bear on the kind of applicable relief that should be granted, rather than on whether the defendant is in violation of the Act. Discharges in violation of the Refuse Act may be completely halted by injunction and no reason appears why lesser steps may not be taken. See United States v. Crow, Pope & Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); United States v. Kennebec Log Driving Co., 491 F.2d 562, 565 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972); United States v. Ira S. Bushey & Sons, 363 F.Supp. 110 (D.Vt.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. Lindsay, 357 F.Supp. 784 (E.D.N.Y.1973); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); Natural Resources Defense Council v. Grant, 355 F.Supp. 280 (E.D.N.C.1973); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); United States v. Kentland-Elkhorn Coal Corp., 353 F.Supp. 451 (E.D.Ky.1973); United States v. Asbury Park, 340 F.Supp. 555 (D.N.J.1972); United States v. Armco Steel Corp., 333 F.Supp. 1073 (S.D.Tex.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, Inc., 329 F.Supp. 339 (E.D.Tenn. 1971)United States v. Florida Power & Light Co., 311 F.Supp. 1391 (S.D.Fla.1970); Cf. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The moulding of equitable relief, even in highly technical matters, is the proper concern of the courts. Third, we agree with the United States that the data involved here is not inherently more complex than evidence routinely considered in antitrust suits, patent actions, and rate-setting adjudications. Fourth, the agency to which Rohm and Haas would have us turn was very much a part of this litigation. EPA’s experts were consulted and testified in detail and at length throughout this proceeding. The trial court was advised of EPA’s position on the relevant issues. Fifth, even under the 1972 Amendments the enforcement provision, FWPCAA § 309, 33 U.S.C.A. § 1319 (Supp.1974), states that the Administrator may bring a civil or criminal action in District Court to enforce the provisions of the Act. Absent from this provision is any indication that violations of the Refuse Act or the FWPCA must be considered in administrative proceedings prior to initiation of judicial action. Because the issue is what an equity court should do pending EPA action, however, the District Court’s order must be modified so as not to govern the Company’s conduct after a permit has been issued. A polluter discharging wastes in accordance with the terms and conditions of an NPDES permit is not in violation of the Refuse Act. See FWPCAA § 402(a)(4), 33 U.S.C.A. § 1342(a)(4) (Supp.1974). The decree should be effective only as long as Rohm and Haas remains in violation of the Act. In contrast to the regulations implementing the earlier U.S. Army Corps of Engineers Refuse Act Permit Program, the EPA rules governing the National Pollution Discharge Elimination System do not require that the permit include limitations embodied in the resolution of a civil action under the Refuse Act. Compare 33 C.F.R. § 209.131(d) (4) (1973) with 40 C.F.R. §§ 125.11, 21 — .24, .42 (1973). We therefore remand to the District Court for appropriate modification consistent with this decision. III. Rohm and Haas seeks a reversal of the District Court’s injunction from further barging to sea of waste materials, which is contained in the following three lines of the Court order: Barging to Sea of Untreated Waste and Mother Liquors: None after the date of this judgment. Rohm and Haas has been disposing of ammonium sulfate mother liquor, a waste material, in the Gulf of Mexico approximately 100 to 125 miles from the coast of Texas since January 1969. The Government twice tried to bring the bargaining issue directly into the case by amending its complaint, but the District Court denied both motions to amend, once before trial and once after trial. Nevertheless, the District Court enjoined Rohm and Haas from further deep sea barging without any comment as to the reason or legal basis for the ruling. In fact, there are no findings of fact or conclusions of law on the barging issue which are required under Federal Rule of Civil Procedure 52(a). Accordingly, the order as to deep sea barging must be vacated in view of the District Court’s failure to comply with Rule 52(a). Lettsome v. United States, 434 F.2d 907 (5th Cir. 1970); Acme Boat Rentals, Inc. v. J. Ray McDermott & Co., 407 F.2d 1324 (5th Cir. 1969); Mladinich v. United States, 371 F.2d 940 (5th Cir. 1967). The Refuse Act under which this suit was brought applies only to discharges of refuse matter “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” 33 U.S.C.A. § 407. Until shortly before the passage of the FWPCAA, the U. S. Army Corps of Engineers, charged with administering the Refuse Act, apparently took the position that ocean waters were not covered at all by that Act. See 33 C.F.R. § 209.260 (1971). In September 1972, the Corps broadened its interpretation, but only to include ocean waters within the three mile territorial limit. The navigable waters of the United States over which Corps of Engineers regulatory jurisdiction extends include all ocean and coastal waters within a zone 3 geographic (nautical) miles seaward from the coast line. Wider zones are recognized for special regulatory powers, such as those exercised over the Outer Continental Shelf. 33 C.F.R. § 209.260(k)(1) (1973). The Government concedes the Refuse Act by its terms does not touch upon the barging of waste material to sea. There are no findings of fact which would support the District Court’s order under any other theory, such as some kind of federal common law of nuisance or water pollution, the necessary implementation of an effective decree under the Refuse Act, or the interstitial use of equitable power to protect the environment which is asserted by the Government on authority of Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and United States v. Ira S. Bushey & Sons, 346 F.Supp. 145 (D.Vt. 1972). The Government argues that we could support the limitation imposed on Rohm and Haas with respect to deep sea barging under the Marine Protection, Research, and Sanctuaries Act of 1972, which became law on October 23, 1972. Pub.L. No. 92-532, 33 U.S.C.A. § 1401 et seq. (Supp.1974), as amended, (Supp. June 1974). This legislation regulates the transportation of material for dumping into ocean waters. Section 102, 33 U.S.C.A. § 1412 (Supps. 1974 & June 1974), the Environmental Protection Agency Administrator is authorized to issue permits under certain conditions. The following factors are to be considered: the need for the proposed dumping; its effect on human health and welfare, including economic, esthetic, and recreational values; its effect on fisheries resources, plankton, fish, shellfish, wildlife, shore lines, and beaches; its effect on marine ecosystems; the persistence and permanence of the effects of the dumping; the effect of dumping particular volumes and concentrations of materials; alternate locations and methods of disposal or recycling; and the proposed dumping’s effect on alternate uses of oceans. This argument was not treated by the trial court and we will not consider it here. We will remand the case for such consideration as the District Court deems appropriate. In view of the complex and technical nature of the factors to be evaluated as set forth in section "102, the District Court may well want to consider whether the decision as to ocean dumping should be left initially to the Environmental Protection Agency under the doctrine of primary jurisdiction. In any event, we vacate that portion of the injunction prohibiting barging to sea and remand for such further proceedings as the District Court may deem appropriate in the light of our decision. IV. Rohm and Haas also argues that the District Court’s order, insofar as it establishes limitations on discharges into the Houston Ship Channel, does not comply with Federal Rules of Civil Procedure 52(a) and 65(d). In cases tried without a jury, Rule 52(a) mandates findings of fact and conclusions of law sufficiently detailed and exact to indicate the factual basis for the District Court’s ultimate conclusion. Lettsome v. United States, 434 F.2d 907 (5th Cir. 1970); Acme Boat Rentals, Inc. v. J. Ray McDermott & Co., 407 F.2d 1324 (5th Cir. 1969). Although the rule refers only to the granting or refusing of interlocutory injunctions, the language “all actions tried upon the facts without a jury” encompasses suits in which permanent injunctions are issued. Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967); Chas. Pfizer & Co. v. Zenith Laboratories, Inc., 339 F.2d 429 (3d Cir. 1964); see Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir. 1969). Rohm and Haas contends that the individual effluent limitations established by the Court are not supported by findings. This is a Refuse Act suit. The findings of fact requisite for relief are that the Company discharged refuse matter into a navigable water of the United States. These findings the District Court made. They lead to the legal conclusion that the Company violated the Refuse Act. Rule 52(a) is thus satisfied. Rule 65(d) prescribes the form and scope of injunctions. The limits established by the Court are unquestionably specific. No discharges are permitted in excess of given amounts of the various pollutants, expressed in terms of pounds per day. The question is whether the District Court adequately stated reasons for the injunction, as is also required by the rule. It is apparent from the Court’s references to the harmfulness of the pollutants and to the continuous nature of the discharges that an injunction is necessary to prevent further harm. It has been held that a finding of threatened irreparable injury satisfies the reasons requirement of Rule 65(d). Pennsylvania R.R. v. Transport Workers Union, 278 F.2d 693 (3d Cir. 1960); Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190 (9th Cir. 1953); Smotherman v. United States, 186 F.2d 676 (10th Cir. 1950); In re Rumsey Mfg. Corp., 9 F.R.D. 93 (W.D.N.Y.), rev’d on other grounds sub. nom. McAvoy v. United States, 178 F.2d 353 (2d Cir. 1949). V. Rohm and Haas argues in the alternative that the District Court’s injunction, if considered procedurally adequate, must be set aside because the Court failed to apply the proper legal standards which it contends should be those established by the FWPCAA to govern the issuance of NPDES permits. Although the savings clause does not prohibit the Amendments from affecting pending actions, it does not require application of the FWPCAA standards to pending Refuse Act suits. Rohm and Haas argues, however, that if the FWPCAA standards are not applied in establishing effluent limitations it will be denied equal protection of the laws, “or perhaps more accurately an equal right to violate the law.” United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 431 n. 47 (5th Cir. 1973). The Company points out that essentially all other polluters, including its neighbors on the Houston Ship Channel, will have their effluent limitations determined under the amended FWPCA while it will not. The number of cases prosecuted by the Justice Department under the Refuse Act negates any contention that discrimination in the form of a vendetta is being practiced against Rohm and Haas alone. The difference between the standards applied to defendants in Refuse Act suits brought before the enactment of FWPCAA and that applied to other polluters is the result of the savings clause. Whenever legislation changes a legal standard but saves pending actions, there is apt to be differing treatment of those otherwise similarly situated. The difference in treatment does not rise to the constitutional level of a denial of equal protection. In any event, the effect of the District Court’s decree will not survive the issuance of a permit, which will depend upon the application of FWPCAA standards to Rohm and Haas equally with all other applicants. Conclusion The Court’s injunction is affirmed as to the discharge into the Houston Ship Channel but remanded for modification to limit the duration of the injunction to that period prior to the proper issuance of a permit, and is vacated and remanded insofar as it enjoins the barging of waste material to sea. Affirmed in part, vacated in part, and remanded. . Although the Refuse Act is explicitly preserved by section 511(a)(2)(B) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.A. § 1371(a) (2) (B) (Supp.1974), its role is significantly diminished in the new regulatory structure. Section 402 of the amended FWPCA, 33 U.S.C. A. § 1342 (Supp.1974), establishes the National Pollutant Discharge Elimination System (NPDES) of permits, which replaces the Refuse Act Permit Program established pursuant to Executive Order No. 11574, 3 C.F.R. 292 (1974). No Refuse Act permits are to be issued after the enactment of tlie Amendments on October 18, 1972. FWPCAA § 402(a)(5). Instead, NPDES permits are deemed to be permits issued under the Refuse Act. Id. § 402(a)(4). Refuse Act permit applications pending when FWPOAA became law were converted into NPDES permit applications by subsection 402(a)(5). Where an NPDES permit has been applied for but no final administrative disposition has been made, subsection 402 (k) provides that, until December 31, 1974, the discharge in question shall not be a violation of either the amended FWPCA or the Refuse Act (unless the applicant’s failure to provide requested information has caused the administrative delay). In this respect Congress departed from the pattern of the Refuse Act Permit Program. Under the RAPP regulations, the pendency of a permit application would not prevent a Refuse Act suit. 33 C.F.R. § 209.131(d) (4) (1973). . Senator Muslcie supplemented his opening remarks with a written statement which dealt inter alia, with the effect of the savings provision. The Conferees also agreed that there should be no enforcement action taken for failure to have a permit until December 31, 1974, in order to provide an adequate opportunity for the Administrator to review and issue or not issue permits for the applications that are pending on date of enactment or will be pending as a result of expansion of the program. Concern has been expressed that the “immunity” provision will cause dismissal of pending enforcement actions under the Refuse Act of 1899. Section 4 provides the following relevant words pertaining to the Refuse Act: “No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity . . . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.” Without any question it was the intent of the Conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other Acts of Congress. 118 Cong.Rec.S. 16875 (daily ed. Oct. 4, 1972). Senator Griffin raised the point during the debate. MR. GRIFFIN. Mr. President, I take this time for the purpose of establishing a legislative history. After reviewing the conference report on S. 2770, I became deeply concerned that one provision in the conference agreement might adversely affect a number of pending lawsuits brought under the Refuse Act of 1899. One such suit is now pending against the Reserve Mining Co. of Silver Bay, Minn., a company which has been dumping 67,000 tons of pollutants daily into Lake Superi- or. The provision I refer to is section 402 (k) I am also aware of section 4 of the bill, a provision to preserve pending Federal suits. However, when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against polluters violating the Refuse Act of 1899. If section 402 (k) were read as having retroactive effect, then about 170 Federal suits filed against polluters prior to the date of enactment of tire bill, including the Reserve case, could be dismissed. During the last 2 years there have been some 300 criminal convictions under section 13 of the Refuse Act and over 120 civil actions most of which resulted in the defendants either stopping the dumping or agreeing to institute pollution control programs. On the other hand, it is my understanding there have been only a handful of prosecutions for violation of water quality standards since the Federal Water Pollution Control Act was enacted. In view of this — a fact recognized by the conferees — it is inconceivable that the Senate would want to emasculate the best available enforcement, device now available —the Refuse Act — and legislatively dismiss suits pending under it. Accordingly, Mr. President, it is essential that any possible ambiguity be cleared up so that the legislative history will leave no doubt about the intent of the conferees and the Members of this body. MR. GRIFFIN. I wonder if I might address my question to the distinguished manager of the bill on this point. MR. MUSKIE. Yes, indeed. I appreciate having this point raised by the Senator from Michigan. I wish to put my answer in this form. Section 4(a) of the conference report is an identical provision to that which appeared in the House bill. Section 402(k) of the conference report is similar, although not identical, to section 402(1) of the House bill. No question has even been raised up to this point as to the relationship of these two sections. The gentleman’s question is the first indication that anyone has ever considered that there was an ambiguity in the two provisions. Section 4 provides and I quote the relevant words pertaining to the Refuse Act: “No suit, action, or other proceeding lawfully commenced by or against the Administrator of any other officer or employee of the United States in his official capacity .. . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.” Without any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress. I hope and trust that nothing said on this floor or elsewhere would lead anyone to believe that section 4 is anything but totally clear as to its meaning and intent. MR. GRIFFIN. I thank the manager of the bill. Certainly that does clarify the meaning as to the intent of the conferees, and it would clearly indicate that the suit now pending against the Reserve Mining Co. under the Refuse Act would not be affected by this bill. MR. MUSKIE. That is my belief. Id. at S 16882-83. Senator Hart subsequently stated his reliance on Senator Muskie’s explanation. MH. HART..... Alarm has been voiced that efforts to prevent environmental damage to Lake Superior involving the discharge of taconite tailings by Reserve Mining Co., will be hindered by this legislation. It is my understanding, however, after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 will in no way be affected nor will any of the other counts under the existing Federal Water Pollution Control Act or other law. Id. at S 16890. The House of Representatives also considered the relationship between sections 402 (k) and 4(a). The following colloquy presented and resolved the potential ambiguity. MR. DINGELL. Mr. Speaker, I rise in support of this conference report, although I have some misgivings concerning certain features of the report, as I will note in more detail. At this point, I would like to direct a question to the chairman of the committee with regard to section 402 (k) of the bill and section 4(a) of the bill. It is my understanding that section 402 (k) of the bill would grant to any discharger of waste into our Nation’s water total immunity from prosecution under the Federal Water Pollution Control Act and under the Refuse Act until the end of 1974. Of course, to obtain this immunity, the polluter would have to file an application for permit, and that application must still be pending. I am deeply concerned what effect this provision will have on pending law suits and other administrative actions which EPA lias initiated over the past 2 years. In particular, I am concerned about the effect of this provision on the Reserve Mining case. The gentleman knows that I have corresponded with him on this issue in the last few days in the full belief that the gentleman and other members of the conference never intended to halt these cases until the end of 1974. I would, therefore, appreciate it if the gentleman would relieve my mind and those of many citizens of this Nation and the Great Lakes by assuring me that it is the intention of the House conferees that the immunity granted under section 402 (k) is applicable solely to dischargers who are not on the date of enactment of this bill being prosecuted by the Government, either civilly, criminally, or administratively, under this law or under the Refuse Act. I understand this to be the case because of the language of section 4(a) of the bill entitled “Savings Provision,” and because the bill, in fact, does not repeal the Refuse Act of 1899. Does the gentleman concur with my statement? MR. WRIGHT. Mr. Speaker, section 4(a) of the conference report is an identical provision to that which appeared in the House bill. Section 402 (k) of the conference report is similar although not identical, to section 402(1) of the House bill. No question lias ever been raised up to this point as to the relationship of these two sections. The gentleman’s question is the first indication that anyone has ever considered that there was an ambiguity in the two provisions. Section 4 provides and I quote the relevant words pertaining to the Refuse Act: “No suit, action, or other, proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity .. . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.” Without any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress. I hope and trust that nothing said on this floor or elsewhere would lead anyone to believe that section 4 is anything but totally clear as to its meaning and intent. Id. at H 9123-24 (daily ed. October 4, 1972). . It is noteworthy that Senators Griffin and Hart and Representative Dingell were concerned about the effect of the savings clause on United States v. Reserve Mining Co., 56 F.R.D. 408 (I).Minn.1972), a civil action brought in part under the Refuse Act in the name of the United States. See note 2, supra. Ultimately, Reserve Mining’s discharges were enjoined without deciding the Refuse Act question. United States v. Reserve Mining Co., 380 F.Supp. 11, at 58 (D.Minn.1974), conditionally stayed pending appeal, 498 F.2d 1073 (8th Cir. 1974).

United States v. Pennsylvania Industrial Chemical Corp.

Mr. Justice Brennan delivered the opinion of the Court. We review here the reversal by the Court of Appeals for the Third Circuit of respondent's conviction for violation of § 13 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U. S. C. § 407. Two questions are presented. The first is whether the Government may prosecute an alleged polluter under § 13 in the absence of the promulgation of a formal regulatory-permit program by the Secretary of the Army. The second is whether, if the prosecution is maintainable despite the nonexistence of a formal regulatory-permit program, this respondent was entitled to assert as a defense its alleged reliance on the Army Corps of Engineers’ longstanding administrative construction of § 13 as limited to water deposits that impede or obstruct navigation. On April 6, 1971, the United States filed a criminal information against the respondent, Pennsylvania Industrial Chemical Corp. (PICCO), alleging that on four separate occasions in August 1970 the corporation had discharged industrial refuse matters into the Monongahela River in violation of § 13 of the 1899 Act. By its terms, § 13 prohibits the discharge or deposit into navigable waters of “any refuse matter of any kind of description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.” The second proviso to § 13 provides, however, that “the Secretary of the Army . . . may permit the deposit” of refuse matter deemed by the Army Corps of Engineers not to be injurious to navigation, “provided application is made to [the Secretary] prior to depositing such material . ...” At trial, it was stipulated that PICCO operated a manufacturing plant on the bank of the Monongahela River, that PICCO-owned concrete and iron pipes discharged the refuse matter into the river, and that PICCO had not obtained a permit from the Secretary of the Army prior to the discharges in question. PICCO argued, however, that the discharges did not violate § 13 because (1) the liquid solution flowing from its pipes was “sewage” exempt from the statutory proscription; (2) the discharge did not constitute “refuse matter” within the meaning of § 13 because it was not matter that would “impede navigation”; and (3) the term “refuse” as used in § 13 must be defined in light of the water quality standards established pursuant to the Water Pollution Control Act of 1948 and its amendments. In addition, PICCO sought to introduce evidence to show that its failure to obtain a § 13 permit was excusable in this instance because prior to December 1970 the Army Corps of Engineers had not established a formal program for issuing permits under § 13 and, moreover, because the Corps consistently construed § 13 as limited to those deposits that would impede or obstruct navigation, thereby affirmatively misleading PICCO into believing that a § 13 permit was not required as a condition to discharges of matter involved in this case. The District Court rejected each of PICCO’s arguments as to the scope and meaning of § 13, disallowed PICCO’s offers of proof on the ground that they were not relevant to the issue of guilt under § 13, and instructed the jury accordingly. PICCO was convicted on all four counts and assessed the maximum fine of $2,500 on each count. 329 F. Supp. 1118 (WD Pa. 1971). On appeal, the Court of Appeals for the Third Circuit affirmed the District Court’s holdings as to the application of § 13 to the matter discharged by PICCO into the river, but rejected the District Court’s conclusion that the § 13 prohibition was operative in the absence of formalized permit procedures. 461 F. 2d 468 (CA3 1972). The Court of Appeals reasoned that this interpretation was tantamount to reading § 13 to be an absolute prohibition against the deposit of any “foreign substance” into the navigable waters of the country and this would have had such a “drastic impact ... on the nation’s economy even in 1899,” id., at 473, that this interpretation could not reasonably be imputed to Congress. Instead, the Court of Appeals concluded that Congress intended to condition enforcement of § 13 on the creation and operation of an administrative permit program. The Court of Appeals stated: “Congress contemplated a regulatory program pursuant to which persons in PICCO’s position would be able to discharge industrial refuse at the discretion of the Secretary of the Army. It intended criminal penalties for those who failed to comply with this regulatory program. Congress did not, however, intend criminal penalties for people who failed to comply with a non-existent regulatory program.” Id., at 475. The Court of Appeals seems to have found support for this interpretation of § 13 in “Congress’ subsequent enactments in the water quality field.” Id., at 473. The court stated that “[t]here would appear to be something fundamentally inconsistent between the program of developing and enforcing water quality standards under the Water Quality Act and section 407 of the Rivers and Harbors Act [§ 13], if the effect of the latter is to prohibit all discharges of industrial waste into navigable waters.” Ibid. As it viewed the matter, “[w]hat makes the two statutes compatible is the permit program contemplated by Section 13.” Ibid. Accordingly, the Court of Appeals held that it was error for the District Court to have refused PICCO the opportunity to prove the nonexistence of a formal permit program at the time of the alleged offenses. As an alternative ground for reversal, a majority of the Court of Appeals held that the District Court erred in disallowing PICCO’s offer of proof that it had been affirmatively misled by the Corps of Engineers into believing that it was not necessary to obtain a § 13 permit for the discharge of industrial effluents such as those involved in this case. If such facts were true, the Court of Appeals stated, it would be fundamentally unfair to allow PICCO’s conviction to stand. Thus, the Court of Appeals set aside PICCO’s conviction and remanded the case to the District Court to give PICCO an opportunity to present the proffered proofs th^t had been disallowed by the District Court. We granted the Government’s petition for certiorari. 409 U. S. 1074 (1972). We agree with the -Court of Appeals that the District Court’s judgment of conviction must be reversed, but we cannot agree with the Court of Appeals’ interpretation of § 13 as foreclosing prosecution in the absence of the existence of a formal regulatory-permit program. I Section 13 creates two separate offenses: the discharge or deposit of “any refuse matter” into navigable waters (with the streets-and-sewers exception); and the deposit of “material of any kind” on the bank of any navigable waterway or tributary where it might be washed into the water and thereby impede or obstruct navigation. La Merced, 84 F. 2d 444, 445 (CA9 1936); United States v. Consolidation Coal Co., 354 F. Supp. 173, 175 (ND W. Va. 1973). The second proviso to § 13 authorizes the Secretary of the Army to exempt certain water deposits from the prohibitions of § 13, “provided application is made to him prior to depositing such material.” In exercising that authority, the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary — i. e., it provides that the Secretary “may permit” the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions, any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits. Thus, while nothing in § 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering § 13 operative. United States v. Granite State Pack ing Co., 470 F. 2d 303, 304 (CA1 1972). In contrast, other provisions of the Rivers and Harbors Act of 1899, do include a requirement for regulations. Consequently, we disagree with the Court of Appeals that § 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory-permit program. Similarly, there is nothing in the legislative history of § 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify pre-existing statutes designed to protect and preserve our Nation’s navigable waterways. United States v. Standard Oil Co., 384 U. S. 224, 226 (1966). The history of the 1899 Act begins with this Court’s decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the Rivers and Harbors Act of 1890, provided in part: “That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation, or to deposit or place or cause, suffer, or procure to be deposited or placed, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, or other waste in any place or situation on the bank of any navigable waters where the same shall be hable to be washed into such navigable waters, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend or be construed to extend . . . to prevent the depositing of any substance above mentioned under a permit from the Secretary of War, which he is hereby authorized to grant, in any place designated by him where navigation will not be obstructed thereby.” 26 Stat. 453. Four years later, Congress enacted the Rivers and Harbors Act of 1894. Section 6 of that Act provided in part: “That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress, elsewhere than within the limits defined and permitted by the Secretary of War; neither shall it be lawful for any person or persons to move, destroy, or injure in any manner whatever any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, in whole or in part, for the preservation and improvement of any of its navigable waters, or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks . . . 28 Stat. 363. In 1896, Congress commissioned the Secretary of War to compile the various acts protecting navigable waters and “to submit the same to Congress . . . together with such recommendation as to revision, emendation, or enlargement of the said laws as, in his judgment, will be advantageous to the public interest.” The Secretary, in turn, delegated the task to the Chief of Engineers, and in February 1897, the Chief of Engineers delivered a draft proposal to the Secretary together with a cover letter that read in part: “I have the honor to submit herewith (1) a compilation [of the various existing laws protecting navigable waters] and (2) a draft of an act embodying such revision and enlargement of the aforesaid laws as the experience of this office has shown to be advantageous to the public interest.” In his compilation, the Chief of Engineers combined the essentials of § 6 of the 1890 Act and of § 6 of the 1894 Act to form the present § 13 of the Rivers and Harbors Act of 1899. Congress enacted the compilation with virtually no debate that contains mention of the intended operative scope of § 13. It seems quite clear, however, that § 13 was intended to have no wider or narrower a scope than that of its two predecessor statutes. United States v. Standard Oil Co., 384 U. S., at 227-228. It is true, of course, that the Chief of Engineers was authorized to recommend a “revision” or “enlargement” of the existing laws and that his cover letter accompanying the compilation referred to “a draft of an act embodying such revision and enlargement of the aforesaid laws.” But the revision and enlargement were limited to “the existing law relating to the removal of wrecks,” and even on that subject the changes were minor. Indeed, Senator Frye, the Chairman of the Senate Rivers and Harbors Committee, stated in response to a question whether any great change was made in the existing law by the compilation: “Oh, no. There are not ten words changed in the entire thirteen sections. It is a compilation . . . [with] [v]ery slight changes to remove ambiguities.” Thus, the Court of Appeals’ interpretation of § 13 has no support in the predecessor statutes of § 13. Plainly, neither of the predecessor statutes contemplated that application of their operative provisions would turn on the existence of a formal regulatory program. On the contrary, § 6 of the 1890 Act provided only that its absolute ban on the discharge of enumerated substances could not be construed “to prevent” the Secretary of War from granting, in his discretion, a permit to deposit such material into navigable waters. And § 6 of the 1894 Act contained no direct permit authorization whatsoever. We turn, then, to the Court of Appeals’ assertion that its conclusion is supported by later congressional enactments in the water quality field. In this regard, the Court of Appeals placed primary reliance on the 1965 and 1970 amendments to the Water Pollution Control Act of 1948 — the Water Quality Act of 1965, 79 Stat. 903, and the Water Quality Improvement Act of 1970, 84 Stat. 91: The Court of Appeals concluded that since the 1965 and 1970 Acts contemplated that discharges must meet minimum water quality standards, as set forth by state agencies, it would be “fundamentally inconsistent” to read § 13 as imposing a ban on all pollutant discharges. 461 F. 2d, at 473. We cannot agree. The Water Quality Acts were a congressional attempt to enlist state and local aid in a concentrated water pollution control and abatement program. The legislative directive of those statutes was that state and local officials, working in cooperation with federal officials, establish minimum water quality standards and create pollution prevention and abatement programs. Nothing in the statutes or their parent statute operated to permit discharges that would otherwise be prohibited by § 13, and in each case Congress specifically provided that the new statutes were not to be construed as “affecting or impairing the provisions of [ § 13 of the Rivers and Harbors Act of 1899].” Indeed, the water quality legislation expressly complements the provisions of § 13 of the 1899 Act. Section 13, although authorizing the Secretary of the Army to permit certain water deposits, contains no criteria to be followed by the Secretary in issuing such permits. The water quality legislation, on the other hand, calls for the setting of minimum water quality standards, and once such standards are established, federal permit authority, such as that vested in the Secretary of the Army by the second proviso to § 13, is specifically limited to that extent — i. e., a permit could not be granted by the Secretary unless the discharge material met the applicable standards. Water Quality Improvement Act of 1970, § 103, 84 Stat. 107. In essence, therefore, the Water Quality Acts placed a limitation on the Secretary's permit authority without undermining the general prohibitions of § 13. See United States v. Maplewood Poultry Co., 327 F. Supp. 686, 688 (Me. 1971); United States v. United States Steel Corp., 328 F. Supp. 354, 357 (ND Ind. 1970); United States v. Interlake Steel Corp., 297 F. Supp. 912, 916 (ND Ill. 1969). We, therefore, find nothing fundamentally inconsistent between § 13 and the subsequent federal enactments in the water quality field. Section 13 declares in simple absolutes that have been characterized as “almost an insult to the sophisticated wastes of modern technology” that “[i]t shall not be lawful” to discharge or deposit into navigable waters of the United States “any refuse matter of any kind or description whatever” except as permitted by the Secretary of the Army. In enacting subsequent legislation in the water quality field, Congress took special precautions to preserve the broad prohibitions of § 13 and in no way implied that those prohibitions were operative only under a formal regulatory-permit program. Similarly, nothing in the language or history of § 13 conditions enforcement of its prohibitions on the establishment of a formal regulatory-permit program and, as we have said in the past, “the history of this provision and of related legislation dealing with our free-flowing rivers ‘forbids a narrow, cramped reading’ of § 13.” United States v. Standard Oil Co., 384 U. S., at 226; United States v. Republic Steel Corp., 362 U. S. 482, 491 (1960). II We turn, therefore, to the Court of Appeals’ alternative ground for reversing PICCO’s conviction, namely, that in light of the longstanding, official administrative construction of § 13 as limited to those water deposits that tend to impede or obstruct navigation, PICCO may have been “affirmatively misled” into believing that its conduct was not criminal. We agree with the Court of Appeals that PICCO should have been permitted to present relevant evidence to establish this defense. At the outset, we observe that the issue here is not whether § 13 in fact applies to water deposits that have no tendency to affect navigation. For, although there was much dispute on this question in the past, in United States v. Standard Oil Co., supra, we held that “the 'serious injury’ to our watercourses . . sought to be remedied [by the 1899 Act] was caused in part by obstacles that impeded navigation and in part by pollution,” and that the term “refuse” as used in § 13 “includes all foreign substances and pollutants . . . .” 384 U. S., at 228-229, 230. See also Illinois v. City of Milwaukee, 406 U. S. 91, 101 (1972). Since then, the lower courts have almost universally agreed, as did the courts below, that § 13 is to be read in accordance with its plain language as imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation. See, e. g., United States v. Granite State Packing Co., 343 F. Supp. 57, aff’d, 470 F. 2d 303 (CA1 1972); United States v. Esso Standard Oil Co. of Puerto Rico, 375 F. 2d 621 (CA3 1967); United States v. Consolidation Coal Co., 354 F. Supp. 173 (ND W. Va. 1973); United States v. Genoa Cooperative Creamery Co., 336 F. Supp. 539 (WD Wis. 1972); United States v. Maplewood Poultry Co., 327 F. Supp. 686 (Me. 1971); United States v. United States Steel Corp., 328 F. Supp. 354 (ND Ind. 1970); United States v. Interlake Steel Corp., 297 F. Supp. 912 (ND Ill. 1969) ; contra, Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140 (ND Ala. 1971), aff’d, 456 F. 2d 1294 (CA5 1972). Nevertheless, it is undisputed that prior to December 1970 the Army Corps of Engineers consistently construed § 13 as limited to water deposits that affected navigation. Thus, at the time of our decision in Standard Oil, the published regulation pertaining to § 13 read as follows: ''§ 209.395. Deposit of refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U. S. C. 407), prohibits the deposit in navigable waters generally of 'refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.’ The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.” 33 CFR § 209.395 (1967). In December 1968, the Corps of Engineers published a complete revision of the regulations pertaining to navigable waters. The new regulations pertaining to § § 9 and 10 of the Rivers and Harbors Act of 1899, 33 U. S. C. §§ 401 and 403, dealing with construction and excavation in navigable waters, stated for the first time that the Corps would consider pollution and other conservation and environmental factors in passing on applications under those sections for permits to “work in navigable waters.” 33 CFR § 209.120 (d) (1969). But notwithstanding this reference to environmental factors and in spite of our intervening decision in Standard Oil, the new regulation pertaining to § 13 of the 1899 Act continued to construe that provision as limited to water deposits that affected navigation: “Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U. S. C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U. S. C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U. S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 CFR § 209.200 (e) (2) (1969). At trial, PICCO offered to prove that, in reliance on the consistent, longstanding administrative construction of § 13, the deposits in question were made in good-faith belief that they were permissible under law. PICCO does not contend, therefore, that it was ignorant of the law or that the statute is impermissibly vague, see Connolly v. General Construction Co., 269 U. S. 385 (1926); Bouie v. City of Columbia, 378 U. S. 347 (1964), but rather that it was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation. Cf. Raley v. Ohio, 360 U. S. 423 (1959); Cox v. Louisiana, 379 U. S. 559 (1965). Of course, there can be no question that PICCO had a right to look to the Corps of Engineers’ regulations for guidance. The Corps is the responsible administrative agency under the 1899 Act, and “the rulings, interpretations and opinions of the [responsible agency] . . . , while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which . . . litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944); Maritime Board v. Isbrandtsen Co., 356 U. S. 481, 499 (1958). Moreover, although the regulations did not of themselves purport to create or define the statutory offense in question, see United States v. Mersky, 361 U. S. 431 (1960), it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution. See Newman, Should Official Advice Be Reliable? — Proposals as to Estoppel and Related Doctrines in Administrative Law, 53 Col. L. Rev. 374 (1953); Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L. J. 1046 (1969). The Government argues, however, that our pronouncement in Standard Oil precludes PICCO from asserting reliance on the Corps of Engineers’ regulations and that, in any event, the revised regulation issued in 1968, when considered in light of other pertinent factors, was not misleading to persons in PICCO’s position. But we need not respond to the Government’s arguments here, for the substance of those arguments pertains, not to the issue of the availability of reliance as a defense, but rather to the issues whether there was in fact reliance and, if so, whether that reliance was reasonable under the circumstances — issues that must be decided in the first instance by the trial court. At this stage, it is sufficient that we hold that it was error for the District Court to refuse to permit PICCO to present evidence in support of its claim that it had been affirmatively misled into believing that the discharges in question were not a violation of the statute. Accordingly, the judgment of the Court of Appeals is modified to remand the case to the District Court for further proceedings consistent with this opinion. It is so ordered. The Chief Justice, Mr. Justice Stewart, and Mr. Justice Powell Section 13, 33 U. S. C. § 407, provides: “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” Section 16 of the Rivers and Harbors Act of 1899, 33 U. S. C. § 411, provides: “Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” A formal permit program under § 13 was established subseauent to the dates of the alleged violations involved in this case. See n. 9, infra. On October 18, 1972, Congress passed a comprehensive piece of legislation providing for national water quality standards and for a federal permit program relating to the discharge of pollutants into navigable waters. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. Section 402 of the 1972 Act, 33 U. S. C. § 1342, prohibits further issuance of permits under § 13 of the Rivers and Harbors Act of 1899 and designates the Administrator of the Environmental Protection Agency as the exclusive authority to permit discharges of pollutants into navigable waters. The refuse matters were identified as “iron, aluminum, and compounds containing these chemicals, and chlorides, phosphates, sulfates and solids.” App. 3. The Monongahela River is a 128-mile-long, navigable waterway that flows through western Pennsylvania and northern West Virginia. Section 13 is sometimes referred to as the “Refuse Act of 1899,” but that term is a post-1970 label not used by Congress, past or present. Moreover, some authors use the term to refer only to § 13, see, e. g., Note, The Refuse Act of 1899: New Tasks for an Old Law, 22 Hastings L. J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e. g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971). It has been suggested that since § 13 prohibits the “discharge, or deposit” of refuse but authorizes the Secretary to permit only “the deposit” of refuse, it may be appropriate to distinguish between a “discharge” and a “deposit” and hold that only a “deposit” of refuse may be permitted by the Secretary. Hearings before the Subcommittee on the Environment of the Senate Committee on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no support for such a distinction in either the Act itself or its legislative history. The Secretary’s authority to issue permits under, § 13 terminated on October 18, 1972. See n. 2, supra. 62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66 Stat. 755; Water Pollution Control Act Amendments of 1956, 70 Stat. 498; Federal Water Pollution Control Act Amendments of 1961, Pub. L. 87-88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903; Clean Water Restoration Act of 1966, Pub. L. 89-753, 80 Stat. 1246; Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91. On December 23, 1970, the President announced the establishment of a formal § 13 permit program. Executive Order 11574, 35 Fed. Reg. 19627 (Dec. 25, 1970). The Corps of Engineers followed on December 30, 1970, with proposed regulations. 35 Fed. Reg. 20005 (Dec. 31, 1970). Final regulations implementing the President’s program became effective April 7, 1971. 33 CFR §209.131 (1972). That program, with certain changes, has now become part of the new permit program authorized by § 402 of the Federal Water Pollution Control Act Amendments of 1972. See n. 2, supra. This part of the Court of Appeals’ decision is not before us for review. See Brennan v. Arnheim & Neely, 410 U. S. 512, 516 (1973); NLRB v. International Van Lines, 409 U. S. 48, 52 n. 4 (1972). See § 11 of the Act, 33 U. S. C. § 404, which instructs the Secretary of the Army to establish harbor lines beyond which works may not be extended or deposits made “except under such regulations as may be prescribed from time to time by him.” See also § 4 of the Rivers and Harbors Act of 1905, 33 Stat. 1147, 33 U. S. C. § 419, authorizing regulations regarding the transportation and dumping of dredging material. This section of the 1894 Act, as well as § 6 of the 1890 Act, was modeled, after statutes passed in 1888 and 1886 pertaining only to New York Harbor. See United States v. Standard Oil Co., 384 U. S. 224, 226-228 (1966). Act of June 3, 1896, c. 314, § 2, 29 Stat. 234. H. R. Doc. No. 293, 54th Cong., 2d Sess. (1897). Ibid. See 33 U. S. C. § 414. 32 Cong. Rec. 2297 (1899). It is true that § 6 of the 1894 Act prohibited discharges and deposits only “elsewhere than within the limits defined and permitted by the Secretary of War,” but that language did not contemplate the establishment of a formal regulatory program by the Secretary. Section 6 of the 1890 Act granted the Secretary discretionary authority to permit nonimpeding discharges and nothing in the 1894 Act purported to curtail that earlier grant of authority to the Secretary. Thus, the reference in the 1894 provision to “limits defined and permitted by the Secretary” refers merely to the Secretary’s existing permit authority under the 1890 provision. Inferentially, the Court of Appeals also referred to § 4 of the Rivers and Harbors Act of 1905, 33 U. S. C. § 419. See 461 F. 2d 468, 475 n. 7. But that provision, which was originally proposed as an amendment to § 13 of the 1899 Act and clearly contemplated the establishment of a formal regulatory program by the Secretary (although it did not require that such a program be established), provides no support for the Court of Appeals’ interpretation of § 13. On the contrary, the existence of § 4 of the 1905 Act tends to confirm the conclusion that § 13 is not conditioned on the establishment of a formal regulatory program. For the legislative history of § 4 explains that it was deemed desirable to give the Secretary authority to promulgate general permissive dumping regulations as to some bodies of water '(such as New York and Boston Harbors) because a large amount of illegal dumping was going on in these waters at night and it was “almost impossible to detect” the violators, thereby making it “impossible to secure convictions.” 39 Cong. Rec. 3078 (1905). A formal regulatory program, in other words, was the lesser of two evils as to these bodies of water since there were insufficient facilities and personnel to effectively enforce the general prohibitions of § 13. The implication is clear, however, that had the persons responsible for the unauthorized dumping been discovered, prosecution for violation of § 13 would have been the appropriate remedy, even though then, as at the time of the present offenses, there existed no formal regulatory program under § 13. No explanation was given by Congress for its ultimate decision to codify § 4 of the 1905 Act separately rather than as an amendment to § 13. Possibly, Congress hoped that such regulations would be issued sparingly so as not to eviscerate the broad antidumping prohibitions of § 13. In any event, the Secretary’s discretionary regulatory-program authority under § 4 of the 1905 Act certainly cannot be read into § 13 as an operative requirement, and absent establishment of a regulatory program under §4 of the 1905 Act as to a particular body of water, the prohibitions of § 13 remain intact and completely enforceable. These statutes are to a large extent superseded by the 1972 amendments to the Water Pollution Control Act. See n. 2, supra. See § 11 of the Water Pollution Control Act of 1948, 62 Stat. 1161, as amended in 1956, 70 Stat. 507, as further amended by the Water Quality Act of 1965, 79 Stat. 903, and as further amended by the Water Quality Improvement Act of 1970, 84 Stat. 113. Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971). It was conceded for purposes of this case that the refuse matter involved was not of a nature that would impede or obstruct navigation. 461 F. 2d, at 478. See also n. 3, supra. The seeming ambiguity of the language of § 13 and the sparse legislative history of that provision caused the lower courts to disagree over the years as to the proper scope of § 13. The second clause of § 13, which prohibits the deposit of refuse on the “bank” of any navigable water or tributary where such refuse may be washed into the water, is expressly limited to deposits that shall or may impede or obstruct navigation. The first clause of § 13, however, which is set off from the second clause by a semicolon, contains no language of its own limiting its prohibition to navigation-impeding deposits. Similarly, in regard to the two predecessor statutes of § 13, § 6 of the 1890 Act was expressly limited to navigation-impeding deposits, but § 6 of the 1894 Act was not. And the legislative history of § 13 and its predecessor statutes is hardly conclusive on this issue. But see Comment, Discharging New Wine into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 U. Pitt. L. Rev. 483 (1972). See as construing § 13 to be applicable to all water deposits regardless of their tendency to obstruct or impede navigation, La Merced, 84 F. 2d 444 (CA9 1936); The President Coolidge, 101 F. 2d 638 (CA9 1939); United States v. Ballard Oil Co. of Hartford, 195 F. 2d 369 (CA2 1952). See as construing § 13 to be applicable only to navigation-impeding deposits, United States v. Crouch (1922) (unreported, see United States v. Standard Oil Co., 384 U. S., at 229 n. 5); Warner-Quinlan Co. v. United States, 273 F. 503 (CA3 1921); Nicroli v. Den Norske Afrika-Og Australielinie, 332 F. 2d 651 (CA2 1964). Standard Oil involved an accidental discharge of aviation gasoline into navigable waters . The District Court had made the finding that the gasoline “was not such as to impede navigation.” United States v. Standard Oil Co., No. 291, O. P. 1965, App. 8-11. Section 4 of the Rivers and Harbors Act of 1905 authorizes the Secretary of the Army to prescribe regulations to govern the transportation and dumping into navigable waters of dredgings, earth, garbage, and other refuse matter whenever in his judgment such regulations are required “in the interest of navigation.” 33 U. S. C. § 419. Thus, the reference to that provision in the Corps’ revised regulation did not signify a change in the Corps’ construction of § 13. The other factors that the Government argues must be taken into consideration are post-1968 regulations issued with respect to other sections of the 1899 Act and with respect to other acts, and certain Corps of Engineers press releases and periodic publications. Brief for United States 35-38.

United States v. Pennsylvania Industrial Chemical Corp.

dissent in part, because they agree with the Court of Appeals that the respondent on remand should also be given the opportunity to prove the nonexistence of a permit program at the time of the alleged offenses. Mr. Justice Blackmun and Mr. Justice Rehnquist agree with Part I, but believing that the Court’s opinion and judgment in United States v. Standard Oil Co., 384 U. S. 224 (1966), make absolutely clear the meaning and reach of § 13 with respect to PICCO’s industrial discharge into the Monongahela River; that subsequent reliance upon any contrary administrative attitude on the part of the Corps of Engineers, express or by implication, is unwarranted; and that the District Court was correct in rejecting PICCO’s offer of proof of reliance as irrelevant, would reverse the Court of Appeals with directions to reinstate the judgment of conviction.

City of Evansville v. Kentucky Liquid Recycling, Inc.

TONE, Circuit Judge. Three Indiana municipal corporations that use water from the Ohio River bring this action to recover damages incurred because of defendants’ discharges of contaminants into the river from Kentucky. The most important question on this appeal is whether plaintiffs have stated a claim over which the district court had jurisdiction. We hold that a claim is stated under the federal common law of nuisance and that the court had jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs are Evansville, Indiana, the water works department of that city, and Mount Vernon, Indiana. Defendants are Kentucky Liquid Recycling, Inc., three of its employees, and Louisville and Jefferson County Metropolitan Sewage District. Plaintiffs allege that Kentucky Liquid Recycling discharged toxic chemicals into the sewer system of the sewer district, and that the sewer district'in turn discharged these chemicals into the Ohio River, from which plaintiffs draw water into their treatment plants. As a result of these discharges, it is alleged, plaintiffs incurred unusual treatment expense and other expenses, which they seek to recover as damages. They also seek punitive damages. Plaintiffs seek to represent a class of similarly situated municipalities and water treatment facilities, for whom similar relief is asked. Although inartfully stated, several theories of federal jurisdiction are discernible from the amended complaint: (1) jurisdiction under 28 U.S.C. § 1331 over implied rights of action under (a) § 13 of the Rivers and Harbors Act, 33 U.S.C. § 407, (b) the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq., and (c) the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.; (2) jurisdiction under the citizen suit provisions of the latter two statutes; and (3) jurisdiction under 28 U.S.C. § 1331 over a right of action under the federal common law of nuisance. Plaintiffs also assert state law claims, which, diversity of citizenship being lacking, must rest on pendent jurisdiction. In dismissing the amended complaint for lack of subject matter jurisdiction, the district court held that violation of § 13 of the Rivers and Harbors Act did not give rise to a private right of action. The possibility of implying a right of action under the other two Acts was not discussed; and, viewing the notice requirements for citizen suits to enforce the requirements of the other two Acts as jurisdictional prerequisites, the court found jurisdiction lacking because of plaintiffs’ admitted failure to comply with these requirements. The court rejected plaintiffs’ contention that the savings clause of either statute in combination with 28 U.S.C. § 1381 provided an adequate basis for federal court jurisdiction. In addition, the court held that because plaintiffs were not states, jurisdiction could not be sustained under 28 U.S.C. § 1331 and the federal common law of nuisance. Having concluded that it had no. jurisdiction over the federal claims, the court dismissed the pendent state law claims. I. Rivers and Harbors Act We agree with the district court that a private right of action should not be inferred under § 13 of the Rivers and Harbors Act, which does not expressly create one. The Supreme Court has recently made it clear that, when Congress does not expressly create a. private cause of action, an intent to do so is not lightly to be inferred. Touche Ross & Co. v. Redington,—U.S.—, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Shiffrin v. Bratton,—U.S.—, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979) (vacating and remanding for further consideration in light of Touche Ross); see Cannon v. University of Chicago,—U.S.—, 99 S.Ct. 1946, 1967-1968, 60 L.Ed.2d 560 (majority opinion), 1968 (Rehnquist, J., concurring), 1985 (Powell, J., dissenting) (1979); Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). Referring to the four factors stated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court in Touche Ross explained that although each is “relevant,” they are not necessarily entitled to equal weight, and, moreover, [t]he central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, 95 S.Ct., at 2088 — are ones traditionally relied upon in determining legislative intent. —U.S. at—, 99 S.Ct. at 2489. The Court also said, To the extent our analysis in today’s decision differs from that of the Court in [J. I. Case v.] Borak, [377 U.S. 426, 84 S.Ct. 1555,12 L.Ed.2d 423 (1964)], it suffices to say that in a series of cases since Borak we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today. Touche Ross v. Redington, supra,—U.S. at—, 99 S.Ct. at 2490 (citing Cannon). Even before these recent Supreme Court decisions, the Third Circuit refused to infer a private right of action from sections of the Rivers and Harbors Act that are analogous for present purposes, and district courts reached the same conclusion with respect to § 13. The first factor listed in Cort v. Ash is whether the plaintiff is “one of the class for whose especial benefit the statute was enacted,” Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? 422 U.S. at 78, 95 S.Ct. at 2088. Referring to this factor in Cannon, the majority said, the Court has been especially reluctant to imply causes of actions under statutes that create duties on the part of persons for the benefit of the public at large. —U.S. at—, 99 S.Ct. at 1954-1955 n.13; see also Touche Ross v. Redington, supra,—U.S. at—, 99 S.Ct. 2479. The duties created by the provision relied on by plaintiffs in this case are for the benefit of the public at large. As for the second Cort v. Ash factor, neither party cites any legislative history that might shed light on Congress’ intent. The third factor, the consistency of a private right of action with “the underlying purposes of the legislative scheme,” Cort v. Ash, supra, 422 U.S. at 78, 95 S.Ct. at 2088, is not helpful to plaintiffs here. Section 17 of the Act, 38 U.S.C. § 413, expressly delegates enforcement of the provisions of § 13 to the Department of Justice; and § 16 of the Act, 33 U.S.C. § 411, authorizes the district courts to award one-half of any criminal fines imposed on violators of § 13 to “persons giving information which shall lead to conviction.” While a private right of action would not be inconsistent with either of these provisions, both suggest that Congress intended to leave primary enforcement of the provision of the Act to the Department of Justice. Cf. Red Star Towing v. Department of Transportation, supra note 5, 423 F.2d at 105 & n.3. The fourth Cort v. Ash factor seems to cut both ways, for the cause of action asserted here, although perhaps “one traditionally relegated to state law,” is not “in an area basically the concern of the States.” 422 U.S. at 78, 95 S.Ct. at 2088. No one factor is controlling. Here the first, and arguably, the third factors weigh against implication of a private right of action; the second and fourth are at best only neutral. The central inquiry is congressional intent, Touche Ross v. Redington, supra,—U.S. at—, 99 S.Ct. at 2479, and given the “stricter standard for the implication of private causes of action,” id. at—, 99 S.Ct. at 2490, established in the Supreme Court’s most recent decisions in this area, we think the evidence insufficient to support the conclusion that Congress intended to create a private right of action under § 13 of the Rivers and Harbors Act. II. Federal Water Pollution Control Act Relying primarily on Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975), plaintiffs contend that the district court erred in holding that jurisdiction was lacking under the Federal Water Pollution Control Act Amendments be-, cause they had failed to comply with the notice provisions of § 505. More specifically, plaintiffs contend that the district court had jurisdiction of their FWPCA claims under 28 U.S.C. § 1331 by operation of the “saving clause” contained in § 505. In the cited case and an earlier case the Second Circuit joined the District of Columbia Circuit, Natural Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975), in holding that an action could be maintained against an administrative official despite the plaintiff’s failure to comply with the FWPCA’s 60-day notice requirement. We declined to follow the latter decision in City of Highland Park v. Train, 519 F.2d 681, 693 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), a case arising under the Clean Air Amendments of 1970, 42 U.S.C. §§ 1857a, et seq. In any event, these three decisions of other circuits are inapplicable here. In each, the court’s focus was on whether it had jurisdiction, since the Administrative Procedure Act, 5 U.S.C. § 702, provided for review of final agency actions. In none of these cases did the court consider the propriety of implying an independent private right of action under the FWPCA. Compare Chrysler v. Brown, supra, 441 U.S. at 316, 99 S.Ct. at 1725. In the case at bar the APA is of course inapplicable; any private right of action based oh the FWPCA, other than that conferred by the citizen suit provision, must be inferred from the Act itself. Plaintiffs’ failure to comply with the notice requirement precludes reliance on § 505(a) as a basis for the action. E. g., Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121 (1st Cir. 1976). Furthermore, even if the requisite notice had been given, § 505(a) would not have authorized plaintiffs’ claim. That provision authorizes a civil action against a party “alleged to be in violation” of effluent standards or limitations prescribed under the Act or. an order of the Administrator or a state with responsibility under the Act. It does not provide for suits against parties alleged to have violated an effluent standard or limitation in the past or for recovery of damages. The legislative history of the provision leaves little doubt that neither class actions nor actions for damages were contemplated. The Senate Report states as follows: Section 505 does not authorize a “class action.” Instead, it would authorize a private action by any citizen or citizens acting on their own behalf. Questions with respect to traditional “class” actions often involve: (1) identifying a group of people whose interests have been damaged; (2) identifying the amount of total damage to determine jurisdiction qualification; and (8) allocating any damages recovered. None of these is appropriate in citizen suits seeking abatement of violations of water pollution control requirements. It should be noted, however, that the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages. Thus, unless plaintiffs can establish some other basis for this claim, the district court properly dismissed it. Failure to comply with the notice provisions of § 505(b) does not foreclose ariy other right to relief a plaintiff might have.' The saving clause, § 505(e), 33 U.S.C. § 1365(e), expressly preserves any such rights. Cf. City of Highland Park v. Train, supra, 519 F.2d at 691-693; see also Illinois v. Milwaukee, 599 F.2d 151 (7th Cir. 1979) (holding that the Federal Water Pollution Control Act does not preclude a federal common law action under 28 U.S.C. § 1331). The saving clause preserves rights “under any statute or common law” but does not itself create any right. Assuming that the Act itself is within the term “any statute” (but see note 20 and accompanying text, infra), still no right exists under the Act unless it can be inferred, because none is expressed. We therefore turn again to the standards discussed in Part I, above, to determine whether such a right should be inferred. Recognizing that “[t]he most accurate indicator of the propriety of implication of a cause of action” is the language of the statute, Cannon v. University of Chicago, supra,—U.S. at—, 99 S.Ct. at 1954-1955 n.13, we shall again proceed through the still relevant Cort v. Ash factors. Plaintiffs cite no particular provision of the Act as supporting their claim for relief, but presumably they rely on § 301, 83 U.S.C. § 1311, which proscribes the discharge of any pollutant except in compli-anee with the provisions of the Act. ther that section nor any other section of the Act contains any suggestion that Congress intended to confer a benefit or right on any particular segment of the public. Nei- Moreover, it is significant that the Act contains a section specifically addressed to private rights of action, § 505, which not only provides for citizen suits but also contains, in subsection (e), a saving clause providing that nothing in the section is to affect any right “under any statute or common law.” Congress having thus specifically addressed the subject of private remedies, it is reasonable to assume that it said all that it intended on that subject. Cf. Touche Ross v. Redington, supra,—U.S. at—, 99 S.Ct. 2479. Section 505 evidences a congressional intent to carefully channel public participation in the enforcement of the Act. Before commencing a citizen suit the plaintiff must give notice not only to the alleged violator but also to the Administrator and the state in which the violation occurs. If either the Administrator or the state initiates adequate enforcement proceedings, the private action is foreclosed, although the complainant is authorized to intervene “as of right.” § 505(b), 33 U.S.C. § 1365(b). The legislative history of the Act contains no specific answer to the question of whether § 301 creates a private right of action. The reference to § 505 in the Senate Report on S.2770, quoted above,, in referring, inter alia, to damage actions, interprets the statutory phrase “under any statute or common law” as “under any other law.” Even if this was intended only as paraphrase, it suggests that a right of action for damages must be found outside the Act itself. And Congress’ rejection of all but two of the proposed exceptions to the requirement of a 60-day waiting period for a citizen suit, see note 16, supra, reinforces the evidence in § 505 itself of an intent to circumscribe private rights of action under the FWPCA. What we have said about § 505 is also applicable with respect to the third factor identified in Cort v. Ash, namely, “is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?” 422 U.S. at 78, 95 S.Ct. at 2086. Section 505 expresses Congress’ judgment as to the kind and extent of private enforcement of the FWPCA. In a private suit under § 505(a) a court, at the behest of a private plaintiff, may enforce compliance with effluent standards and limitations, require the Administrator to perform a duty to act, and impose civil penalties under § 309(d), 33 U.S.C. § 1319(d). Implication of a private remedy for damages under § 301 would be inconsistent with the congressional purpose implicit in the Act of encouraging private participation in the enforcement of the Act within the channels expressly provided. Cf. Touche Ross v. Redington, supra,—U.S. at—, 99 S.Ct. 2479; National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 457-458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); T. I. M. E., Inc. v. United States, 359 U.S. 464, 470-471, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959). The enforcement scheme is adequate without an inferred private right of action. The Administrator of the EPA is given broad authority to enforce the provisions of the Act; states assuming discharge permit authority are required to demonstrate adequate state law authority to insure compliance. If a state fails to enforce the Act, the Administrator may do so, and, in the case of repeated failures to enforce the Act, the Administrator may resume direct authority for issuance of permits in that state. These enforcement procedures are reinforced by the citizen suit provisions of § 505, which also authorizes the award of attorney’s fees and litigation costs to citizen plaintiffs. We conclude that plaintiffs have not carried their burden of establishing that Congress intended to create a private right of action for damages against a violator of the FWPCA in favor of a person injured by pollutant discharges. The amended complaint does not state a claim under the FWPCA on which relief could be granted. III. Safe Drinking Water Act Plaintiffs recognize in their brief that their assertion of a right of action under the Safe Drinking Water Act is subject to the same analysis as their claim to a right of action under FWPCA. We do not, however, even find it necessary to apply that analysis, because defendants’ alleged conduct does not even arguably violate the Safe Drinking Water Act. That Act authorizes the Administrator of the EPA to prescribe maximum contaminant levels in drinking water and specific treatment techniques to reduce the level of contaminants in drinking water. With an exception not relevant here, the Act does not purport to regulate discharges of pollutants. It focuses on “public water systems,” see, e. g., 42 U.S.C. § 300g, and attempts to insure that such systems provide drinking water that meets minimal safety standards. See generally H.R.Rep. No.93-1185, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6454, 6456-6462. Plaintiffs point to no provision of the Act within which defendants’ conduct even arguably falls; we have found none. If this were the only basis asserted for a federal cause of action subject to the district court’s jurisdiction, plaintiffs’ claim would be “wholly insubstantial and frivolous” and therefore within the narrow category of claims that should be dismissed for lack of federal jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536-543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946). IV. Federal Common Law Plaintiffs’ assertion of a right of action under the federal common law of nuisance and federal jurisdiction over such a claim under 28 U.S.C. § 1331, is well founded. Defendants argue that, as the district court held, under Illinois v. Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), only a state may file such an action. Plaintiffs do not seek to represent the “quasi-sovereign interest,” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038 (1907), or the “ecological rights,” Texas v. Pankey, 441 F.2d 236, 240 (10th Cir. 1971), of the State of Indiana. Because they are not states, they cannot represent the interests of any other state, see Rule 23(a)(3), Fed.R.Civ.P., and they do not seek to do so. They seek only to recover for themselves and other similarly situated municipal bodies damages for expenses they incurred because of defendants’ discharges of toxic chemicals into drinking water supplies. Since it was the Supreme Court’s opinion in Illinois v. Milwaukee that firmly established the existence of a federal common law of nuisance governing interstate water pollution, we take that opinion as our text in determining the content and scope of that law. See also Texas v. Pankey, supra, 441 F.2d at 239-242. The Court did not address itself in Illinois v. Milwaukee to the question of whether parties other than states were protected by, or could invoke, that law, since the only plaintiff in that case was a state. The Court’s opinion does, however, provide guidance for resolution of the question before us. The Court held that “laws” in 28 U.S.C. § 1331(a) includes federal common law as well as statutory law, 406 U.S. at 100, 92 S.Ct. 1385, and declared that there is a federal common law of nuisance applicable to interstate water pollution. Id. at 103, 92 S.Ct. 1385. Referring to the problem of water apportionment, the Court said Rights in interstate streams, like questions of boundaries, “have been recognized as presenting federal questions.” Hinderlider v. LaPlata Co., 304 U.S. 92, 110, 58 S.Ct. 803, 811, 82 L.Ed. 1202 [(1938)]. The question of apportionment of interstate waters is a question of “federal common law” upon which state statutes or decisions are not conclusive. 406 U.S. at 105, 92 S.Ct. at 1393-94 (footnote omitted). The Court’s footnote 6 is particularly suggestive of the correct resolution of the issue in the case at bar: Thus, it is not only the character of the parties that requires us to apply federal law. ... As Mr. Justice Harlan indicated for the Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-427, 84 S.Ct. 923, 936-40, 11 L.Ed.2d 804 [(1964)], where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law. , . Certainly these same demands for applying federal law are present in the pollution of a body of water such as Lake Michigan bounded, as it is, by four States. Id. at 105, 92 S.Ct. at 1393-1394 (citations omitted). Whatever the result should be when the plaintiff is a private party or when no interstate effects are alleged, there can be little doubt that the reasons the Supreme Court found compelling for declaring a federal common law of interstate water pollution are applicable here. The plaintiffs are municipal or public corporations, subdivisions of the state, that were required to spend public funds because of pollution of an interstate waterway by acts done in another state. The interests of the state in this interstate pollution dispute are implicated in the same way such interests were implicated in Illinois v. Milwaukee. The sewer district asserts that a passage from New Jersey v. New York, 345 U.S. 369, 73 S.Ct. 689, 97 L.Ed. 1081 (1953), quoted in Illinois v. Milwaukee, supra, 406 U.S. at 96-97, 92 S.Ct. at 1389, supports the view that only a state may maintain a suit based on the federal common law. The portion of the passage relied on is as follows: The City of Philadelphia represents only a part of the citizens of Pennsylvania who reside in the watershed area of the Delaware River and its tributaries and depend upon those waters. If we undertook to evaluate all the separate interests within Pennsylvania, we could, in effect, be drawn into an intramural dispute over the distribution of water within the Commonwealth. As the rest of the passage quoted in Illinois v. Milwaukee, supra, 406 U.S. at 97, 92 S.Ct. at 1389, demonstrates, the language will not bear the construction asserted by the sewer district: Our original jurisdiction should not be thus expanded to the dimensions of ordinary class actions. An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state. The issue in New Jersey v. New York was whether Philadelphia should be permitted to intervene in an original action in the Supreme Court in which Pennsylvania was already a party. What the Court said in addressing that issue has no bearing on whether a party other than a state can maintain a federal common law nuisance action in a district court. So far there is little authority on the question we decide. At least one district court has held that a municipality can state a claim for relief under the federal common law of interstate water pollution. Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1214 (D.N.J.1978). Both the Second and Third Circuits have indicated that the United States can state a claim for relief under the federal common law. Defendants also contend that plaintiffs’ request for damages rather than injunctive relief someho\y precludes the district court’s exercise of jurisdiction. None of the defendants cites any authority for that proposition, and we have discovered none. We have held that plaintiffs are appropriate parties to maintain the cause of action asserted. The question of what relief, if any, they may be entitled to is independent of the court’s power to hear and decide the merits of the claim. See Davis v. Passman, —U.S.—,—, 99 S.Ct. 2264, 2274 n.18, 60 L.Ed.2d 846 (1979). Whether or not defendants have breached any obligations for which they should be held liable to plaintiffs will be determined by judge-made rules. The consequences of any breach of duty imposed by the courts are necessarily also determined by the courts. Cf. International Brotherhood of Electrical Workers v. Foust,—U.S.—,—, 99 S.Ct. 2121, 2125, 60 L.Ed.2d 698 (majority opinion), 2128 (Blackmun, J., concurring) (1979) (breach of union’s duty of fair representation). The remedies appropriate for the violation of duties imposed under the federal common law of water pollution will necessarily depend upon the facts in a particular case. E. g., Illinois v. Milwaukee, supra, 599 F.2d at 175. We hold only that a request for damages does not preclude the exercise of jurisdiction of a claim arising under the federal common law of interstate water pollution. Accordingly, the district court had subject matter jurisdiction of plaintiffs’ claim under the federal common law of interstate water pollution. Y. Venue and Personal Jurisdiction Since we should affirm a district court judgment on any ground supported by the record on appeal, our disposition of the federal common law claim would ordinarily lead us to consider any other substantial ground urged for affirmance. Nevertheless, in this case we think it wise to defer consideration of the sewer district’s contention that the Indiana long-arm statute, applicable here by force of Rule 4(e), Fed.R. Civ.P., is insufficient to permit the exercise of personal jurisdiction, a contention the trial judge found it unnecessary to reach because of his holding on subject matter jurisdiction. If the issue were governed by Illinois law, our decision in Illinois v. Milwaukee, supra, 599 F.2d 151, sustaining in personam jurisdiction, would be controlling. Indiana’s long-arm statute is different from that of Illinois, however. The parties have cited no Indiana decision construing the relevant provisions of the statute, and our research has revealed none. Although federal district courts sitting in Indiana have stated that the “Indiana long-arm statute was intended to extend personal jurisdiction of courts sitting in this state, ., to the limits permitted under the due process clause of the fourteenth amendment," Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 308 (S.D.Ind.1978), the specific statutory provisions appear to be more limited. Subsection (2) of the Indiana long-arm statute refers to “an act or omission done within this state.” We cannot determine whether the Indiana courts will conclude that this phrase includes only acts physically done within the state or also includes acts physically done outside the state but causing some injury within it; either construction is possible. Subsection (3) of the Indiana statute suggests the narrower construction, since the broader construction would create considerable overlap between the provisions of subsections (2) and (3). Nevertheless, if it is correct that the legislature intended to expand Indiana state court jurisdiction to the limits of the due process clause, a broad construction may be warranted. This issue of Indiana statutory law should be decided in the first instance by a district judge sitting in Indiana, who will be more familiar with Indiana law and practice than we are. And it does seem that that was their intent: “The adoption of this rule will expand the in personam jurisdiction of the courts of this state to the limits permitted under the Due Process Cláuse of the Fourteenth Amendment.” Civil Code Study Commission, Comments to Rule 4.4, quoted in Valdez v. Ford, Bacon, supra, 62 F.R.D. at 10. The Comments are reprinted in W. Harvey, 1 Indiana Practice, 298-305 (1969). VI. State Law Claims We affirm the district court’s dismissal of the three state law claims. “[I]t is federal common law and not state statutory or common law that controls in this case,” Illinois v. Milwaukee, supra, 599 F.2d at 177 n.53; see Illinois v. Milwaukee, supra, 406 U.S. at 103 & n.5,107 & n.9, 92 S.Ct. 1385. Accordingly, the district court’s judgment is affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . Allegations of admiralty jurisdiction appearing in the complaint are not now relied on. . The court did not rule on the alternative grounds for dismissal asserted in the sewer district’s motion to dismiss, lack of jurisdiction over the person and improper venue. See Rule 12(b)(2) and (3), Fed.R.Civ.P. . 33 U.S.C. § 407: It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited from the shore, wharf, manufacturing establishment or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; . . . Whether plaintiffs have an implied cause of action under the statute is not a question of jurisdiction. Burks v. Lasker,—U.S.—,— & n.5, 99 S.Ct. 1831, 1836 & n.5, 60 L.Ed.2d 404 (1979). Therefore, if the implied right of action under discussion had been the only right asserted, the complaint should have been dismissed for failure to state a claim on which relief could be granted. Rule 12(b)(6), Fed.R.Civ.P. . Red Star Towing and Transportation Co. v. Department of Transportation of the State of New Jersey, 423 F.2d 104, 105 & n.3 (3d Cir. 1970). . E. g., Township of Long Beach v. City of New York, 445 F.Supp. 1203, 1211-1212 (D.N.J. 1978); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1277-1280 (D.Conn.1976), affd sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977). . Plaintiffs’ status as municipalities or a municipal agency is immaterial. For the language of the statute no more evidences an intent to “especially” benefit a class of municipalities or their agents than a class of private parties generally. Indeed, the Supreme Court has noted that “a principal beneficiary of the [Rivers and Harbors] Act, if not the principal beneficiary, is the [Federal] Government itself." Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 386, 19 L.Ed.2d 407 (1967). . As noted in Cannon, “the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question.” —U.S. at—, 99 S.Ct. at 1956. . “[E]very court which has considered the question has denied to private plaintiffs the right to bring an action under the [Rivers and Harbors] Act to recover in a qui tarn action the percentage of the fine which they might have been entitled to receive as informers if an offense had been prosecuted to conviction." Parsell v. Shell Oil Co., supra, 421 F.Supp. at 1279 (collecting cases, id. n.9). . We note also that the conduct of which plaintiffs complain may fall within the language of the statute excepting from its general prohibition “refuse . . . flowing from streets and sewers and passing therefrom in a liquid state.....” 33 U.S.C. § 407, quoted in note 3, supra; see United States v. Dexter Corp., 507 F.2d 1038 (7th Cir. 1975). . The question is whether a right of action exists. See note 4, supra. . 33 U.S.C. § 1365: (a) Except as provided in subsection (b) of this section, any citizen [defined in § 505(g), 33 U.S.C. § 1365(g)] may commence a civil action on his own behalf— (1) against any person . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator [of the Environmental Protection Agency] where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The [United States] district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. (b) No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right[,] (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. . “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief . . .” 33 U.S.C. § 1365(e). . Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-939 & n.62 (2d Cir. 1974), vacated for reconsideration in light of Aberdeen & Rockfísh R. R. Co. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975) (National Environmental Policy Act holding), 423 U.S. 809, 96 S. Ct. 19, 46 L.Ed.2d 29 (1975). . The view of most circuits at the time was that § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-704, provided an independent jurisdictional basis for judicial review of final agency action. The Supreme Court held otherwise in Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). . S.Rep.No.92-414, 92d Cong., 1st Sess. 81, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3668, 3746-3747; see also H.R.Rep. No.92-911, 92d Cong., 2d Sess. 133, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 753, 820 (1973) (noting that although the courts would be authorized to impose civil fines under § 309(d), 33 U.S.C. § 1319(d), “[t]he penalties imposed would be deposited as miscellaneous receipts in the treasury and not be recovered by the citizen bringing the suit”). With one exception significant here, § 505 as adopted “is the same as the comparable provision of the Senate Bill [S.2770] and the House Amendment [H.R.11896] . . . .” S.Rep.No.92-1236, 92d Cong., 2d Sess. 145 (Conference Report), reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3776, 3823. In both the Senate bill and the House bill, § 505 contained numerous exceptions to the 60-day waiting period required after notice. In the bill as adopted all of these exceptions but two were eliminated. Ibid. . For a discussion of the provisions of the Act see Illinois v. Milwaukee, 599 F.2d 151 (7th Cir. 1979). . See also § 101(e), 33 U.S.C. § 1251(e): “Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, 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.” See generally Citizens for a Better Environment v. EPA, 596 F.2d 720 (7th Cir. 1979); S.Rep.No.92-1236, 92d Cong., 2d Sess. 100 (Conference Report), reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3776, 3777; S.Rep.No.92-114, 92d Cong., 1st Sess., 12, 79-82, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 3668, 3679, 3745-3747; H.Rep.No.92-911, 92d Cong., 2d Sess. 79, 132, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 753, 766, 819-821 (1973). . See, e. g., S.Rep.No.92-414, 92d Cong., 1st Sess. 79-80, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 3668, 3745: “In order to further encourage and provide for agency enforcement the Committee has added a requirement that prior to filing a petition with a court, a citizen or group of citizens would first have to serve a notice of intent to file such action on the Federal and State Water Pollution Control Agency and the alleged polluter.” . This language in the Senate Report might also have been intended to state what was meant by the phrase “any statute or common law” rather than as a mere paraphrase. Thus, § 505(e) would preclude the inference of any congressional intent to create a private right of action for damages under other provisions of the FWPCA. Nevertheless, for purposes of analyzing the Cort v. Ash factors we assume that the statement is only a paraphrase of the statutory language. . The Safe Drinking Water Act, 42 U.S.C. § 300f, et seq., contains, in 42 U.S.C. § 300j-8, a notice provision comparable to that of § 505 of the FWPCA. . See 42 U.S.C. § 300g-l. For an overview of the statutory scheme, see Environmental Defense Fund v. Costle, 188 U.S.App.D.C. 95, 97-98, 100-102, 578 F.2d 337, 339-340, 342-344 (1978) (Leventhal, J.). . See 42 U.S.C. § 300h (underground injection of contaminants that may endanger drinking water supplies). . Public water system is defined as follows: [A] system for the provision to the public of piped water for human consumption, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals. 42 U.S.C. § 300f(4). . “The purpose of the legislation is to assure that water supply systems serving the public meet minimum national standards for protection of public health.” H.R.Rep.No.93-1185, supra, reprinted in [1974] U.S.Code Cong. & Admin.News, supra, at 6454. . “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,-000 . and arises under the . laws, ... of the United States.” 28 U.S.C. § 1331(a). . Compare P. Bator, P. Mishkin, D. Shapiro, and H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System, 806 (2d ed. 1973) (“Justice Douglas’ opinion [in Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972)] casts no light on the question whether federal common law governs suits to abate interstate pollution brought by private parties”) with Note, Federal Common Law and Interstate Pollution, 85 Harv.L.Rev. 1439, 1439 (1972) (“The holding in that case [Illinois v. Milwaukee] goes farther than the holding in the [Texas v.] Pankey [441 F.2d 236 (10th Cir. 1971)] case . . largely because the . Court indicated that federal common lawmaking power should be exercised in any interstate nuisance suit, regardless of the character of the parties; . . . ”). . In Hinderlider, the plaintiff was not a state but a ditch company complaining of Colorado’s interference with its rights to draw water from the LaPlata River. Colorado defended on the ground that its action was authorized by an interstate compact approved by Congress. . In Committee for Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976) (en banc), a divided court refused to extend Illinois v. Milwaukee to an action brought by an association of community organizations and citizens in which there was no interstate effect. Even though state plaintiffs were present in Reserve Mining Co. v. EPA, 514 F.2d 492, 520, 521 (8th Cir. 1975) (en banc), the court held Illinois v. Milwaukee inapplicable because no interstate effects were alleged. See also Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1281 (D.Conn.1976), aff'd sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977). But see Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036, 1039-1040 & n.9 (7th Cir. 1975); Ira S. Bushey & Sons v. United States, 346 F.Supp. 145 (D.Vt. 1972), aff'd, 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974). . Cf. Hinderlider v. LaPlata River & Cherry Creek D. Co., 304 U.S. 92, 110, 58 S.Ct. 803, 82 L.Ed. 1202 (1938) (interstate water apportionment); see also Georgia v. Tennessee Copper Co., 206 U.S. 230, 238, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (implicitly assuming that even a private party might file suit to enjoin interstate air pollution); Committee for Jones Falls Sewage System v. Train, supra, 539 F.2d at 1009 n.8. Originating in Pennsylvania, the Ohio River is the boundary between Ohio and West Virginia, Ohio and Kentucky, Indiana and Kentucky, and Illinois and Kentucky, and empties into the Mississippi River. Each of these states has an interest in the use of the river, but the laws of one state cannot control the use of the river by citizens of other states. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427, 84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964) (Hinderlider “implies that no State can undermine the federal interest in equitably apportioned interstate waters even if it deals with private parties”). . United States v. Ira S. Bushey & Sons, 346 F.Supp. 145 (D.Vt.1972) (Oakes, J.), affd, 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. Stoeco Homes, 498 F.2d 597, 611 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); see also Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036, 1040 n.9 (7th Cir. 1975); United States v. United States Steel Corp., 356 F.Supp. 556, 558 (N.D.Ill.1973). . The sewer district seems to assert that the Supreme Court’s decision in Illinois v. Milwaukee, supra, establishes a request for equitable relief as a “criterion” for maintaining a claim under the federal common law of interstate water pollution. We disagree. Plaintiffs in that case sought equitable relief because of the nature of the claimed injury. See Illinois v. Milwaukee, supra, 599 F.2d at 165. The Supreme Court’s discussion of Illinois’ right to maintain the action, therefore, focused on that type of claim. We find nothing in the opinion that supports the conclusion that equitable relief is exclusive or that a request for such relief is essential. . Nor is the relief sought ordinarily determinative of whether a plaintiff has a cause of action. “If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a ‘cause of action’ under the statute, and that this cause of action is a necessary element of his ‘claim.’ So understood, the question whether a litigant has a ‘cause of action’ is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.” Davis v. Passman,—U.S.—,—, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979). . Additional support for the conclusion we reach on this point may be found in the Supreme Court’s references to the law of “public nuisance.” Illinois v. Milwaukee, supra, 406 U.S. at 106, 107, 92 S.Ct. 1385; see also Vermont v. New York, 417 U.S. 270, 275 n.5, 94 S.Ct. 2248, 41 L.Ed.2d 61 (1974). For in such suits plaintiffs found to meet the “particular injury” requirements for maintaining a suit for public nuisance traditionally have been awarded damages or equitable relief depending upon the circumstances. See generally W. Prosser, Private Action for Public Nuisance, 52 Va.L. Rev. 997 (1966); W. Prosser, Handbook of the Law of Torts 602-606 (4th ed. 1971). “Once the existence of a nuisance is established, the plaintiff normally has three possible remedies: an action for the damages which he has suffered, equitable relief by injunction, and abatement by self help.” Id. at 602. . We express no judgment on the extent to which the sewer district may have a sovereign immunity defense since neither party has adequately briefed the issue, both stating, in effect, that the question does not affect jurisdiction. But cf. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). . The sewer district’s improper venue claim is adequately answered by our decision in Illinois v. Milwaukee, supra, 599 F.2d at 156, rejecting a similar argument. Leroy v. Great Western United Corp.,—U.S.—, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979), decided after our decision in Illinois v. Milwaukee, supra, does not require a contrary conclusion. In Great Western, the Court noted that if it is “not clear that the claim arose in only one specific district a plaintiff may choose between those two . . . districts that with approximately equal plausibility . . . may be assigned as the locus of the claim.”—U.S. at—, 99 S.Ct. at 2718. But in the case before it the Court found that there was “only one obvious locus . . . .” Ibid. Interstate water pollution disputes, however, fall within the first category. See Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10, 92 S.Ct. 1385; Illinois v. Milwaukee, supra, 599 F.2d at 156. For, in such disputes, proof of injury to the complainant is a significant aspect of the litigation. See generally Illinois v. Milwaukee, supra, 599 F.2d at 156. The defendant’s actions will commonly occur in a district other than that in which the injury is suffered, but it cannot be said that the “bulk of the relevant evidence and witnesses,” Leroy v. Great Western, supra,—U.S. at—, 99 S.Ct. at 2718, will be located in either district. . Trial Rule 4.4, Indiana Rules of Trial Procedure, reprinted in Ind.Stat.Ann.: Court Rules, Book 1 (Bums), in relevant part, is as follows: (A) Acts serving as a basis for jurisdiction. Any person or organization that is a nonresident of this state.....submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent: (1) doing any business in this state; (2) causing personal injury or property damage by an act or omission done within this state; (3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state; . . . E. g., Illinois v. Milwaukee, supra, 599 F.2d at 156 n.3; Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596, 598 (7th Cir. 1979). . Valdez v. Ford, Bacon, and Davis, Texas, 62 F.R.D. 7, 10, 14 (N.D.Ind.1974); Byrd v. Whitestone Publications, Inc., 27 Ind.Dec. 617, 619 (S.D.Ind.1971); see also Pearson v. Furnco Construction Co., 563 F.2d 815, 819 (7th Cir. 1977). But cf. Chulchian v. Franklin, 392 F.Supp. 203, 205 (S.D.Ind.1975). . The Indiana statute is based in part on the Illinois long-arm statute, Ill.Rev.Stat. ch. 110 § - 17; the New York long-arm statute, 7B McKinney’s Consolidated Laws of New York § 302, is also based in part on the Illinois statute. Yet, the courts of Illinois and New York have come to opposite conclusions concerning the scope of virtually identical phrases in their long-arm statutes. Compare Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 435-436, 176 N.E.2d 761, 762-763 (1961) (construing the phrase “tortious act within this state”) with Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 460, 261 N.Y.S.2d 8, 21, 209 N.E.2d 68, 77, cert. denied sub nom. Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965) (construing the phrase “tortious act within the state”). See also Harvey v. Chemie Grunenthal, 354 F.2d 428, 431 (2d Cir.), cert. denied, 384 U.S. 1001, 86 S.Ct. 1923, 16 L.Ed.2d 1015 (1965) (construing the New York long-arm statute). . Also, it seems apparent that the three subsections were not intended to be mutually exclusive. All three might be applicable for example, in a products liability action against an Illinois manufacturer that has no place of business in Indiana but regularly sells its products there. . Only the sewer district presses this claim on appeal. The other defendants moved to dismiss the amended complaint “for improper venue and failure to comply with the provi-siones] of ... 28 U.S.Code 1391(a) and . 28 U.S.Code Section 1391(b) . . .,” but in their memorandum in support of the motion seemed to argue in addition that the court had no personal jurisdiction, concluding with the following statement: Plaintiffs have not, and cannot, allege facts sufficient to support venue or personal jurisdiction in this Court, and the . . . Complaint must be dismissed. In responding to this motion to dismiss, however, plaintiffs only addressed the venue contention. If on remand these defendants do in fact raise the issue, the court should consider whether it has been preserved. Whether or not these defendants have waived the objection by failure to raise it, Rule 54(b), Fed.R.Civ.P., and 28 U.S.C. § 1292(b) provide available avenues for review of the court’s decision on the personal jurisdiction issue as it relates to the sewer district should the court make the requisite findings. . Although federal common law controls, federal' statutes as well as state statutory and common law are nonetheless highly relevant. Illinois v. Milwaukee, supra, 406 U.S. at 103 & n.5, 107 & n.9, 92 S.Ct. 1385; Illinois v. Milwaukee, supra, 599 F.2d at 165-166; cf. United States v. Kimbell Foods, 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 ’(1979); see generally Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797 (1957).

Central Hudson Gas & Electric Corp. v. United States Environmental Protection Agency

MESKILL, Circuit Judge: Three public utilities and the Power Authority of the State of New York engaged in the generation and sale of electricity in New York have brought suit against the United States Environmental Protection Agency (“EPA”), the New York State Department of Environmental Conservation (“DENCON”) and officials of those bodies. The principal relief sought is a declaration that DENCON, rather than EPA, has jurisdiction over pending applications to discharge pollution into the Hudson River. The United States District Court for the Southern District of New York, Robert L. Carter, Judge, dismissed the complaint for lack of subject matter jurisdiction on the ground that the Courts of Appeals have exclusive jurisdiction over the dispute. 444 F.Supp. 628 (S.D.N.Y.1978). By order of this Court, the appeal from the judgment entered in the district court has been consolidated with an original petition for review of a decision by the General Counsel of the EPA which determined that the EPA retained jurisdiction over the applications. We hold that the district court had jurisdiction and that the EPA has jurisdiction over the applications. PACTS Petitioners-appellants (“the utilities”) operate four steam-driven electric power generating plants at locations on the Hudson River. This generation of power requires that heat be removed from the system. To accomplish this, each power plant uses a “once-through” cooling system in which water is pumped from the river, circulated through condensers in the plant, and then returned to the river at elevated temperatures. Heat is a pollutant under the Federal Water Pollution Control Act, 33 U.S.C. § 1362(6), and therefore the utilities must obtain and comply with the terms of a National Pollution Discharge Elimination System (“NPDES”) permit issued pursuant to 33 U.S.C. § 1342. The Act provides that the Administrator of the EPA may issue a NPDES permit “after opportunity for public hearing.” 33 U.S.C. § 1342(a)(1). In recognition of “the primary responsibilities and rights of States,” 33 U.S.C. § 1251(b), the Act allows the States to assume control of the administration of the NPDES permit program, provided their own programs meet minimum federal standards. 33 U.S.C. § 1342(b). Once a State has taken over administration of the program, the Administrator of the EPA is directed to “suspend the issuance of permits.” 33 U.S.C. § 1342(c)(1). The utilities applied to the EPA for permits between 1971 and 1974. In accordance with EPA regulations, the regional staff of the EPA prepared “tentative determinations” with respect to each application and drafted proposed NPDES permits. 40 C.F.R. § 125.31. The public was notified of these tentative determinations. 40 C.F.R. § 125.32. After further study, the Regional Administrator of the EPA made a final “determination” with respect to each application. 40 C.F.R. § 125.35(a). In February and July of 1975, the EPA circulated a “Notice of Issuance of Final Determination” with respect to each of the four power plants; annexed to each was a NPDES permit which the EPA “proposed” to issue. The Notice stated that “[t]he Final Determination will become a final NPDES permit, issued and effective [in thirty days as provided in 40 C.F.R. § 125.35(c) and (d)] unless an Adjudicatory Hearing is granted pursuant to 40 C.F.R. § 125.36 . . . .” The permits which the EPA proposed to issue required, inter alia, that the thermal discharges now emanating from the power plants be reduced by ninety percent. The parties assume that under current technology this result can be achieved only by reducing the electricity, generated or by erecting a closed-cycle cooling system, such as a natural draft wet cooling tower, which would transfer the heat from the cooling water to the air. Such towers were described by the Fourth Circuit Court of Appeals in Appalachian Power Co. v. Train, 545 F.2d 1351, 1357 (1976): Natural draft [wet] cooling towers are enormous concrete cylinders, which may be 350 to 550 feet in diameter and 300 to 600 feet tall. (The height is necessary to create the natural draft required to draw the air through the tower from bottom to top.) The bottom one-tenth of the tower is filled with slats and baffles to break up the water and expose a larger surface area to the air flow so as to increase evaporation. Warm water from the condenser is pumped to the top of the tower, there discharged, and cooled by moving air as it falls to the bottom. It is there collected and returned to the condenser, (material in parentheses from id. at n.19). The physical appearance of these towers is now widely familiar as a result of a tragic construction accident in Willow Island, West Virginia. According to the utilities, these towers would involve a capital cost in excess of $350 million to build and annual costs in excess of $100 million. The operation of the towers would consume the energy equivalent of about 720,000 barrels of oil each year. The cost of compliance with the provisions of the EPA permit would eventually be visited upon the customers and users of electric power in New York State, because the Power Authority of the State of New York is required to be self-supporting by the statute that created it, N.Y. Pub. Auth. Law §§ 1005(5) & 1010(7), and the remaining utilities are entitled to earn a fair return based in part on the “fair value of the property of the corporation used and useful” in the public service, N.Y. Pub. Serv. Law §§ 66(16) & 72. Each of the utilities filed timely requests for adjudicatory hearings before the EPA. 40 C.F.R. § 125.36. The provisions in the permits which the utilities wished to contest related primarily to the limitations on thermal discharges. The requests for hearings were granted, and notice of that fact was given to the public. 40 C.F.R. § 125.-36(c)(4). At a formal prehearing conference between the EPA and the utilities in February of 1977, the utilities raised the question whether the EPA still had jurisdiction to hold the adjudicatory hearings in light of (1) the EPA’s recent approval of New York State’s program for the administration of the NPDES permit program, and (2) the command in the statute that after a State program is approved the EPA must “suspend the issuance of permits.” 33 U.S.C. § 1342(c)(1). The utilities argued that DENCON had jurisdiction over their applications. An understanding of the utilities’ argument requires a familiarity with the provisions of the Water Pollution Control Act regarding the approval of State programs generally and the approval of New York’s program in particular. States compete with each other for industry, and the availability of cheap electric power promotes industry in any locality where it can be had. Natural forces of competition between States may have tended in the past to diminish the ardor of State and local officials for the elimination of water and air pollution caused by the generation of electricity. This makes federal supervision appropriate and, at times, necessary. Nevertheless, it is part of our philosophy of government that the government closest to the people should act in matters of importance in their daily lives to the greatest extent possible, to the exclusion of the federal administrator. Congress was acutely aware of these delicate issues affecting our concept of federalism when, on October 18, 1972, it passed § 402(c)(1) of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No.92-500, 86 Stat. 882, codified at 33 U.S.C. § 1342(c)(1), which provides: Not later than ninety days after the date on which a State has submitted a program . . . the Administrator shall suspend the issuance of permits unless he determines that the State permit program does not meet [legal requirements]. There can be no doubt that “[i]t is the policy of Congress that the States . implement the permit programs . . . .” Clean Water Act of 1977, Pub.L.No.95-217, § 26(b), 91 Stat. 1575, amending 33 U.S.C. § 1251(b). New York submitted its permit program to the EPA for approval in 1974. The EPA approved the program effective October 29, 1975. 40 Fed.Reg. 54462 (Nov. 24, 1975). The notice in the Federal Register stated that New York’s program was being administered in accordance with the provisions of a Memorandum of Agreement dated August 26, 1975, between the EPA and DEN-CON. The Memorandum provides that all adjudicatory hearings, hearings with respect to [33 U.S.C. § 1326 (thermal discharges)], citizen suits or other litigation concerning NPDES permits issued by the Regional Administrator prior to the date upon which the Administrator approves the State’s permit program will be defended by the Regional Administrator [of the EPA] .... The EPA and DENCON have interpreted this language and their own regulations to mean that “the EPA would retain jurisdiction over those cases in which adjudicatory hearings were pending at the time the state program went into force.” 444 F.Supp. at 630. The utilities argue that a permit does not “issue” until after the adjudicatory hearing has been concluded. By retaining jurisdiction, they argue, the EPA is violating the Act by refusing to “suspend the issuance of permits.” As is required by 40 C.F.R. § 125.36(m), the jurisdictional dispute was referred to the EPA’s Assistant Administrator for Enforcement and General Counsel, who, on July 29, 1977, rendered OGC Opinion Number 63, a Decision of the General Counsel on Matters of Law Pursuant to 40 C.F.R. § 125.36(m), which concluded that the EPA could retain jurisdiction over adjudicatory hearings without violating the statutory command to “suspend the issuance of permits” because the utilities’ permits were already “issued” under the EPA’s regulations. The General Counsel’s opinion was served on the utilities on August 11, 1977. On October 5,1977, the complaint in this action was filed in district court, and on November 7, 1977, a petition for review of the General Counsel’s opinion was filed in this Court under 33 U.S.C. § 1369(b)(1). The petition was apparently filed as a precaution because of uncertainty over whether § 1369(b)(1) deprived the district court of jurisdiction over this dispute. The petition was withdrawn by stipulation without prejudice to the filing of a supplemental petition as of November 7, after the conclusion of the action in district court. The district court dismissed the complaint for want of subject matter jurisdiction. The court held that the dispute fell within the ambit of § 1369(b)(1)(F), which gives the Courts of Appeals exclusive jurisdiction over review of agency action “in issuing or denying any [NPDES] permit.” In light of this determination, the district court declined to consider EPA’s alternative contentions that exclusive jurisdiction lay in the Courts of Appeals by virtue of subsection (D), which deals with agency action “in making any determination as to a State permit program.” The district court further declined to consider whether the dispute was ripe for judicial review or whether the EPA had “issued” a permit. The district court’s decision was rendered on February 10, 1978. The utilities filed their notice of appeal on February 17, and a supplemental petition for review was filed in this Court on February 21. JURISDICTION OF THE FEDERAL COURTS First we must resolve the threshold question of which federal court, if any, has jurisdiction to resolve the underlying dispute over whether the EPA or DENCON can process the utilities’ applications. The general grant of federal question jurisdiction found in 28 U.S.C. § 1331(a), as amended, Pub.L.No.94-574, 90 Stat. 2721 (1976), gives the district courts jurisdiction to review agency action. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). This action “arises under the . . . laws . of the United States” because the basis for the utilities’ cause of action is the EPA’s alleged violation of 33 U.S.C. § 1342(c)(1). The parties have not brought to our attention any preclusion-of-review statute which might bar such an action, nor are we aware of any. Compare Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). “[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); see Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). No such evidence is present in this case. This case, of course, does not involve a “final” agency action. But the facts here are both compelling and unusual — this is one of the rare cases in which a district court appropriately “interrupts” agency action on the ground that the agency is acting outside its statutory authority. Lone Star Cement Corporation v. F. T. C., 339 F.2d 505 (9th Cir. 1964); see concurring opinion of Judge Feinberg, infra. Accordingly, it would appear that the district court had jurisdiction to review the EPA’s decision to retain jurisdiction over the utilities’ applications. The district court dismissed the complaint on the ground that the dispute lay within the exclusive jurisdiction of the Courts of Appeals. It is clear that if the agency action sought to be reviewed falls within one of the six categories described in 33 U.S.C. § 1369(b)(1), the jurisdiction of the Courts of Appeals is exclusive. See Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976). It is also clear, however, that the six categories of § 1369(b)(1) do not cover all possible forms of agency action: the complexity and specificity of section [1369(b)(1)] in identifying what actions of EPA under the [Act] would be reviewable in the courts of appeals suggests that not all such actions are so reviewable. If Congress had so intended, it could have simply provided that all EPA action under the statute would be subject to review in the courts of appeals, rather than specifying particular actions and leaving out others. . . [I]t seems to us that when a jurisdictional statute sets forth with such specificity the actions of an administrative agency which may be reviewed in the courts of appeals, a litigant seeking such review of an action that is not specified bears a particularly heavy burden. Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517-18 (2d Cir. 1976). Section 1369(b)(1) arguably gives this Court exclusive jurisdiction over this dispute under subsection (D) or subsection (F). Subsection (D) deals with “[r]eview of the Administrator’s action . in making any determination as to a State permit program . . . .” In our view, it is fairly obvious that this provision was designed to give the Courts of Appeals exclusive jurisdiction over a dispute between a State or its citizens and the EPA over a decision by the EPA regarding the approval or disapproval of a State program. See, e. g., EPA v. State Water Resources Control Board, 426 U.S. 200, 210 & n.20, 96 S.Ct. 2022, 2027, 48 L.Ed.2d 578 (1976). We do not understand this section to apply to every dispute in which the EPA’s approval or disapproval may be relevant: it is limited to situations where the approval or disapproval itself is being challenged. Here the utilities are not challenging the EPA’s approval of New York’s program; on the contrary, they are pleased that it has been approved. The challenge is to the EPA’s decision with respect to its duty under § 1342(c)(1) to “suspend the issuance of permits.” The EPA’s approval of New York’s program is relevant to that decision because it occasioned the need to make the decision, but, in the absence of a challenge to the approval, subsection (D) does not dictate that review of the EPA decision to retain jurisdiction lies exclusively in the Courts of Appeals. Subsection (F) deals with “[r]eview of the Administrator’s action ... in issuing or denying any [NPDES] permit . . . .” .The district judge held that the utilities’ complaint came within this subsection. He reasoned that, after the administrative process has run its full course, the Courts of Appeals would have exclusive jurisdiction to review the EPA’s decision to issue or deny the permits. “[J]udicial review of an administrative ‘action,’ ” the judge explained, “encompasses review of the actor’s jurisdiction to take the action as well as review of the correctness of the substance of the action.” 444 F.Supp. at 631 n.12. Thus, he concluded, the exclusive jurisdiction of the Courts of Appeals encompassed review of the EPA’s decision to retain jurisdiction. This was necessary, the judge said, in order to avoid a wasteful system of “bifurcated” review under which the district courts and the Courts of Appeals would have jurisdiction to review the same issue. 444 F.Supp. at 632. We believe that the district judge was overly cautious in an apparent effort to avoid encroaching upon the jurisdiction of this Court. Although we agree that once the EPA’s action has run its full course we would have jurisdiction to review the EPA’s decision to retain jurisdiction as well as to review the merits, we do not agree that our jurisdiction over the former is at all times exclusive. If an administrative agency conducts proceedings over which it lacks jurisdiction, and the courts ultimately declare the proceedings a nullity, then the loss of time and expense to both the government and the defending party can be substantial. Thus, it may be desirable, at least where the proceedings are expected to be lengthy and the jurisdictional dispute is substantial, to have some form of judicial review of the jurisdictional issue at an early stage of the proceedings. However, if the Courts of Appeals have exclusive jurisdiction over the jurisdictional issue, and if the jurisdiction of the Courts of Appeals depends on the final decision by the agency to “issue or deny” a permit, then no review would be possible at a stage when a judicial decision could obviate waste and delay. The benefits which result from a system in which issues of law are resolved first by a district court and then by the Courts of Appeals are well known — particularly to the judges on the Courts of Appeals. Whether or not the Court of Appeals agrees with a decision rendered by a district court in any given case, it is invariably true that the primary review of the case by the lower court is of invaluable assistance. Thus, we are not inclined to favor an expansive construction of our own exclusive jurisdiction, because to do so would deprive us of the wisdom and sound judgment which district judges apply to questions we are eventually called upon to review. It is reasonable to assume that Congress intended us to have the help we need. Finally, we do not regard the prospect of “bifurcated” review as a significant problem. Subsection (F) makes it clear that when the EPA has made its final decision to “issue or deny” a permit, the Courts of Appeals are vested with exclusive jurisdiction over the dispute, including that element of the dispute that relates to the EPA’s jurisdiction to make the decision it made. Subsection (F) is obviously geared for very speedy resolution of disputes concerning a variety of EPA determinations. The short 90-day period in which to seek review accords with numerous other stringent deadlines in the Act intended to expedite the cleanup of the nation’s waters. See generally section 101 of the FWPCA. The fact that judicial review of the actions covered by § 1369(b)(1) is in the Court of Appeals in the first instance evidences a purpose, inter alia, to save procedural steps and time. After the EPA has completed its administrative proceeding and either denied or issued a permit, to allow challenges to its jurisdiction then to be heard first in the district court would merely cause duplication and delay. Thus, when there is Court of Appeals jurisdiction to determine the merits of an EPA action regarding a permit, including the question of EPA’s jurisdiction, district court jurisdiction no longer exists. We hold that our exclusive jurisdiction under subsection (F) is limited to a direct challenge to the merits of a decision to “issue or deny” a NPDES permit. Although our actual review of such agency action may encompass that agency’s jurisdiction to take the challenged action, we do not regard our jurisdiction to resolve such an issue as being at all times exclusive. To summarize, because the utilities’ complaint in this case did not challenge the EPA’s decision to approve New York’s permit program or the EPA’s decision to issue the permits, but challenged instead the EPA’s decision to retain jurisdiction over their permit applications, neither subsection (D) nor subsection (F) applies, and this Court does not have exclusive jurisdiction under § 1369(b)(1). For the same reason, we do not have original jurisdiction over the petition for review brought pursuant to that statute. Accordingly, the petition must be dismissed, and the judgment of the district court must be reversed. Ordinarily, our decision to reverse the district court’s decision to dismiss the complaint would require us to remand the case without passing on issues which the district court did not reach, for that is the “better practice.” Abbott Laboratories v. Gardner, supra, 387 U.S. at 156, 87 S.Ct. 1507. However, under 28 U.S.C. § 2106, this Court has broad power to make any disposition that is “just under the circumstances.” See generally Hormel v. Helvering, 312 U.S. 552, 556-59, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). The only issue involved in this case is one of law; there are no genuine issues of material fact. Both sides moved for summary judgment in the district court, and the issue has been fully briefed and argued both here and in the district court. As explained below, delay may affect not only the parties, but may also have a significant adverse impact on the public interest. Accordingly, it is just under the circumstances for this Court to consider issues not reached by the district court. RIPENESS The first issue that was not reached by the district court and which must be confronted by this Court is whether the EPA’s decision to retain jurisdiction over the utilities’ pending applications is ripe for judicial review at this stage of the proceedings. In Abbott Laboratories v. Gardner, supra, Justice Harlan explained that the basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an’ administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 387 U.S. at 148-49, 87 S.Ct. at 1515. The Court went on to say that the issue in that case was fit for judicial decision because it was a purely legal one involving congressional intent, rather than one involving factual determinations — both sides had moved for summary judgment, and no further administrative proceedings were contemplated. The issue was also fit for judicial decision because the agency action was “final agency action” within the meaning of § 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704 (“APA”) — a requirement that the Court said was to be interpreted in “a pragmatic way.” 387 U.S. at 149, 87 S.Ct. 1507. With respect to the potential hardship to the parties, the Court found that “the impact of the [agency action] upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” 387 U.S. at 152, 87 S.Ct. at 1517. This was so, the Court explained, because the agency action required an immediate choice between costly compliance or serious criminal and civil sanctions. 387 U.S. at 152-54, 87 S.Ct. 1507. Finally, the Court noted that judicial review in that case would be more likely to speed than to delay enforcement of the Federal Food, Drug, and Cosmetic Act, which the challenged agency action was designed to implement. 387 U.S. at 154-56, 87 S.Ct. 1507. An application of these principles here demonstrates that the ripeness doctrine does not bar immediate judicial review. The issue presented in this ease is a narrow legal one involving an interpretation of Congress’ command that the EPA “suspend the issuance of permits.” 33 U.S.C. § 1342(c)(1). No factual determinations or matters within the expertise of an administrative agency are involved. Both sides have recognized this by cross-moving for summary judgment in the district court. The agency action being challenged here is also “final agency action” within the meaning of § 10(c) of the APA. The challenged agency action is embodied in the General Counsel’s decision. The EPA regulation pursuant to which that decision was made specifically provides: The decision of the Assistant Administrator for Enforcement and General Counsel shall be final with respect to each referred issue of law as it relates to the particular permit in question and shall be relied upon by the Regional Administrator in rendering the initial decision. 40 C.F.R. § 125.36(m)(4) (emphasis added). The regulations do appear to allow for some limited administrative review of the General Counsel’s decision. After the adjudicatory hearings are concluded, on review of the initial decision of the Regional Administrator of the EPA, the decision of General Counsel can be upset if it was “clearly erroneous” or if it involved an important policy question which the Administrator, “in his discretion,” decides to review. 40 C.F.R. § 125.36(m)(3). As we explained above, however, the issue here is a purely legal one and does not involve a question of policy to be resolved in the exercise of the Administrator’s discretion. Furthermore, the EPA’s vigorous defense of the General Counsel’s decision shows that the prospect that it will be upset by the Administrator on the ground that it was clearly erroneous is not a realistic possibility. Given the “pragmatic” approach favored by the Supreme Court in Abbott Laboratories v. Gardner, supra, 387 U.S. at 149, 87 S.Ct. 1507, the finality of the agency’s action is not open to serious doubt. In this Circuit, the “hardship” determination required by Abbott Laboratories v. Gardner,- supra, appears to have become closely associated with the question whether the challenged agency action is one “for which there is no other adequate remedy in a court” under § 10(c) of the APA, 5 U.S.C. § 704. See Pepsico, Inc. v. FTC, 472 F.2d 179, 185-86 & n.7 (2d Cir. 1972), cert. denied, 414 U.S. 876, 94 S.Ct. 44, 38 L.Ed.2d 122 (1973). See also Association of National Advertisers, Inc. v. FTC, 565 F.2d 237, 239 (2d Cir. 1977); Natural Resources Defense Council v. Nuclear Regulatory Commission, 539 F.2d 824, 836-38 (2d Cir. 1976), vacated on other grounds sub nom. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 434 U.S. 1030, 98 S.Ct. 1600, 54 L.Ed.2d 777 (1978); Niagara Mohawk Power Corp. v. FPC, 538 F.2d 966, 970 (2d Cir. 1976); National Ornament & Electric Light Christmas Association v. Consumer Product Safety Commission, 526 F.2d 1368, 1372-73 (2d Cir. 1975); Sterling Drug, Inc. v. Weinberger, 509 F.2d 1236, 1239 (2d Cir. 1975); Ecology Action v. Atomic Energy Commission, 492 F.2d 998, 1000-02 (2d Cir. 1974). The same thing has happened in other Circuits. See e. g., Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119, 1123-24 (4th Cir. 1977); New York Stock Exchange v. Bloom, 562 F.2d 736, 740-43 (D.C. Cir. 1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978). This is not surprising, for the adequacy of judicial review after the agency proceedings have concluded necessarily depends on the extent of the hardship that will result if immediate review is denied. One type of hardship that is often claimed in order to justify immediate review is the type involved in Abbott Laboratories v. Gardner, supra, where the challenging party is faced with a Hobson’s choice between costly compliance with new regulations or serious sanctions for noncompliance. Another type is the type involved here, where the challenging party argues that the agency is acting without jurisdiction or in violation of a specific limitation on its power. See McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1962); Leedom v. Kyne, supra, 358 U.S. at 184, 79 S.Ct. 180. See also Gardner v. Toilet Goods Association, 387 U.S. 167, 176, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967) (Fortas, J., concurring and dissenting); Coca-Cola Co. v. FTC, 475 F.2d 299, 303 (5th Cir.), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973). In such cases, the hardship arises in part because the challenging party is being required to defend a proceeding that may later be declared a nullity. Standing alone, however, this is not enough to justify immediate review. It is well-established that the mere trouble and expense of defending an administrative proceeding is insufficient to warrant judicial review of the agency’s action prior to the conclusion of the administrative proceeding. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-52, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Other factors must be present in addition to this injury before judicial review will be considered appropriate. Such other factors may include the implications of the agency action on important public interests, e. g., McCulloch v. Sociedad Nacional, supra, 372 U.S. at 17, 83 S.Ct. 671, the impact of the action on the industry involved, e. g., Natural Resources Defense Council v. Nuclear Regulatory Commission, supra, 539 F.2d at 837, the disruptive effect of a subsequent declaration that prior proceedings were defective or void and that new proceedings must be held, e. g., Harlem Valley Transportation Association v. Stafford, 500 F.2d 328, 335 (2d Cir. 1974); cf. American Communications Association v. United States, 298 F.2d 648, 650 (2d Cir. 1962), the duplication and waste of putting off a decision which must inevitably be made by the courts, e. g., Bristol-Myers Co. v. FTC, 469 F.2d 1116, 1119 (2d Cir. 1972) (Mansfield, J., concurring), and the extent of the waste of governmental resources, Pepsico, Inc. v. FTC, supra, 472 F.2d at 187. In this case, more is a,t stake than the mere trouble and expense to which the utilities will be put as a result of defending an adjudicatory hearing that may be a nullity. The parties are operating under a congressionally imposed deadline. Assuming, as is likely, that the EPA can revise its guideline regulations for thermal pollution in light of Appalachian Power Co. v. Train, supra, 545 F.2d 1351, by July 1, 1981, the statute provides that the guidelines must be met by July 1, 1984. 33 U.S.C. § 1311(b)(2)(F). If this deadline is to be met, all adjudicatory hearings and administrative and judicial review must be concluded sufficiently in advance of the deadline to allow time for the construction of any cooling towers that may be necessary. If the utilities are required to wait until the conclusion of the EPA proceedings, which are expected to take several years, only to have this Court hold that the EPA lacked jurisdiction and that new proceedings must be conducted before DENCON, the likelihood that the deadline would be met would be reduced significantly. The public interest in avoiding the enormous waste of resources that would result if the EPA’s proceedings are declared to be a nullity, the public interest in compliance with Congress’ deadline, and the probability that this Court will inevitably have to resolve the issue presented all suggest that immediate judicial review is appropriate. The EPA argues that the utilities needn’t be overly concerned with their ability to comply with the deadline because a good faith effort to comply “could be taken into account in any EPA enforcement action.” Brief at 39. Even in the unlikely event that the utilities found any comfort in that assurance, we would still find it unpersuasive, for it appears to have been offered solely for the purpose of thwarting the utilities’ attempt at judicial review, without regard to the public interest embodied in the deadline. After all, the permit provisions to which the utilities object are stayed pending the Administrator’s final decision, and therefore the utilities will continue to discharge pollution at present levels until this matter is resolved and pollution control devices can be installed. Accordingly, we hold that the circumstances of this case make immediate judicial review appropriate. SUSPENSION OF THE FEDERAL PERMIT PROGRAM We now address the other issue, not reached by the district court but which must be decided here, namely, whether the EPA or DENCON has jurisdiction over the utilities’ pending applications. Under 33 U.S.C. § 1342(c)(1), when a State permit program is approved by the EPA, the EPA must “suspend the issuance of permits” so that the State can take over. Under the EPA’s regulations, the utilities’ permits are now issued and effective, and the utilities are subject to all of the uncontested provisions of the permits. 40 C.F.R. § 125.35(c) & (d). The effect of the contested provisions of the permits has been stayed pending final agency action. 40 C.F.R. § 125.-35(d)(2). Because the permits have issued, the EPA believes that it may handle any adjudicatory hearings or other litigation concerning the contested provisions without violating Congress’ command that the EPA “suspend the issuance of permits.” The principal issue before us, therefore, is whether the EPA’s construction of the term “issuance” in § 1342(c)(1) is “sufficiently reasonable to preclude the [federal courts] from substituting [their] judgment for that of the Agency.” Train v. Natural Resources Defense Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975), quoted in E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-35, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). The EPA argues that its interpretation is reasonable because it “allows for the smooth transition from federal to state permit program.” Brief at 30. A “[s]udden transfer . . . could significantly disrupt the State program,” we are told, because DENCON is not prepared to bear the additional responsibilities that the hearings would entail. Id. & n.**. Inasmuch as the EPA is familiar with the permits and is prepared for the hearings, and DENCON is not, a sudden transfer could result in waste, duplication and delay. Id. at 30-31. The EPA points out that, in view of Congress’ obvious concern for the prompt enforcement of the Act — evidenced primarily by its enactment of deadlines for compliance, 33 U.S.C. § 1311(b) — we should not lightly discard an efficient transitional program agreed upon by both State and Federal authorities. We find these arguments highly persuasive. The EPA’s interpretation is challenged by the utilities on two grounds. The first is based on 33 U.S.C. § 1342(a)(1), which provides that “the Administrator may, after opportunity for public hearing, issue a permit . . . .” The utilities argue that the hearing to which the statute refers is the adjudicatory hearing. Because the adjudicatory hearing has not been concluded, it is argued, the EPA lacks the authority to issue a permit. Because no permit has lawfully issued, the reasoning continues, further proceedings before the EPA necessarily contemplate issuance of the permits by the EPA at the conclusion of the hearings. Because future issuance would violate Congress’ command to “suspend the issuance of permits,” the utilities maintain that the EPA’s interpretation must be inconsistent with the statute. We find this argument unpersuasive. Under the EPA’s interpretation, the utilities’ permits have issued only to the extent that they have been uncontested. To the extent that they have been issued, therefore, a full opportunity for hearing has been afforded, and no hearing has been sought. The purpose of § 1342(a)(1) is not to postpone the issuance of uncontested portions of a NPDES permit, it is to afford interested parties an opportunity to challenge permit provisions which might adversely affect them. The EPA’s interpretation — under which uncontested provisions become part of an issued permit and contested provisions are stayed — does not conflict with the purpose of the statute, because the permits, as issued, consist solely of provisions to which no one has any objection. The second ground on which the EPA’s interpretation is challenged is based on the general statement of policy found in 33 U.S.C. § 1251(b), which provides: It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . It is the policy of Congress that the States . . . implement the permit programs . So strong was Congress’ intent to put the States in control of the permit programs, we are told, that § 1342(c)(1) must be interpreted in such a way as to require EPA to “suspend” — to terminate — its administrative processes of issuing permits, without regard to where an individual permit may be in the issuing process, because, in order to achieve the policy that States administer the permit program, Congress deliberately provided that all remaining steps must be completed by the state. Brief at 25-26. In other words, the utilities argue that Congress decided that the potential for inefficiency would be preferable to continued administration by the EPA. The flaw in this argument is that it attributes undue significance to a single congressional policy and in so doing ignores the overall purpose of the Act. The “objective” of the Act, as stated in the first sentence of the first section, “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 1251(a). In subsection (b) of § 1251, Congress states one of several “policies” in connection with the attainment of this “objective.” Seen in its proper perspective, therefore, State implementation of the permit programs is merely the means which Congress prefers to use in order to attain a specific end, i. e., unpolluted water. Thus, the issue is not whether to effectuate the policy of State implementation, it is rather how best to effectuate it without sacrificing the prompt and efficient accomplishment of the Act’s overall objective. While the utilities are correct in arguing that the EPA’s interpretation sacrifices the policy of State implementation, they cannot avoid the fact that their own interpretation produces duplication, waste and delay, all of which undermine the Act’s objective. In our judgment, the EPA’s interpretation is simply the more reasonable of the two. Accordingly, it will be upheld. The petition for review is dismissed, the judgment of the district court is reversed, and the cause is remanded with instructions to enter summary judgment in favor of the defendants-appellees. . Central Hudson Gas & Electric Corporation, Consolidated Edison Company of New York, Inc., Orange and Rockland Utilities, Inc. . The Power Authority of the State of New York is a corporate municipal instrumentality and a political subdivision of the State; it was created by statute. Pub. Auth. Law § 1002. . Injunctive relief is also sought. . The Hudson River Fishermen’s Association, an organization of commercial and sports fishermen interested in the preservation of the fisheries of the Hudson River, intervened in the district court action with the permission of the district court and in the original petition for review in this Court with the permission of this Court. . The power plants involved are the Roseton Generating Station and the Bowline Point Generating Station, which are oil-fired, and the Indian Point Units Numbered 2 and 3, which are nuclear facilities. . In Appalachian Power Co. v. Train, 545 F.2d 1351 (1976), the Fourth Circuit set aside the EPA’s guideline regulations relating to thermal discharges from power plants such as those involved here. We are informed that, pending promulgation of new regulations, the Administrator is proceeding under the general authority of 33 U.S.C. § 1342(a) to issue a permit on such terms as are necessary to carry out the provisions of the Act. The permits involved here were based on the old regulations. We have no reason to believe that the promulgation of new regulations will require material changes in the terms of the permits. . The effect of the EPA’s grant of the utilities’ requests for adjudicatory hearings with respect to the contested provisions is fairly clear under the EPA’s regulations. The uncontested provisions of the proposed permit are considered “issued and effective,” and they are binding on the utilities; the effect of the contested provisions is stayed and the provisions are considered non-final for purposes of judicial review, pending the outcome of the adjudicatory hearings. 40 C.F.R. § 125.35(c) & (d). Apparently, the utilities are now operating under the authority of the permits. . The statute provides as follows: Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. . See Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980, 983 (1975). . See note 6, supra. . Declaratory relief is all that is warranted under present circumstances.

Central Hudson Gas & Electric Corp. v. United States Environmental Protection Agency

FEINBERG, Circuit Judge (concurring): Judge Meskill’s opinion concludes that the district court had jurisdiction in this case and, on the merits, holds that the United States Environmental Protection Agency (EPA), not the New York State Department of Environmental Conservation (DENCON), has jurisdiction over petitioners’ pending applications to discharge pollutants into the Hudson River. I concur in this result. EPA does make a strong argument that the utilities’ attack on the continuing exercise of its jurisdiction is really a belated challenge to a “determination as to a State permit program” within the meaning of section 509(b)(1)(D) of the Federal Water Pollution Control Act (FWPCA), and hence cognizable exclusively in the courts of appeals. Nevertheless, on these unusual facts, I have no real quarrel with holding that the utilities are simply challenging EPA’s jurisdiction over their particular applications rather than attacking the terms of EPA’s approval of the State permit program. In this case, where the State permit program plan provides for the EPA jurisdiction exercised here, the distinction is a purely semantic one. Either characterization is reasonable. If we accept the one offered by EPA, along with the corollary that section 509(b)(1)(D) provides the exclusive route here for judicial review, the utilities’ lawsuit would be time-barred because it was not brought within that section’s 90-day time period. This would leave undecided important jurisdictional issues, surely an unfortunate result. I agree with Judge Meskill that the district court had jurisdiction to decide whether EPA could properly exercise jurisdiction in this case. The reason I file this concurring opinion is to emphasize the narrowness of district court power to review, under 28 U.S.C. § 1331(a), the exercise of agency jurisdiction prior to a final order. It is true, as Judge Meskill states, that there is a strong presumption that Congress intended there to be judicial review of agency actions. See Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), pointing to congressional expansion of section 1331(a) jurisdiction by eliminating the jurisdictional amount requirement in suits brought against federal agencies. See also Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517 n.10 (2d Cir. 1976). However, that broad presumption applies only to specific final agency determinations on the merits. Here the issue is interruption of agency action by a district court at an intermediate stage on the ground that the agency is acting beyond its statutory authority. In this situation, “the long settled rule” is that review of agency jurisdiction must await exhaustion of agency proceedings when the agency determination on the merits will also be subject to review. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The policy of refraining from premature interference with the administrative means by which Congress sought to solve the problem of water pollution was not implicated by the problem posed in Bethlehem Steel Corp. v. EPA, supra. While the Myers principle has not been applied as rigidly as language in that case might suggest, see Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (allowing district court review of NLRB action taken in direct contravention of statutory limitations, prior to completion of agency proceedings); 3 Davis, Administrative Law Treatise §§ 20.02, 20.-03, at 57-74 (1958), the exception to the policy of exhaustion has been characterized as “limited.” McCulloch v. Sociedad Na-cional, 372 U.S. 10, 16, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). See also Herald Company v. Vincent, 392 F.2d 354, 356-57 (2d Cir. 1968). Professor Davis suggests that there are three key factors in determining whether there should be preliminary district court review of agency jurisdiction: “extent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question of jurisdiction.” 3 Davis, Administrative Law Treatise § 20.03 at 69 (1958). This tripartite test has been adopted by the Ninth Circuit, Lone Star Cement Corporation v. F. T. C., 339 F.2d 505 (1964) and elsewhere, see cases cited in Davis, Administrative Law Treatise § 20.03, at 653 (Supp.1970), and is met in this ease. With regard to the first factor, Judge Meskill properly emphasizes the difficulty in meeting the congressionally imposed deadline, if EPA’s adjudicatory hearing is ultimately declared a nullity. He further points out the potential prejudice to the public interest in expeditious cleanup of the nation’s waters if implementation of conservation measures must await a new round of proceedings by DENCON. As for the third factor, the validity of EPA jurisdiction in this case turns solely on a question of statutory construction, whether or not the transitional terms of the State permit program violate section 402(c)(1) of the FWPCA. There is no reason to believe that this type of question, traditionally the province of the judiciary, in any way turns here on “specialized administrative understanding.” The second factor’s application here is less clear. While it is apparent to two of us that EPA, not DENCON, has jurisdiction, Judge Brieant is in disagreement. Nonetheless, given the hardship to the utilities, the potential damage to the public interest in a clean environment, and the undesirability of leaving undecided the important issue of whether EPA or DEN-CON has jurisdiction over all the adjudicatory hearings pending on October 29, 1975, the factor of lack of clarity on the jurisdiction of EPA loses significance. Hence, I agree that there is district court jurisdiction to review EPA’s exercise of jurisdiction in the ongoing administrative proceeding. I also agree with Judge Meskill’s disposition on the merits rejecting the utilities’ claim and upholding EPA jurisdiction in this case. Congress simply could not have intended the wasteful and awkward transition that the utilities believe is required here. See generally section 101(f) of the FWPCA, declaring one purpose to be the avoidance of duplication and delay at all levels of government. . The question of which court is the proper one in which to seek review of EPA actions is an extraordinarily complex one. See Currie, Judicial Review Under Federal Pollution Laws, 62 Ia.L.Rev. 1221 (1977), urging congressional reform.

Central Hudson Gas & Electric Corp. v. United States Environmental Protection Agency

BRIEANT, District Judge (concurring, and dissenting in part): I am in complete agreement with Judge Meskill’s fine opinion to the extent it decides that the district court had subject matter jurisdiction, and this Court does not have exclusive original jurisdiction, but appellate jurisdiction only. I also agree that the dispute is ripe for judicial review. I respectfully dissent from the majority’s position on the merits, which seems simply to be that Congress was unwise in enactment of 33 U.S.C. § 1342(e)(1), which requires the cessation of EPA’s permit issuing function 90 days after a state permit program has been approved. The majority’s reasoning is purely pragmatic. It holds “while the utilities are correct in arguing that the EPA’s interpretation sacrifices the [Congressional] policy of state implementation, they cannot avoid the fact that their own interpretation produces duplication, waste and delay, all of which undermine the Act’s objective. In our judgment the EPA’s interpretation is simply the more reasonable of the two.” To the same effect is the statement in the concurring opinion that “Congress simply could not have intended the wasteful and awkward transition that the utilities believed is required here.” The EPA’s interpretation here, accepted by the majority, may provide a reasonable and expeditious way of proceeding. It may avoid possible problems of duplication and delay, which, to me, seem avoidable. Not even arguably can this result be said to reflect the plain meaning of the language of the statute, nor the expressed intention of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972. Vermont Yankee Nuclear Power Corp. v. Natural Resources Def. Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). After determining that continued EPA administration would be more efficient, and serve the public interest, the majority phrases the issue here as “whether the EPA’s construction of the term ‘issuance’ in § 1342(c)(1) is ‘sufficiently reasonable to preclude the [federal court] from substituting [its] judgment for that of the Agency’,” quoting Train v. Natural Resources Def. Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975) and E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-35, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). In both of those cases, however, the issue was whether an agency interpretation, reasonably flowing from and arguably included within the scope of the statute and its legislative history, was sufficiently reasonable to preclude the courts from substituting their own judgment as to its correctness for that of the agency. Of course an agency’s interpretation of its own statutory authority, especially where that statutory base is as complex as present here, is entitled to great weight in the courts. In this case, however, the majority goes considerably beyond an application of this truism, and, acting contrary to the relevant legislative history, reaches a result based solely on the perceived convenience of the results obtained. Under EPA Regulations, a permit is “issued” by the Administrator when that official, after allowing an opportunity for a public (“town meeting”) hearing, makes his “Final Determination.” 40 C.F.R. § 125.35. The majority emphasizes the fact that all uncontested provisions of permits attached to such Final Determinations are enforceable, and completely “issued” from the date of the Administrator’s determination. I am in complete agreement with that proposition. The problem here, however, arises from the contested provisions of the permits. EPA Regulations provide that if a party requests an adjudicatory hearing, the effect of contested provisions is stayed pending final agency action. 40 C.F.R. § 125.35(d)(2). Despite the absence of an adjudicatory hearing, the Regulations consider such contested provisions to have been “issued” from the date of the Administrator’s determination. These Regulations were promulgated by EPA in July 1974, see 39 Fed.Reg. 27078, et seq. (July 24, 1974), considerably before judicial decisions extended the protection of the Administrative Procedure Act to proceedings under § 402(a)(1) of the Act, 33 U.S.C. § 1342(a)(1), which authorized issuance of NPDES permits. The Regulations are thus initially based on a misconstruction of their statutory foundations. The contested provisions of NPDES permits may not now be “issued” without an adjudicatory hearing on the record, and such a hearing has not yet been held in this case. The Preamble to the very Regulations relied on here by EPA recognizes this fact: “If a request for an adjudicatory hearing is granted . . . the provisions in the proposed permit that are contested shall not be issued and shall not be [final for purposes of review].” 39 Fed.Reg. 27078 (July 24, 1974) (emphasis added). Thus, it is clear that the contested provisions of these permits have never been “issued” for purposes of § 402(a)(1) of the Act. Agency interpretations to the contrary fly in the face of the statute. It is clear, moreover, that Congress intended the word “issue” or its variants to have the same meaning in § 402(c)(1) and § 509(b)(1)(F) as it does in § 402(a)(1), namely, with regard to contested provisions of NPDES permits, “issuance” would occur upon promulgation of the permits after the full panoply of an adjudicatory hearing on the record. Until that point is reached, the Administrator, once having approved a state’s application, must surrender control to the state within ninety days thereafter. The statute says he “shall suspend the issuance of permits” under the Act. 33 U.S.C. § 1342(c)(1) (emphasis added). “[W]hen words of familiar usage are used in a statute they should be understood in their ordinary sense.” S. & S. Realty Corp. v. Kleer-Vu Industries, Inc., 575 F.2d 1040 (2d Cir. 1978). The majority's interpretation of the statute offends against this fundamental rule, and also imputes to Congress the unlikely intention of defining “issue” and its variants when used with respect to permits, differently in different sections of the same Act. When, as here, a statute is plain and unambiguous on its face, resort to legislative history is uncalled for. See Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). However, the legislative history of the Federal Water Pollution Control Act Amendments of 1972 makes it absolutely clear that Congress intended the result contended for by the Utilities. The Act itself states that “[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . It is the policy of the Congress that the States . . . implement the permit programs under sections 1342 and 1344 of this title.” 33 U.S.C. § 1251(b) (1977). It is thus clear, despite the majority’s assertions to the contrary, that Congress has not only determined the goal to be achieved by the Amendments of 1972, but also specified the best means to effectuate that goal, namely, the prompt organization and administration of control programs on the state level, and prompt transfer of power. Congress intended that the states “be given maximum responsibility for the permit system and [that] the EPA’s review authority be restricted as much as [is] consistent with its overall responsibility for assuring attainment of national goals.” EPA v. California, 426 U.S. 200, 224-25, 96 S.Ct. 2022, 2043, 48 L.Ed.2d 578 n. 39 (1976). The legislative history confirms that Congress intended EPA, once it approved the permit program of the individual state, should cease forthwith its own issuance of permits under the federal program. The House Report, for example, states: “Subsection [402] (c)(1) provides that not later than 90 days after the date on which a State has submitted a program pursuant to subsection (b), the Administrator shall suspend the Federal permit program authorized under subsection [402] (a), unless he finds the proposed State program does not satisfy the requirements issued under 304(h)(2).” A History of the Federal Water Pollution Control Act Amendments of 1972, vol. 2, at 814 (emphasis added). The Senate Report is equally clear: “[A]fter a State 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.’’ Id. at 1489 (emphasis added). Congressman Roe reiterated the same consensus when he stated on the floor that “[n]ot later than 90 days after receiving the submittal the State would take over the program unless the Administrator found it did not satisfy the requirements.” Id., vol. 1, at 428. And finally, the legislative history makes it clear that this transfer of power to the states was not to be piecemeal or at the discretion of the Administrator, as urged by EPA here. This was recognized by EPA’s own General Counsel in OGC No. 63, at 10-11: “I am not unmindful of various statements in the legislative history of the FWPCA indicating that Congress did not intend for the Administrator to delegate to the States ‘bits, pieces, categories or other parts’ of a permit program.” 2 Leg. Hist, at 261. All of this does not deny the continuing role of EPA in effectuating national policies. The statutory scheme does contemplate some division of responsibility between state and federal authorities for the administration of the Act. The states, for example, are under no compulsion to choose to administer their own programs, and EPA has the authority to withdraw approval of a state program in the event it is not administered “in accordance with the requirements” of the Act. 33 U.S.C. § 1342(c)(3). There is thus nothing untoward in the fact that, if we were to hold that EPA lacked the authority to continue with the adjudication of the contested portions of these permits, EPA would continue to administer the uncontested provisions of the permits it had already “issued,” while DENCON would assume authority over the issuance of the contested remainder. EPA has raised before this Court the specter of confusion, wasted effort and needless duplication which it claims would follow if we required it to suspend its issuance of permits under § 402(a)(1). The specter in the actual case before us is nothing more than that: a specter. While EPA may have made “preparations” for the adjudicatory hearing necessary before the permits can be issued, no evidentiary hearings have in fact been held yet, and only the most preliminary of proceedings have taken place. Here, as in many situations arising under the Act, coordination between state and federal authorities would go a long way towards obviating any such confusion. Indeed, such coordination has been described as “imperative.” See Pacific Legal Foundation v. Costle, 586 F.2d 650 (9th Cir., decided August 9, 1978). In any event, Congress has spoken in the matter, and in performing its legislative function has already weighed the possibility of transitional inconvenience against the benefits of Home Rule. “Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978). EPA’s attempt to perpetuate its own authority in the matter by requiring a Memorandum of Agreement to that effect from the State of New York as a condition of approving the state program, and DEN-CON’s willingness to comply with EPA’s imposition in order to avoid facing what is obviously a very sensitive situation are both understandable. The scheme so concocted to regulate the transfer of power to the state is a rational one. It does not, however, present the procedure envisioned and required by Congress, and violates the intent of Congress to transfer power to the states, fully and promptly. Indeed, the majority does not rely on it. Any suggestion that the executive branch of New York State government lacks the will, the expertise or the resources to deal with these permits is on its face incredible, and not substantiated by competent evidence before the district court. In fact, long before the permits in this case could have been finally adjudicated by EPA, with ultimate review in this Court, DENCON doubtless will have heard and decided applications for at least one and perhaps other similar permits for other generating stations presently planned for construction in the Hudson River Valley. We thus will be confronted with exactly the piecemeal type of administration of the pollution problem in the river, which was rejected by Congress. The possibility of conflicting and different results is likely. The majority recognizes, as indeed it must, the great importance of this entire question. As a nation, we are committed to the elimination of pollution of our national waterways in accordance with the highest available technology. Pendency of the thermal pollution issue has prevented solution of the lesser included problem of the fish kills, damaging valuable Hudson River fisheries by the present, temporary, once-through cooling systems. The Hudson River Valley is a national treasure. It has been referred to as the Rhine of America. Our Court has written: “The highlands and gorge of the Hudson offer one of the finest pieces of river scenery in the world. The great German traveler Baedeker called it ‘finer than the Rhine’.” Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965). With the erection of the giant cooling towers described in this record, the Hudson River will no longer be the Rhine of America, but rather the Nile of America, with these towers substituting for pyramids, and having approximately the same relative size. Appellants’ plants are located where the river water is saline. The cooling towers will release continuous heated water vapor carrying sublimated salt, to be precipitated later on the farms, orchards and homes in the Hudson Valley. The energy cost in operating the cooling towers is substantial and continuous, and the cost to electric rate payers has been duly noted by the majority. If, in accordance with law, such burdens must be imposed upon the Hudson River Valley and its people, it should be done as Congress intended it to be done, after an adjudication by state government, rather than by remote administrators in Washington. I would reverse the judgment of the district court and remand with instructions to enter summary judgment in favor of appellants granting declaratory relief and providing that jurisdiction over the contested conditions is vested in the Department of Environmental Conservation of the State of New York. . I also agree with the principle set forth in Judge Feinberg’s concurring opinion, implicit also in the majority opinion: only in a rare case is interruption of agency action by a district court appropriate on the ground that the agency is acting beyond its statutory authority. Judge Feinberg also perceives the instant case to be such a case where interruption is proper, and I concur. . See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977); Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977). . PASNY intends to construct a new nuclear generating station at Cementon, New York. . The Great Pyramid at Ghizeh on the Nile is 481 feet in height. The six cooling towers on the Hudson to be required here would be between 390 and 560 feet in height, comparable to a skyscraper 40 to 45 stories high, with an annual energy cost to operate equivalent to burning about 720,000 barrels of oil. . The Hudson River is a tidal estuary, having a mean tidal range of 4'A feet at Albany, New York. Depending on the tides, wind, and level of fresh water flow, the salt wedge intrudes from the ocean, sometimes as far as Pough-keepsie, New York, which lies 65 miles upstream from the Battery. Indian Point, Bowline Point and Roseton, locations of the generating stations, all lie downstream from Pough-keepsie.

United States v. Texas Pipe Line Co.

LOGAN, Circuit Judge. This is an appeal from summary judgment in favor of the United States in its action against The Texas Pipe Line Company (the Company) to collect a $2,500 civil penalty assessed by the United States Coast Guard under the Federal Water Pollution Control Act (FWPCA or the Act), 33 U.S.C. § 1251, et seq. The issues on appeal are whether the discharge of oil involved was into “navigable waters” within the meaning of the FWPCA, and if so, whether the penalty was excessive. The facts are undisputed. The Company’s pipeline running through a farm in Atoka County; Oklahoma, was struck by a bulldozer operator working for the farmer-owner of the land. Before the flow could be shut off, approximately 600 barrels of oil escaped. The oil spilled into an unnamed tributary of Caney Creek, which discharges into Clear Boggy Creek, itself a tributary of the Red River. The record shows there was a small flow of water in the unnamed tributary at the time of the spill; there is no evidence that the other streams were or were not flowing. The Company took prompt action both to report the spill and to clean it up, utilizing a temporary dam it built on the unnamed tributary. Some 510 barrels of the oil were recovered. The Company was not at fault in any way; for its speedy action and cooperation the Company was commended by Coast Guard officials charged with responsibility under the FWPCA. Nonetheless, a $2,500 civil penalty was assessed against the Company under 33 U.S.C. § 1321(b)(6). The Company contends that since the spill was confined to the unnamed tributary, no “navigable waters” within the meaning of the FWPCA were involved. See 33 U.S.C. § 1362(7). But we held in United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979), that Congress did not in this Act use the term “navigable waters” in the traditional sense; Congress intended to extend the coverage of the Act as far as permissible under the Commerce Clause. We there held the Act applied to discharges into a stream entirely confined to one county wherein two dams collected all of the stream flow. While there is nothing in this record to show the effect on interstate commerce of this unnamed tributary, without question it is within the intended coverage of the FWPCA. It was flowing a small amount of water at the time of the spill. Whether or not the flow continued into the Red River at that time, it obviously would during significant rainfall. The intent of the Act was to cover all tributaries to waters like the Red River. See United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974). It makes no difference that a stream was or was not at the time of the spill discharging water continuously into a river navigable in the traditional sense. With respect to the penalty assessed, we sympathize with the Company. Despite its lack of fault and prompt actions to clean up the spill, it was assessed a $2,500 civil penalty. Still we must uphold the penalty. It is admitted the statute does not require fault to support the penalty. See Ward v. Coleman, 598 F.2d 1187, 1191 (10th Cir.), cert. granted,-U.S.-, 100 S.Ct. 291, 62 L.Ed.2d 305 (1979). The assessments are deposited in a revolving fund to pay the costs of administering the Act and to finance the cleanup of oil spills when the costs are not otherwise recoverable. Id.; 33 U.S.C. § 1321(k). In determining the amount of the penalty the officials are to consider “the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation . . . .” 33 U.S.C. § 1321(b)(6). The officer who assessed the penalty declared that he based its size primarily upon the amount of the spill, which he regarded as a large one, and that he assessed the penalty at only half of the maximum permitted under the Act because there was no fault on the part of the Company. The Company was given an opportunity for a hearing and to comment on its size and whether the $2,500 would impair its ability to do business. It responded substantially to the effect that it could afford the penalty; it is a wholly-owned subsidiary of Texaco, Inc. On the record as outlined above it appears that all factors required by the Act were taken into account in determining the size of the penalty. Unless we can say as a matter of law that the Coast Guard must assess only a nominal penalty when there is no fault, we must affirm. Considering the costs to the government of policing any oil spill, the elimination in the FWCPA of fault as a prerequisite to liability and the clear specification of items to be considered in determining the size of the penalty, we cannot say $2,500 exceeds the authority of the agency charged with the administration of the Act. See United States v. Beatty, Inc., 401 F.Supp. 1040 (W.D.Ky.1975) ($2,000 fine upheld, spill of 5 to 15 gallons of oil). Affirmed.

United States v. Texas Pipe Line Co.

BARRETT, Circuit Judge, concurring in part and dissenting in part: I concur in that part of the majority opinion holding that the discharge of oil involved in this case was into “navigable waters” within the meaning of the Act. I dissent from that part of the opinion upholding the penalty assessed in amount of $2,500.00. I do not suggest that such a penalty cannot be supported based on the facts and circumstances of this case, but I do suggest that if such be true the Coast Guard has failed to set forth adequate rationale. The simple statements that the agency is empowered to assess a penalty between $1.00 and $5,000.00 based on “the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation” are not standards from which a reviewing court can measure whether the administrative agency has acted arbitrarily, capriciously and unreasonably. The fact that the “no fault” spill in this case was large is about the only substantial finding made by the assessing officer. That fact works to the advantage of the Company in that the record is clear that it did an excellent, expeditious job of cleaning up the spill, meriting special commendation from the Coast Guard. Thus, it would appear that the sole basis for the assessment relates to the need for collection of funds in the nature of the penalties in order to meet the costs of administering the Act. 33 U.S.C.A. § 1321(k). If this be the basis for the penalty, the reviewing courts should be so advised. I would send the case back to the Coast Guard with instructions that it set forth the precise basis for the penalty assessment.

United States v. Earth Sciences, Inc.

LOGAN, Circuit Judge. This is an appeal from a district court order dismissing a suit brought by the United States against Earth Sciences, Inc., (Earth Sciences) under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., specifically § 1311. The government appeals the district court’s conclusion that the FWPCA exempts all mining activities from point sources regulation. Earth Sciences cross-appeals, and defends the trial court’s decision on the alternative grounds that Earth Sciences’ overflows were not from a “point source,” the stream involved in this case was not a “navigable water” under the Act, no person made a “discharge” of the pollutant at issue here, and the government suit was precluded by a prior choice to pursue administrative remedies. The events which gave rise to this action occurred at Earth Sciences’ gold leaching operation on the Rito Seco Creek in Costilla County, Colorado, and were stipulated by the parties. Gold leaching is a process whereby a toxic substance, here a sodium cyanide-sodium hydroxide water solution, is sprayed over a “heap” of gold ore, separating the gold from the ore. The leachate solution is then collected and the gold extracted for commercial sale. The center of Earth Sciences’ operation is a 3V2- to 4-acre pile of gold ore on top of an impermeable plastic membrane and 12 inches of sand constructed with a gradual slope, causing the leachate solution to funnel to one end into a small fiberglass-lined pool, called the primary sump. The solution is pumped from the primary sump into a processing trailer where the gold is removed, and then back onto the heap or into the primary sump. A 168,000-gallon reserve sump is available to catch excess leachate or runoff in emergency situations. The entire operation consists of several open excavations lined with plastic membrane, the processing trailer and pumps, all designed to be a closed system without any pollutant discharge. Warm April temperatures caused faster melting than expected of a blanket of snow covering the heap, filling the primary and reserve sumps to capacity. This caused a one- to five-gallon-per-minute discharge of the sodium cyanide-sodium hydroxide leach-ate solution into the Rito Seco Creek for about a six-hour period. The solution is stipulated to be a pollutant under the FWPCA. Earth Sciences did not report the discharge to either state or federal environmental authorities. A few days later the Colorado Division of Wildlife received a report of dead fish on the Rito Seco, causing a state inspector and two other wildlife employees to visit the Earth Sciences site. The inspector interviewed Earth Sciences employees and verified that a discharge had occurred. While the state employees were photographing and taking water samples of the operation, the reserve sump overflowed a second time, discharging approximately ten gallons per minute into the Rito Seco for two hours, until a bulldozer was used to construct a dirt berm around the edge of the- reserve sump to stop the flow. Within a week Earth Sciences constructed another reserve sump with an additional capacity of 398,000 gallons. Because the FWPCA encourages use of approved state enforcement procedures, 33 U.S.C. §§ 1316(c) and 1319(a)(1), the Environmental Protection Agency (EPA) requested the Colorado Department of Health to act to prevent further discharges. The state notified Earth Sciences it had violated Colo.Rev.Stat. § 25-8-501 (1973), which requires a permit to discharge pollutants, and Colo.Rev.Stat. § 25-8-601(2) (1973), allowing for criminal penalties if a discharge is not reported. Colorado ordered Earth Sciences to cease and desist from further illegal discharges and to “perform any work necessary to prevent future unauthorized discharges” or stop its operation. Earth Sciences notified the Department of Health the newly-constructed reserve sump in combination with existing facilities would “accommodate 1.6 times as much water” as would fall on the heap in any 24-hour period, based on maximum rainfall statistics in the area since 1951. The state did not initiate any criminal prosecution. Apparently the EPA decided the Colorado enforcement was insufficient and issued its own notice of violation and cease and desist order under 33 U.S.C. § 1319(a)(3), which reads as follows; Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 1311, ... he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. The EPA notice informed Earth Sciences the cyanide solution discharges violated 33 U.S.C. § 1311(a), because Earth Sciences had not applied for and been granted a permit to discharge pollutants under 33 U.S.C. § 1342. The notice identified an open ditch between the reserve sump and the Rito Seco Creek as a point source, defined in 33 U.S.C. § 1362(14) as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. Contrasted with the state order, the EPA order was substantially more detailed and required Earth Sciences submit a plan to assure future discharges would not occur. Five days after the EPA order was issued a sampling team of two EPA employees visited the Earth Sciences site. Groundwater seeps of approximately one gallon per minute were observed below the sumps running toward the Rito Seco and partially gathering into pools near the creek. Samples taken from two of these pools were found to contain cyanide. Earth Sciences’ compliance with the EPA order reaffirmed the capacity of the reserve sump system against maximum recorded precipitation, and identified several steps Earth Sciences would take to divert the natural runoff away from the leaching facilities. Earth Sciences also assured the EPA it would monitor groundwater seeps around the sumps and the quality and quantity of the runoff. Soon thereafter the United States filed suit, alleging Earth Sciences committed three separate violations of FWPCA, one each time the reserve sump overflowed and one as a result of the tests on the water collected from the groundwater seeps. All three violations were asserted under 33 U.S.C. § 1311(a). The matter came before the district court on opposing motions for summary judgment. The hearing was brief, focusing primarily on the court’s concern that Earth Sciences’ discharges were not conveyed to the Rito Seco by means of a point source, as that term is defined in the Act, section 1362(14) quoted above. Whether a discharge is made through a point source is crucial for application of enforcement provisions of FWPCA because pollutants discharged through point sources are regulated by effluent limitations and require a permit. Because nonpoint sources of pollution, such as oil and gas runoffs caused by rainfall on the highways, are virtually impossible to isolate to one polluter, no permit or regulatory system was established as to them. Rather, the EPA is instructed under 33 U.S.C. § 1314(f) to develop (1) guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants, and (2) processes, procedures, and methods to control pollution resulting from— (A) agricultural and silvicultural activities, including runoff from fields and crops and forest lands; (B) mining activities, including runoff and siltation from new, currently operating, and abandoned surface and underground mines; (C) all construction activity, including runoff from the facilities resulting from such construction; . Based on its reading of the legislative history, the district court interpreted § 1314(f) as exempting those activities listed in (2) from the FWPCA enforcement provisions, due to their character as non-point source polluters. After the court decided Earth Sciences’ gold leaching facility was a mining activity, dismissal of the government’s suit followed because the government no longer had any enforcement power under § 1311(a) to bring a civil action. Appellant United States contends the district court’s conclusion is an incorrect interpretation of the law. I The United States argues discharges from mining activities often may be from nonpoint sources, but it is possible pollutants will be conveyed through a point source and be subject to regulation under the Act. Initially, the government argues, the definition of a point source does not exclude mining activity; the district court interpolated an exemption from the structure of § 1314(f). The United States contends that if Congress wanted to exempt all activities in § 1314(f)(2) because they are listed , after subpart (1), it would not have done so ambiguously by placing the exemption in a general instruction section of the statute. It further points out that Congress rejected an amendment that would have explicitly regulated mining discharges from point sources, because it was duplica-tive of the Act’s general regulatory provisions. Congress also debated and eventually adopted an amendment exempting irrigation discharges because those would have been included under general point source regulations. Congressional intent behind FWPCA was to eliminate “discharge of pollutants into the navigable waters” of the United States by 1985. 33 U.S.C. § 1251. The EPA was instructed to promulgate regulations within a year governing effluent limitations for point source regulation. 33 U.S.C. § 1314(b). Because the agency had not issued those regulations within a year, a suit was brought forcing them to do so, the result being that a federal district court established a timetable for EPA compliance. Natural Resources Defense Council, Inc., v. Train, 6 E.R.C. 1033 (D.D.C.1973), aff’d in part, rev’d in part on other grounds, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975). That court order included mining activities as a category for EPA regulations. In fact the EPA has promulgated extensive regulations covering mining, 40 C.F.R. pt. 434, 436 and 440 (1977), and more than 6,000 discharge permits have been applied for or received by mining operations. Ami-cus Brief of The Natural Resources Defense Council, p. 14, citing EPA statistics. In a suit challenging the EPA’s authority to exclude all silvicultural and certain agricultural discharges from point source regulation, two of the categories listed in § 1314(f), the United States Court of Appeals for the District of Columbia held, “The wording of the statute, legislative history, and precedents are clear: the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of § 402.” Natural Resources Defense Council, Inc. v. Costle, 186 U.S.App.D.C. 147, 155, 568 F.2d 1369, 1377 (1977). The D.C. Circuit agreed with the district court in that case “that the power to define point and nonpoint sources is vested in EPA and should be reviewed by the court only after opportunity for full agency review and examination.” 186 U.S.App.D.C. at 160, 568 F.2d at 1382. At least one district court has stated point source regulation may apply to mining, but that mining activities often cause nonpoint source pollution which is not regulated by the Act. Sierra Club v. Abston Constr. Co., Inc., 10 E.R.C. 1416, 1420 (N.D.Ala.1977). Any time a comprehensive Congressional regulatory program is enacted the legislative history is relevant for determining Congressional intent. In another context we have noted the legislative history behind the FWPCA “does not help us much.” American Petroleum Inst. v. EPA, 540 F.2d 1023, 1027 (10th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977). But in our view the government has the better of the arguments on legislative history. We are impressed by the rejection of the proposed Hechler amendment on mine water wastes, as being based upon the view mining was already covered by the proposed Act (See Staff of Senate Comm, on Public Works, 93d Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, 530-535 (Comm. Print 1973)); the debate and later adoption of the irrigation water exception from the definition of point sources in 33 U.S.C. § 1362(14) as being necessary to prevent it from being covered by the permit requirements (Id. 651-653); and the fact the FWPCA’s permit program superceded the Refuse Act’s permit program while preserving its general prohibition against un-permitted discharges (33 U.S.C. §§ 1342(a)(5); 1371(a)). The Refuse Act has been held to prevent unpermitted discharges of mining wastes. See Reserve Mining Co. v. EPA, 514 F.2d 492, 529-532 (8th Cir. 1975), modified, 529 F.2d 181 (1976); United States v. Valley Camp Coal Co., 480 F.2d 616 (4th Cir. 1973). The legislative history indicates41 to us Congress was classifying nonpoint source pollution as disparate runoff caused primarily by rainfall around activities that employ or cause pollutants. The Senate Report discussion of what became 33 U.S.C. § 1314, contains the following statements: Sediment, often associated with agricultural activities, is by volume our major pollutant, not only from the degrading effect of the sediment, but because it also transports other pollutants. Fertilizer and pesticide runoff are also major agricultural non-point sources. Poor forestry practices, including indiscriminate clear cutting, may also generate substantial soil erosion problems. One of the common problems associated with pollution control is the dramatic increase in storm runoff when the earth’s surface is made impermeable. Thus highways, building, and parking lots all contribute substantially to the accelerated runoff of rainwater into natural water systems. The greater volume and greater velocity produced cause high rates of erosion and siltation. In addition, highway runoff often includes oil, rubber particles, lead, asbestos and other elements or additives deposited on highways as a result of vehicular traffic. Legislative Hist., supra, 1470-1471. Beginning with the Congressional intent to eliminate pollution from the nation’s waters by 1985, the FWPCA was designed to regulate to the fullest extent possible those sources emitting pollution into rivers, streams and lakes. The touchstone of the regulatory scheme is that those needing to use the waters for waste distribution must seek and obtain a permit to discharge that waste, with the quantity and quality of the discharge regulated. The concept of a point source was designed to further this scheme by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the United States. It is clear from the legislative history Congress would have regulated so-called nonpoint sources if a workable method could have been derived; it instructed the EPA to study the problem and come up with a solution. We believe it contravenes the intent of FWPCA and the structure of the statute to exempt from regulation any activity that emits pollution from an identifiable point. Therefore, we hold the district court erred interpreting 33 U.S.C. § 1314(f) as enumerating nonpoint source exemptions from FWPCA enforcement regulations. Mining and the other categories listed in § 1314(f)(2) may involve discharges from both point and nonpoint sources, and those from point sources are subject to regulation. II Earth Sciences raises four additional issues, each of which it argues independently supports the district court’s judgment of dismissal of the government action. These issues were asserted below in Earth Sciences’ motion to dismiss the government’s suit six months before summary judgment was granted. The contentions are: (1) overflows from Earth Sciences’ mining operations were not from any “point source”; (2) Earth Sciences made no “discharge” of pollutant into the creek; (3) the Rito Seco is not a “navigable water” subject to regulation under the Act; and (4) the statute requires the EPA pursue administrative remedies or file a civil action, but not both. Earth Sciences’ cross-appeal is proper because finality of the summary judgment order makes prior interlocutory orders appealable under 28 U.S.C. § 1291. Also, we may affirm the granting of summary judgment if any proper ground exists, whether or not that formed the basis of the trial court’s ruling. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1124 (10th Cir. 1979). Appellee points out that the government has been equivocal as to what is the point source for the discharges involved in this case. In its briefing on appeal the United States says it is the reserve sump. The statutory definition of a point source is: The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. 33 U.S.C. § 1362(14). Earth Sciences emphasizes the references to “conveyance” declaring it must mean a ditch or pipe or some instrument intended to be used as a conduit. The government emphasizes the terms “well,” “container” and references to a concentrated feeding operation as a point source. It relies upon the dictionary definition of “sump” as a pit or well in which liquids collect. We have no problem finding a point source here. The undisputed facts demonstrate the combination of sumps, ditches, hoses and pumps is a circulating or drainage system to serve this mining operation. The usage of the reserve sump here fits the Webster’s Third New International Dictionary (1976) definition of “sump pit” as “a pit at the lowest point in a circulating or drainage system.” Despite the large capacity (168,000 gallons for the reserve sump) we view this operation as a closed circulating system to serve the gold extraction process with no discharge. When it fails because of flaws in the construction or inadequate size to handle the fluids utilized, with resulting discharge, whether from a fissure in the dirt berm or overflow of a wall, the escape of liquid from the confined system is from a point source. Although the source of the excess liquid is rainfall or snow melt, this is not the kind of general runoff considered to be from nonpoint sources under the FWPCA. III Earth Sciences’ second argument is that 33 U.S.C. § 1311(a) is written so that only thq, intentional discharges of pollutants are unlawful: since the overflow of the reserve sump in this case was accidental, the Act does not apply. The regulatory provisions of the FWPCA were written without regard to intentionality, however, making the person responsible for the discharge of any pollutant strictly liable. 33 U.S.C. § 1362(12) defines discharge of pollutants as “any addition of any pollutant to navigable waters from any point source.” (Emphasis added.) Willful or negligent violations of the Act are separately, punishable by criminal penalties under 33 U.S.C. § 1319(c)(1). The Act would be severely weakened if only intentional acts were proscribed. We will not interpret it that narrowly, particularly when the legislative history is clear Congress intended strong regulatory enforcement. Consequently, Earth Sciences’ contention is without merit. IV It is argued that the Rito Seco is not a “navigable water” subject to regulation under the Act. At first blush that argument appears to be plausible. It was stipulated by the parties that the Rito Seco is not navigable in fact nor is it used to transport any goods or materials. It is located entirely in Costilla County, Colorado, and below this operation are two reservoirs which collect all of the stream flow to be used for recreation and agricultural irrigation. Earth Sciences would have us review this Act in terms of the traditional meaning of “navigable waters,” as construed in the line of eases beginning with The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871). But the conference committee resolving differences between the Senate and House versions of the FWPCA in 33 U.S.C. § 1362(7) eliminated the word “navigable” from in front of “waters” in the House bill; thus “navigable waters” was defined as “the waters of the United States, including the territorial seas.” The conference report noted the change and declared the term should “be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” Sen.Conf.Rep.No.92-1236, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News pp. 3668, 3776, 3822. It is stipulated by the parties that the stream supports trout and some beaver; the water collected in the reservoir is used for agricultural irrigation, and the resulting products are. sold in interstate commerce. It seems clear Congress intended to regulate discharges made into every creek, stream, river or body of water that in any way may affect interstate commerce. Every court to discuss the issue has used a commerce power approach and agreed upon that interpretation. Particularly useful is the extended discussion of the issue in United States v. Ashland Oil and Transp. Co., 504 F.2d 1317 (6th Cir. 1974). That court held the FWPCA navigable waters definition extended to waters nonnavigable in the traditional sense, and that definition was within Congress’ constitutional powers under the commerce clause. Bodies of water less substantial than the Rito Seco have been held to be under the ambit of the Act. See Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. 1976); P.F.Z. Properties, Inc. v. Train, 393 F.Supp. 1370 (D.D.C.1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). Earth Sciences argues the Rito Seco does not provide a very significant link in the chain of interstate commerce. The stipulation of facts indicates at least some interstate impact from this stream and that is all that is necessary under the Act. We hold the Rito Seco is covered by the FWPCA’s definition of navigable waters. V Finally, Earth Sciences challenges the government’s right to bring a civil action after pursuing administrative remedies. The only justification for a civil action after issuance of an EPA order, Earth Sciences asserts, is non-compliance with that order. The complaint filed by the government in this case does not allege Earth Sciences failed to comply with the EPA order, but seeks civil damages. The pertinent section of FWPCA is 33 U.S.C. § 1319(a)(3) which enables the EPA to “issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action . . .” (Emphasis added.) The disjunctive “or” is interpreted literally by Earth Sciences as requiring a choice by the EPA to pursue only one remedy, furthering a Congressional intent to eliminate duplicative actions. Consequently, states are encouraged to seek compliance and only if the state enforcement is insufficient is EPA to enter the case. § 1319(a)(1). This argument gave us some pause because “or” is normally read in a disjunctive sense, signifying alternatives. Nevertheless, as noted in De Sylva v. Ballentine, 351 U.S. 570, 573, 76 S.Ct. 974, 976, 100 L.Ed. 1415 (1956): We start with the proposition that the word “or” is often used as a careless substitute for the word “and”; that is, it is often used in phrases where “and” would express the thought with greater clarity. That trouble with the 'word has been with us for a long time: see, e. g., United States v. Fisk, 3 Wall. 445, 18 L.Ed. 243. Two district courts have, dealt with this issue, holding the statute did not restrict the EPA to mutually exclusive alternatives. In United States v. Detrex Chemical Indus., Inc., 393 F.Supp. 735, 738 (N.D.Ohio 1975), the court stated: To rule otherwise, would reward violators of the Act by forgiving penalties incurred where the administrator has invoked this congressionally approved procedure, thereby effectively discouraging the utilization of said procedure.. See also, United States v. Eastern Associated Coal Corp., 11 E.R.C. 1381 (W.D.Pa.1977). It is plainly inconsistent with the strong enforcement policy of the Act to declare the EPA must choose between prevention of future pollution discharges and punishment of past violations through civil penalties. The administrator needs both sanctions. Sen.Rep.No.92-414, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin. News, p. 3731, accompanying the bill, at least inferentially supports the conclusion Congress intended both to be available. We hold the argument the EPA is limited to one remedy must be rejected. Thus we reject the alternate defenses of the district court judgment, and remand the cause for further proceedings consistent herewith.

Leslie Salt Co. v. Froehlke

SNEED, Circuit Judge: These appeals deal with the scope of the regulatory jurisdiction of the U.S. Army Corps of Engineers (“Corps”) over “navigable waters of the United States” as that term is used, first, in the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and, second, in the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251, et seq. Suit was initiated on March 29, 1972, by the Sierra Club against Leslie Salt Co. (“Leslie”), seeking a declaratory judgment that Leslie’s diked evaporation ponds in and around Bair Island in San Francisco Bay were built in violation of the Rivers and Harbors Act of 1899 because Leslie had failed to seek or obtain permits from the Corps. The action also sought a permanent injunction ordering removal of the dikes or, in the alternative, prohibiting further construction or maintenance of dikes at Bair Island. Leslie then sued the Corps on December 20, 1973, seeking a declaration that the regulatory jurisdiction of the Corps over tidal marshlands in San Francisco Bay under both the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act of 1972 (“FWPCA”) is delimited by the line of mean high water (“MHW”). The Sierra Club was permitted to intervene in this action. The two cases were consolidated for trial. On December 9, 1974, the district court rendered partial summary judgment in favor of the Corps and the Sierra Club in Leslie’s suit against the Corps (“Leslie’s suit”), holding that the Corps’s jurisdiction under the FWPCA extends to the line of mean higher high water (“MHHW”) on the Pacific coast. Leslie Salt v. Froehlke, 403 F.Supp. 1292 (N.D.Cal.1974). This was followed on March 11, 1976 by an opinion in both cases holding that the Corps’s jurisdiction under the Rivers and Harbors Act also extends to the MHHW line on the Pacific coast. Sierra Club v. Leslie Salt, 412 F.Supp. 1096, 1102 (N.D.Cal.1976). The district court further held that the Corps’s jurisdiction extends to the former MHHW line in its unobstructed, natural state, rather than to the present MHHW line, which at least in part follows the bayward edge of Leslie’s dikes. Id. at 1102. Finally, the court held that although the Corps had timely asserted its jurisdiction over the discharge of dredged or fill material under the FWPCA of 1972, it was estopped from requiring permits under the Rivers and Harbors Act for the future maintenance of any obstruction already constructed before the Corps’s assertion of jurisdiction. Id. at 1104. The court ruled that its estoppel holding in Leslie’s suit against the Corps was also applicable to the Sierra Club’s action (“Sierra Club’s suit”), which later was dismissed on the court’s own motion. These appeals followed. The district court erred in holding that the Corps’s jurisdiction under the Rivers and Harbors Act extends to the MHHW line on the Pacific coast, but was correct insofar as its holding subjected to the Corps’s jurisdiction under the FWPCA waters which are no longer subject to tidal inundation because of Leslie’s dikes, without regard to the location of historic tidal water lines in their unobstructed, natural state. The district court also erred in dismissing Sierra Club’s suit against Leslie, designated in this court as No. 76-2696. Therefore, we reverse in part, modify in part, and remand No. 76-2696 for further proceedings. I. Facts. Leslie owns some 35,000 acres of property along the shores of south San Francisco Bay. Appellant Mobil Oil Estates Ltd. (Bair Island Investments) is the owner of a 3,000-acre parcel in San Mateo County known as “Bair Island.” The subject lands were originally conveyed by the United States to the State of California pursuant to the Arkansas Swamp Act of 1850, 43 U.S.C. § 981 et seq., and then patented by the state to Leslie’s predecessors in interest. In its natural condition, the property was marshland subject to the ebb and flow of the tide. Commencing in 1860, the land was diked and reclaimed and has since that time been used primarily for salt production by means of solar evaporation of Bay waters introduced into Leslie’s salt ponds. These dikes were completed, for the most part, in 1927, although some work continued through 1969. Because of these dikes, the land in question has not been subject to tidal action on a regular basis, although most of it is periodically inundated by Bay waters for salt production. The Bair Island property was removed from salt production in 1965; because of the continued maintenance of dikes on the island, it has become dry land. In 1971 and 1972, the San Francisco District of the Corps published two Public Notices (No. 71-22 on June 11, 1971, and No. 71-22(a) on January 18, 1972), stating that the Corps had changed its policy and would henceforth require permits for all “new work” on unfilled marshland property within the line of “former mean higher high water,” whether or not the property was presently diked off from the ebb and flow of the tides. In these Public Notices the Corps purported simply to redefine the scope of its regulatory authority within the ambit of the Rivers and Harbors Act of 1899, sections 9 and 10 of which prohibit filling or the construction of any “dam,” “dike,” “obstruction,” or “other structures” within the “navigable water of the United States,” without the prior authorization of the Corps of Engineers. 33 U.S.C. §§ 401, 403. An understanding of the technical tide line terminology is critical to this case. Every 24.8 hours, both the Pacific and Atlantic coasts of the United States experience two complete tidal cycles, each including a high and a low tide. The Gulf coast tides, known as diurnal, have but one high and one low tide each lunar day. On the Atlantic coast, the difference between the two daily tidal cycles, known as semi-diurnal tides, is relatively slight. Accordingly, there is in most instances little difference between the two high tides or between the two low tides in a given day on the east coast. The two' daily Pacific coast tidal cycles (known as “mixed type” tides), however, in most locations are substantially unequal in size, with one high tide significantly higher than the other. The mean high water line is the average of both of the daily high tides over a period of 18.6 years; the mean higher high water line is the average of only the higher of the two tides for the same period of time. Thus, on the Atlantic coast the difference between the MHW and the MHHW is relatively small, while on the Pacific coast generally it is relatively large. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1098-99. We shall first discuss Leslie’s suit and then turn to that of the Sierra Club. II. Leslie’s Suit. A. Summary Judgment in Leslie’s Suit. A threshold question is raised by Leslie as to whether summary judgment was improperly granted. We find that the district court did not err in deciding that there were no genuine issues of material fact. The issues to be decided in Leslie’s suit were purely legal. As framed by Leslie, the action was for a declaratory judgment that the regulatory jurisdiction of the Corps under both the Rivers and Harbors Act and the FWPCA extended only to the MHW line, and an injunction restraining the Corps from requiring permits for properties located above the MHW line. The suit did not involve action or inaction by the Corps on any particular application by Leslie for a permit under the Rivers and Harbors Act or the FWPCA, since Leslie has refused to apply for any permits. Thus, the particular circumstances and characteristics of Leslie’s property in this case were not material to the questions raised on the motions for summary judgment. B. Scope of Corps’s Jurisdiction Under Rivers and Harbors Act. Analysis of the Rivers and Harbors Act must begin by acknowledging that it does not define the terms “navigable water of the United States” or “waters of the United States.” Pertinent regulations defining these terms have recently been adopted by the Corps. On July 25, 1975, after the San Francisco District of the Corps issued the two Public Notices dealing with the use of the MHHW line as the limit of its jurisdiction, the Corps promulgated the following definition of “navigable waters of the United States”: The term, “navigable waters of the United States,” is administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate commerce landward to their ordinary high water mark and up to the head of navigation as determined by the Chief of Engineers, and also waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific coast). See 33 C.F.R. 209.260 (ER 1165-2-302) for a more definitive explanation of this term. 33 C.F.R. § 209.120(d)(1) (emphasis added). Regulation 209.260, adopted September 9, 1972, provides in most pertinent part, as follows: Shoreward limit of jurisdiction. Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water. However, on the Pacific coast, the line reached by the mean of the higher high waters is used. 33 C.F.R. § 209.260(k)(l)(ii) (emphasis added). Prior to these amendments the Regulation did not address itself to the shoreward limit of its jurisdiction and deferentially set forth its views regarding what constitutes navigable water as merely “the views of the Department since the jurisdiction of the United States can be conclusively determined only through judicial proceedings.” 33 C.F.R. § 209.260(a) (1971). Leslie contends that the district court’s ruling upholding the Corps’s regulations is contrary to every reported decision defining the boundaries of tidal water bodies. Conceding that Congress may in theory have the power under the Commerce Clause to legislate with respect to land between the MHW and the MHHW line, Leslie argues that the “navigable waters of the United States” within the meaning of the Rivers and Harbors Act have consistently been judicially extended only to the MHW line. In response, the Corps and the Sierra Club argue that the extent of Rivers and Harbors Act jurisdiction on the Pacific coast is an issue of first impression for any appellate court, and has arisen in only two previous court cases. They urge that the Corps’s use of the MHHW line on the Pacific coast is a logical and reasonable attempt to “harmonize” its regulatory program throughout the country. Inasmuch as Leslie accurately describes the state of the authorities, the Corps and Sierra Club in effect invite us to read the Act differently than in the past to accommodate the desire of the Corps to extend its jurisdiction on the Pacific coast. We decline the invitation because we believe it is misdirected. It should be addressed to Congress rather than the Judiciary. Turning to the authorities, the Supreme Court in 1915 held that federal regulatory jurisdiction over navigable tidal waters extends to the MHW line. Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808 (1916). While Willink was concerned with the boundaries of the tidal waters on the Atlantic coast, the case is significant because it deals directly with the relationship between the federal navigational servitude and the Corps’s regulation of “navigable waters of the United States.” The servitude, which reaches to the limits of “navigable water,” permits the removal of an obstruction to navigable capacity without compensation. See 33 U.S.C. § 403. Accordingly, an expansion of “navigable water” shoreward diminishes the protection of the Fifth Amendment. We think an interpretation of the Act which accomplishes this, first advanced seventy-two years after its enactment, should be viewed with skepticism to say the least. The district court in support of its interpretation relied on the earlier river case of Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939 (1915), to derive the “underlying principle” that federal authority over navigable waters “necessarily . . . extends to the whole expanse of the stream, and is not dependent upon the depth or shallowness of the water.” Greenleaf-Johnson, 237 U.S. at 263, 35 S.Ct. at 555. The trouble with this “principle,” however, is that it could support the use of the extreme high spring tides for the line of jurisdiction just as well as it supports MHW or MHHW. A “principle” which bestows more power than its beneficiary currently requests should not be readily accepted. Consistent with Willink, however, is the leading case defining the extent of tidal water bodies on the Pacific coast. Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935) originated in a property dispute brought by Los Angeles to quiet title to land on an island in Los Angeles harbor. At issue was the proper boundary between tidelands as to which the State possessed original title upon admittance to the Union, and uplands, which became public lands of the United States at the time of their acquisition from Mexico. Los Angeles claimed the disputed property under a tidelands grant from the State of California, while Borax Consolidated, the upland owner, claimed under a patent issued by the United States. The specific question presented on appeal to the Supreme Court was whether this boundary line was the mean high tide line as urged by Los Angeles, or the “neap tide” line, as Borax Consolidated contended. Neap tides are those which occur monthly when the moon is in its first and third quarters, during which time the tide does not rise as high or fall as low as on the average. In contrast, “spring tides,” which occur at times of new moon and full moon, are greater than average. During spring tide the high water rises higher and low water falls lower than usual. Borax, supra, 296 U.S. at 23, 56 S.Ct. 23. The Supreme Court, affirming a decision of this court, held that the tideland extends to the MHW mark as technically defined by the United States Coast and Geodetic Survey: that is, “the average height of all the high waters” at a given place over a period of 18.6 years. Id. at 26 — 27, 56 S.Ct. at 31 (emphasis added). The Supreme Court stated its rationale as follows: [B]y the common law, the shore “is confined to the flux and reflux of the sea at ordinary tides.” . . . It is the land “between ordinary high and low water mark, the land over which the daily tides ebb and flow. . . . ” The range of the tide at any given place varies from day to day, and the question is: How is the line of “ordinary” high water to be determined? In determining the limit of the federal grant, we perceive no justification for taking neap high tides, or the mean of those tides, as the boundary between upland and tideland, and for thus excluding from the shore the land which is actually covered by the tides most of the time. In order to include the land that is thus covered, it is necessary to take the mean high-tide line, which ... is neither the spring tide nor the neap tide, but a mean of all the high tides. Id. at 22-23, 26, 56 S.Ct. at 29, 31. The district court below distinguishes Borax on the grounds that the Supreme Court was dealing with an issue of title and “made no reference to the federal navigational servitude under the Rivers and Harbors Act or to the distinction of MHHW and MHW.” Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1101. However, Borax cannot be brushed aside so easily. The considerations involved in the regulation of navigable waters under the commerce power are intimately connected to the question of title to tidelands. The term “navigable waters” has been judicially defined to cover: (1) nontidal waters which were navigable in the past or which could be made navigable in fact by “reasonable improvements,” United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921); and (2) waters within the ebb and flow of the tide. The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851); United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. President, etc., of Jamaica & R.T.R., 183 F. 598, 601 (C.C.E.D. N.Y.1910), rev’d on other grounds, 204 F. 759 (2d Cir. 1913); United States v. Banister Realty Co., 155 F. 583, 594 (C.C.E.D.N.Y.1907). Tideland, by definition, is the soil underlying tidal waters. To fix the shoreward boundary of tideland there must be fixed the shoreward limit of tidal water which, in turn, should fix the shoreward limit of “navigable waters” in the absence of a contrary intent on the part of Congress. To fix the limit of “navigable water,” for the purposes of the Rivers and Harbors Act, further shoreward than Borax fixed the limit of “tidal water” assumes the existence of an intent of Congress at the time of the Act’s enactment of which we have no evidence. The high probability that Congress in the Act intended that the shoreward limit of tidal water and navigable water be the same is supported by the fact that only five years previously in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), the Supreme Court held that a “donation land claim, bounded by the Columbia river, . includes no title or right in the land below high-water mark,” id. at 58,14 S.Ct. at 570, resting its conclusion on the fact that lands under “tide waters” had “great value to the public for the purposes of commerce, navigation, and fishery.” Id. at 57, 14 S.Ct. at 569. Shively, we suggest, assumed that the shoreward limit of the navigational servitude, and thus also the shoreward limit of navigable water, fixed the seaward limit of private ownership. Numerous other cases have recognized that land ownership can be determined by the limits of navigable water. See, 1 R. E. Clark, Waters and Water Rights § 37.2(c) (1967). This long-standing recognition that, for the purpose of fixing a shoreward limit, the terms tide water and navigable water are interchangeable strongly suggests that in Borax the Supreme Court, in the course of-settling a title dispute, also fixed the shoreward boundary of navigable water on the Pacific coast. This is buttressed by the fact that since Borax and Willink, the MHW line has been routinely cited as the boundary of federal regulatory jurisdiction over tidal waters by every court to consider the question, with the two recent exceptions upon which the Corps and Sierra Club rely. United States v. Stoeco Homes, Inc., supra, 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974); United States v. Cannon, 363 F.Supp. 1045 (D.Del.1973); United States v. Pot-Nets, 363 F.Supp. 812 (D.Del.1973); United States v. Lewis, 355 F.Supp. 1132 (S.D.Ga.1973). As stated in Holland, supra: Borax became a landmark case in the law of tidal boundaries. And even though the test used by the Supreme Court was enunciated to settle a land dispute, and notwithstanding the fact that the test derived from an English court’s desire to preserve to property owners so much of the land as is “dry and maniorable”, the test of the mean high water mark became the inveterate standard to be applied in limiting federal authority over navigable waters. Holland, supra, 373 F.Supp. at 671. Although these cases all arose on the Atlantic or Gulf coasts, each implicitly accepts Borax, a Pacific coast case, as enunciating a rule applicable to all coasts of the United States. Taken together, they indicate the extent to which the MHW line has been consistently accepted as the boundary of “navigable waters of the United States.” To affirm the Corps’s recent regulations setting the shoreward reach of federal regulatory power on the Pacific coast at the MHHW line would constitute a dramatic reversal of long-established decisional precedent. The appellees insist that the Corps’s recently promulgated regulations using the MHHW line are not an extension of jurisdiction, but merely a recognition of previously informal policy. They point to the testimony of various Corps officials, both in depositions taken for trial and in Congressional hearings, that the Government’s policy had always been to assert Corps regulatory jurisdiction on the Pacific coast up to the MHHW; but that in marsh areas, the seaward edge of marsh grass was used to mark the limits of permit authority, even if the MHHW line was shoreward of this. This inchoate policy apparently remained unstated until 1969, when the first public reference to it was made in a Congressional hearing. House Committee on Government Operations, Protecting America’s Estuaries: The San Francisco Bay and Delta, H.R.Rep. No. 1433, 91st Cong., 2d Sess., 50-51 (1970); House Committee on Government Operations, Increasing Protection For Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R.Rep. No. 1323, 92d Cong., 2d Sess., 27-33 (1972). Assuming arguendo that there was such a policy on the part of the Corps, we cannot accept an interpretation which was never stated or practiced, and which is so clearly contrary to the long-established precedent to which the Corps in its regulations prior to 1972 gave deference. Neither do we perceive how the use of MHHW on the Pacific coast and MHW elsewhere would bring any more “harmony” to the Corps’s regulatory jurisdiction than has existed under the heretofore uniform application of the MHW line on all coasts. Moreover, we have already indicated that more is involved than simply an expansion of the Corps’s regulatory authority. As stated by the Supreme Court in United States v. Virginia Electric Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961): This navigational servitude — sometimes referred to as a “dominant servitude,” . or a “superior navigation easement,” . . . — is the privilege to appropriate without compensation which attaches to the exercise of the “power of the government to control and regulate navigable waters in the interest of commerce.” United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017. United States v. Virginia Electric, 365 U.S. at 627-28, 81 S.Ct. at 787 (emphasis added). The navigational servitude reaches to the shoreward limit of navigable waters. To extend the servitude on the basis of a recently formulated administrative policy is to impose an additional burden of unknown magnitude on all private property that abuts on the Pacific coast. We wish to point out, however, that our interpretation of the Rivers and Harbors Act is not governed by a belief that the Act represents the full exertion by Congress of its authority under the Commerce Clause. To paraphrase the Court of Appeals for the Third Circuit in Stoeco Homes, supra, “we can put aside the question whether under the Commerce Clause, Congress could extend the regulatory jurisdiction of the Army Corps of Engineers” to the MHHW line or beyond: In the statute on which the government relies Congress did not do so. It extended that jurisdiction only to the navigable waters of the United States. . [The Rivers and Harbors Acts of 1890 and 1899] were enacted pursuant to the Commerce Clause, but neither reached the full extent of Congressional power over commerce. That power was exercised in 1890 to protect “waters, in respect of which the United States has jurisdiction” and in 1899 to protect “waters of the United States.” Congress obviously adopted the judicial definition of those waters as of 1890. That definition was the admiralty definition. Stoeco Homes, supra, 498 F.2d at 608-09 (emphasis added). We hold that in tidal areas, “navigable waters of the United States,” as used in the Rivers and Harbors Act, extend to all places covered by the ebb and flow of the tide to the mean high water (MHW) mark in its unobstructed, natural state. Accordingly, we reverse the district court’s decision insofar as it found that the Corps’s jurisdiction under the Rivers and Harbors Act includes all areas within the former line of MHHW in its unobstructed, natural state. Our holding that the MHW line is to be fixed in accordance with its natural, unobstructed state is dictated by the principle recognized in Willink, supra, that one who develops areas below the MHW line does so at his peril. We recognize that under this holding issues of whether the Government’s power may be surrendered or its exercise estopped, and if so, under what circumstances and to what extent, may arise. Leslie, for example, may contend that there has been a surrender by the Corps of its power under the Rivers and Harbors Act with respect to certain land below the MHW line. Such contentions, however, are not presently before us in this case. Therefore, at this time it is not necessary for us to pass on issues such as were before the court in Stoeco, supra. C. Scope of Corps’s Jurisdiction Under FWPCA. The scope of regulatory authority under the FWPCA presents a substantially different issue. The district court’s holding that the Corps’s regulatory jurisdiction under the FWPCA is “coterminous” with that under the Rivers and Harbors Act, extending to “the former line of MHHW of the bay in its unobstructed, natural state,” is faulty. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1102-03. In its opening brief in this appeal, Leslie properly concedes that: the Corps’ jurisdiction under Section 404 of the FWPCA is broader than its jurisdiction under the Rivers and Harbors Act in that it encompasses existing marshlands located above as well as below the lines of mean high water and mean higher high water which are currently subject to tidal inundation. Brief for Appellant Leslie Salt Co. at 60. Leslie contends, however, that the use of the former unobstructed, natural MHHW line “extends the Corps’ regulatory authority significantly further than is authorized by the FWPCA,” because it results in the possibility that the Corps would be able to regulate discharges onto dry lands under an Act whose purpose is to control pollution of the nation’s waters. Id. This contention presents a false issue. Neither the Corps nor the Sierra Club argues for the result envisioned by Leslie. Instead, they contend that under the FWPCA, the case law interpreting it, and the Corps’s own regulations, neither the MHW nor the MHHW line marks the full limit of the Corps’s jurisdiction to regulate the pollution of the waters of the United States. The appellees, however, agree with appellant Leslie that, as stated in the Sierra Club’s brief, [i]f any portions of Leslie’s property were in fact dry, solid upland as of the date of the passage of the FWPCA, therefore, not subject to being returned to their former natural condition of periodic tidal inundation should the artificial obstructions be abated, that property would fall outside the Corps’ Section 404 jurisdiction Brief for Appellee Sierra Club at 84. Where the parties differ is on the question of whether the Corps’s jurisdiction covers waters which are no longer subject to tidal inundation because of man-made obstructions such as Leslie’s dikes. These are the waters which the district court apparently wanted to include under the aegis of the FWPCA through the use of the historic MHHW line “in its unobstructed, natural state.” There are at least two problems with the district court’s solution to the issue of Corps authority over Leslie’s salt ponds. First, it goes beyond the necessities of this case. Although the appellees insist that the court did not mean to include “fast land,” or “improved solid upland” within the ambit of its decision, its order is in fact ambiguous. It simply states that: Pursuant to the FWPCA the Corps may require permits for the discharge of dredged or fill material up to the line of MHHW in its unobstructed natural state, as defined in effect in the Corps’ Public Notices 71-22 and 71-22(a) Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1104. Public Notice No. 71-22(a), published on January 18, 1972, restricts the permit requirement for new work in diked areas below former MHHW to “unfilled portions” thereof. The court’s order, on the other hand, leaves open the possibility of an interpretation to which appellant objects and upon which appellee does not insist. Second, and much more important, the court below actually placed undue limits on the FWPCA when it stated that “the geographical extent of the Corps’ jurisdiction under the Rivers and Harbors Act is coterminous with that under FWPCA.” Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1102. It is clear from the legislative history of the FWPCA that for the purposes of that Act, Congress intended to expand the narrow definition of the term “navigable waters,” as used in the Rivers and Harbors Act. This court has indicated that the term “navigable waters” within the meaning of the FWPCA is to be given the broadest possible constitutional interpretation under the Commerce Clause. California v. Environmental Protection Agency, 511 F.2d 963, 964 n.1 (9th Cir. 1975), rev’d on other grounds sub nom. Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) (“Congress clearly meant to extend the Act’s jurisdiction to the constitutional limit. .”). See United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Ariz. 1975); United States v. Holland, supra, 373 F.Supp. 665 (M.D.Fla.1974). Also in Phelps Dodge, supra, the court interpreted the FWPCA broadly in finding that: . a legal definition of “navigable waters” or “waters of the United States” within the scope of the [Federal Water Pollution Control] Act includes any waterway within the United States also including normally dry arroyos through which water may flow, where such water will ultimately end up in public waters such as a river or stream, tributary to a river or stream, lake, reservoir, bay, gulf, sea or ocean either within or adjacent to the United States. Phelps Dodge, supra, 391 F.Supp. at 1187. See also, United States v. Holland, supra, 373 F.Supp. at 670-676. The water in Leslie’s salt ponds, even though not subject to tidal action, comes from the San Francisco Bay to the extent of eight to nine billion gallons a year. We see no reason to suggest that the United States may protect these waters from pollution while they are outside of Leslie’s tide gates, but may no longer do so once they have passed through these gates into Leslie’s ponds. Moreover, there can be no question that activities within Leslie’s salt ponds affect interstate commerce, since Leslie is a major supplier of salt for industrial, agricultural, and domestic use in the-western United States. Much of the salt which Leslie harvests from the Bay’s waters at the rate of about one million tons annually enters interstate and foreign commerce. Our suggestion that the full extent of the Corps’s FWPCA jurisdiction over the “waters of the United States” is in some instances not limited to the MHW or the MHHW line is reinforced by regulations published by the Corps on July 19,1977 and found at 33 C.F.R. § 323.2, as published at 42 Fed.Reg. 37144-37145. Without determining the exact limits of the scope of federal regulatory jurisdiction under the FWPCA, we find that the regulations at 33 C.F.R. § 323.2 are reasonable, consistent with the intent of Congress, and not contrary to the Constitution. We therefore hold that the Corps’s jurisdiction under the FWPCA extends at least to waters which are no longer subject to tidal inundation because of Leslie’s dikes without regard to the location of historic tidal water lines in their unobstructed, natural state. We express no opinion on the outer limits to which the Corps’s jurisdiction under the FWPCA might extend. Our holdings with respect to the Rivers and Harbors Act of 1899 and the FWPCA dispose of the declaratory judgment sought by Leslie in its case. Any claims by Leslie, which may be engendered by these holdings, and which are not also involved in Sierra Club’s case, whether based on equitable considerations, estoppel, or surrender, must be made and considered in a separate and independent proceeding. III. Sierra Club’s Suit. The district court applied its ruling in Leslie’s case against the Corps to the Sierra Club’s suit as well. In an order filed June 30, 1976, the court ruled that “there are no issues remaining to be tried in action No. C-72-561 WTS,” and dismissed the Sierra Club’s complaint in that case. On appeal, the Sierra Club has contended that genuine issues of material fact remain to be tried in the Bair Island case which preclude summary dismissal of its complaint in that action. In oral argument before this Court, Leslie conceded that the Sierra Club’s action does involve unresolved issues not properly determined on summary judgment. We agree, and therefore remand case No. 76-2696 for trial. In doing so we point out that our holding with respect to the limit of the Corps’s authority under the Rivers and Harbors Act is applicable to Sierra Club’s suit. We also recognize that our precise holding with respect to the Corps’s power under the FWPCA may not be sufficiently comprehensive to dispose of all questions that might arise on remand. Our reluctance to address issues, which on the basis of the present record must be hypothetical, is required by our disability to render advisory opinions. A full development of the facts on remand will remove this obstacle. The decision of the district court with respect to the Rivers and Harbors Act of 1899 is reversed. The decision of the district court with respect to the FWPCA is reversed in part and modified in part. The action of the Sierra Club against Leslie Salt is remanded for further proceedings not inconsistent with this opinion. Reversed in part, Modified in part, and Remanded in part. . Leslie, which conveyed this property to Mobil Oil Estates, has represented the interests of the latter throughout this suit. Accordingly, reference will be made only to Leslie herein. . In its brief, Leslie asserts that “[i]n their natural condition the former marshlands in question were located above the line of mean high water . . . This statement is disputed by the Sierra Club, particularly with respect to Bair Island; apparently it is not disputed by the United States, however. . Public Notice No. 71-22 provides in pertinent part as follows: This Public Notice is issued to inform all interested parties of the definition of navigable waters of the United States subject to tides in which the permit procedures established by the River & Harbor Act of 1899 are applicable. Henceforth limits of jurisdiction over such waters shall extend to the line on shore reached by the plane of the mean of the higher high water. Public Notice No. 71-22(a) provides as follows: This is in elaboration of our previous Public Notice No. 71-22, dated 11 June 1971, announcing that the Corps of Engineers is now exercising its regulatory authorities within the area bound by the plane of the mean of the higher high water. Permits are required for all new work in unfilled portions of the interior of diked areas below former mean higher high water. . Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, provides in pertinent part as follows: It shall not be lawful to construct . any bridge, dam, dike or causeway over or in any . . . navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army .... Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, provides in pertinent part as follows: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any . . . water of the United States . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill . within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. . On July 19, 1977, the Corps published a recompilation of its regulations covering permit applications. The equivalent of the regulation here cited is now found at 33 C.F.R. § 321.2(a), under Part 321, “Permits for Dams and Dikes in Navigable Waters of the United States,” and at 33 C.F.R. § 322.2(a), under Part 322, “Permits for Structures or Work in or Affecting Navigable Waters of the United States,” both published at 42 Fed.Reg. 37139 (July 19, 1977). These new sections, which are identical in wording, provide: The term “navigable waters of the United States” means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark (mean higher high water mark on the Pacific coast), and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce. See 33 C.F.R. Part 329 for a more complete definition of this term. There has been no substantive change from the July 25, 1975 regulation. . This regulation is now found in identical form at 33 C.F.R. § 329.12(a)(2), as published at 42 Fed.Reg. 37163 (July 19, 1977). . One of these is unreported, United States v. Freethy, No. 73-1470 (N.D.Cal. Feb. 24, 1975); the other makes only passing mention of the use of the MHHW line as the Corps’s limit of jurisdiction, United States v. Kaiser Aetna, 408 F.Supp. 42, 50 n.18 (D.Hawaii 1976), appeal docketed, No. 76-1968 (9th Cir. May 3, 1976). . Aside from Freethy, supra, and Kaiser Aetna, supra, the only other reported Pacific coast Rivers and Harbors Act case is this Court’s decision in United States v. Sunset Cove, 514 F.2d 1089 (9th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975). In Sunset Cove, the parties stipulated to use of the MHW line as the extent of federal regulatory jurisdiction. . In distinguishing Borax, the district court apparently relied in part on the fact that the Supreme Court made no reference to the relatively large difference between MHHW and MHW on the Pacific coast. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1101. We note, however, that in concluding that the MHW line is the lateral boundary of a tidal water body on the Pacific coast, the Borax court relied on a United States Coast and Geodetic Survey publication which clearly described the phenomenon of diurnal inequality between MHHW and MHW on the Pacific coast. H. A. Manner, Tidal Datum Planes, U. S. Coast and Geodetic Survey (Special Publication No. 135), at 5-7, 74-97, 125-127 (1927). Borax, supra, 296 U.S. at 23, 26-27, 56 S.Ct. 23. Moreover, in its brief before the Supreme Court in Borax, the respondent City of Los Angeles stated: The courts, in the cases cited by petitioners, point out that the boundary line is not the limit reached by the “unusual” or “extraordinary” high tides. Why then should it be fixed as the limit reached by unusual or extraordinary low high tides? The respondent is not contending in this action that the boundary line between tideland and upland is the limit reached by the unusual or extraordinary high tides. Neither is it contending that the boundary line is the mean of the higher high tides. Brief on Behalf of Respondent at 84, Borax, supra, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935) (emphasis added). Thus, the Supreme Court’s attention was in fact drawn to the MHW-MHHW distinction. . The Corps’s deference to the courts in defining “navigable waters” may explain the apparent uncertainty which it had, prior to the publication of the first Public Notice on June 11, 1971, about the limits of its jurisdiction. At hearings in May and August of 1969 before the Conservation and Natural Resources Subcommittee of the Committee on Government Operations of the U.S. House of Representatives, Corps officials testified that the Corps’s regulatory jurisdiction over San Francisco Bay waters extended to the line of MHHW. However, on January 28, 1971, the division engineer of the Corps’s South Pacific Division, Brig. Gen. Frank A. Camm, sent a letter to a representative of the Sierra Club stating that the Corps’s jurisdiction over San Francisco Bay extended only to “those waters that were in fact capable of being used for navigation.” Hence, said General Camm, “the extent of our jurisdiction in the bay would be the line of mean higher high water (MHHW), except that in marshland areas it would be the outer edge of the marsh grass.” House Committee on Government Operations, Increasing Protection for Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R.Rep. No. 1323, 92d Cong., 2d Sess. 27 (1972). The congressional subcommittee asked the Secretary of the Army to explain the discrepancy between the Corps’s earlier testimony and General Camm’s statement. In response, Under Secretary of the Army, Thaddeus R. Beal, stated in a letter of June 16, 1971, that the Corps’s jurisdiction: extends to the entire surface of a water body once a major channel within that water body has been found to be navigable .. Thus, the “navigable waters” of San Francisco Bay include areas laid bare at low tide, as well as areas presently occupied by marsh grasses but nevertheless subject to normal tidal inundation. Confusion has arisen because physical marks (such as cuts on banks, the edge of terrestrial plant growth, or the edge of marsh grass) have often been accepted as the dividing line between land and water, or roughly equivalent to the line of mean high water. Indeed, early surveys often accepted such lines for purposes of delineating property ownership boundaries. While such lines are useful for general purposes, they cannot be used to delineate “navigable waters” for purposes of legal jurisdiction. Although local custom has in the past justified the use of readily recognizable boundary lines, such as the grass line in San Francisco Bay, the need for a uniform national policy has become evident. Accordingly, we have requested that our Division Engineer for the South Pacific adopt the line on the shore reached by the plane of the mean of the higher high waters as the limit of Federal permit jurisdiction. In its report, the subcommittee correctly called this statement a “new policy” which “broadened” the Corps’s jurisdiction. Id. at 27-29 (emphasis added). It should be noted that the purpose of these hearings was to examine the Corps’s policy of requiring permits only for activities which affected navigation per se; the Committee’s reports focused on urging that the Corps broaden its scope of permit review to consider all ecological factors under applicable environmental protection statutes. The Corps was also criticized for its past failure to require permits for activities in arguably navigable waters of San Francisco Bay. The question of the exact boundary of tidal navigable waters on the Pacific coast was not directly raised, and the relative merits of using MHHW rather than MHW were not discussed. Indeed, as seen, there was apparently some confusion on the part of the Corps as to what the boundaries of its jurisdiction were. Compare, testimony of General Glasgow, August 20, 1969, with his responses to questioning by Congressman McCloskey, in House Committee on Government Operations, Protecting America’s Estuaries: The San Francisco Bay and Delta, H.R. Rep. No. 1433, 91st Cong., 2d Sess., 51-53 (1970). Thus, it is apparent that the Corps, feeling chastened by congressional criticism of its policies, sought to make up for past mistakes by enunciating a new, broadened definition of its regulatory jurisdiction. At no point did Congress or a single congressional committee specifically authorize or even consider the use of MHHW as opposed to MHW on the Pacific coast. . The difference between morning and afternoon tides is known as “diurnal inequality.” Like the monthly variations between spring and neap tides, it is brought about by variations in the declination of the moon relative to the earth. Since the difference between MHHW and MHW is relatively greater on the Pacific coast, the Corps argues that its use of MHHW on the Pacific is more consistent with use of MHW elsewhere than if it simply applied MHW everywhere. However, there are so many exceptions to the basic pattern of greater diurnal inequality on the Pacific coast than the Atlantic that the Corps’s policy cannot be said to produce any “harmony.” The three tide types form a continuum from semidiurnal to mixed to diurnal. As diurnal inequality increases the lower high water and higher low water tend to become equal and merge. When this occurs, there is but one high and one low water in a tidal day instead of two. Thus, this diurnal or “daily” type of tide, which is found on the Gulf coast, is actually an extreme form of the mixed type of tide found on the Pacific coast, just as the mixed tide type is a more extreme form of the semidiurnal type. As reported in the USGS publication relied on by the Supreme Court in Borax, supra, there are tremendous variations in the amounts of diurnal inequality found at various points on the different coasts. For example, there is greater diurnal inequality at Baltimore, Maryland, on the Atlantic coast, than at either Astoria, Oregon or Humboldt Bay, California, both on the Pacific coast. Since the difference between the once a day diurnal type of tide and the mixed tide type is strictly a matter of degree, it is not surprising that some places on the Gulf coast such as the southern end of Florida and parts of Texas actually experience Pacific-type diurnal inequality. On the other hand, the Alaskan coast (presumably part of the Pacific coast for Corps purposes) has tremendous variations all along the spectrum, from Atlantic-type semidiurnal tides at Ketchi-kan, Juneau, and Anchorage; to Pacific-type mixed tides at Sitka, Kodiak, and Point Barrow; to Gulf-type diurnal tides at Dutch Harbor and St. Michael. In view of these inconsistencies in diurnal inequality, it is difficult to see the rationality of using a different standard for the Corps’s jurisdiction on the Pacific coast in order to bring about an asserted uniformity. H.A. Marmer, Tidal Datum Planes, U.S. Coast and Geodetic Survey (Special Publication No. 135), at 5-7, 74-83 (1927). . Leslie’s concession is well taken, since the case law clearly supports an expansive reading of the term “navigable waters” as used in the FWPCA, 33 U.S.C. § 1251, et seq. In United States v. Holland, 373 F.Supp. 665 (M.D.Fla. 1974), the district court, in an excellent analysis, held that the discharge of “sand, dirt and dredged soil on land which, although above the mean high water line, was periodically inundated with the waters of Papy’s Bayou” was within the reach of the FWPCA, since Congress intended to control the discharge of pollutants into waters at the source of the discharge, regardless of its location vis-a-vis the MHW or MHHW lines. The court stated that: . the mean high water line is no limit to federal authority under the FWPCA. While the line remains a valid demarcation for other purposes, it has no rational connection to the aquatic ecosystems which the FWPCA is intended to protect. Congress has wisely determined that federal authority over water pollution properly rests on the Commerce Clause and not on past interpretations of an act designed to protect navigation. And the Commerce Clause gives Congress ample authority to reach activities above the mean high water line that pollute the waters of the United States. The defendants’ filling activities on land periodically inundated by tidal waters constituted discharges entering “waters of the United States” and, since done without a permit, were thus in violation of 33 U.S.C. § 1311(a). Holland, supra, 373 F.Supp. at 676. The legislative history of the FWPCA reviewed by the Holland court amply supports its conclusion. . The FWPCA defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). . See n.3, supra. . The Act itself defines the term “navigable waters” broadly: “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). See n. 13, supra. The bill submitted to the Senate as S. 2770 defined “navigable waters” as “the navigable waters of the United States, portions thereof, and the tributaries thereof, including the territorial seas and the Great Lakes.” 2 Legislative History of the Water Pollution Control Act Amendments of 1972, at 1698 [hereinafter cited as Legislative History], The report of the Senate Committee on Public Works submitted with the bill explained: The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. Through a narrow interpretation of the definition of interstate waters the implementation [of the] 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries. Id. at 1495 (emphasis added). The House of Representatives bill, H.R. 11896, contained a more restrictive definition of “navigable waters”: “the navigable waters of the United States, including the territorial seas.” 1 Legislative History at 1069. When the two bills went to Conference Committee, the word “navigable” was deleted from the definition. The Conference Report explained that: The conferees fully intend that the term “navigable waters” be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes. Conference Report, S.Rep. No. 1236, 92d Cong., 2d Sess., 144, reprinted in [1972] U.S.Code Cong. & Admin.News p. 3822; reprinted in 1 Legislative History at 327. In presenting the Conference version to the House, Representative Dingell, a member of the Conference Committee, explained the Committee’s intention in defining federal water pollution control jurisdiction even more clearly: the conference bill defines the term “navigable waters” broadly for water quality purposes. It means all “the waters of the United States” in a geographical sense. It does not mean “navigable waters of the United States” in the technical sense as we sometimes see in some laws. 1 Legislative History at 250. After discussing the effect of judicial decisions expanding the old test of navigability, Representative Dingell concluded: Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill. . This section sets out the definitions used in Part 323, which covers permits for discharges of dredged or fill material into waters of the United States pursuant to Section 404 of the FWPCA. In pertinent part, § 323.2 provides as follows: For the purpose of this regulation, the following terms are defined: (a) The term “waters of the United States” means: (1) The territorial seas with respect to the discharge of fill material . .; (2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands ; (3) Tributaries to navigable waters of the United States, including adjacent wetlands (manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition); (4) Interstate waters and their tributaries, including adjacent wetlands; and (5) All other waters of the United States not identified in paragraphs (l)-(4) above, such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce. (c) The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. (d) The term “adjacent” means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are "adjacent wetlands." (Emphasis added; footnotes omitted). These definitions were published as part of the regulatory recompilation mentioned in note 5, supra. On July 25, 1975, the Corps issued interim regulations defining “navigable waters of the United States” for purposes of the FWPCA. These regulations, which were found at 33 C.F.R. § 209.120(d)(2), differed in only minor respect from the more recent regulations quoted above. While the now superseded interim regulations were published before the district court’s March 11, 1976 opinion holding that the Corps’s FWPCA jurisdiction extends to the former line of MHHW, the July 19, 1977 recompilation was published after that decision. This court should apply the laws and regulations “in effect at the time it renders its decision.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1968).

American Iron & Steel Institute v. Environmental Protection Agency

OPINION OF THE COURT Before SEITZ, Chief Judge, ROSENN, Circuit Judge and MEANOR, District Judge. SEITZ, Chief Judge. These are petitions to review Environmental Protection Agency regulations governing certain manufacturing processes within the iron and steel industry. The regulations, which were published in the Federal Register on March 29, 1976, establish maximum permissible quantities of pollutant which may be discharged by operations performing the designated processes. The regulations also survey the available pollution control techniques, and specify techniques — the “best practicable control technology currently available” (BPCTCA) —which might be used in meeting the prescribed effluent limitations. In issuing the regulations, the EPA was exercising its statutory mandate to establish effluent limitations requiring the application of the BPCTCA by July 1, 1977. 33 U.S.C. § 1311(b)(1)(A). It is these regulations as to BPCTCA which are under review here. The regulations promulgated by the EPA also contain proposed: a) effluent limitations and guidelines as to the application of the “best available technology economically achieveable” by July 1,1983 b) standards of performance for new point sources and c) pretreatment standards for existing sources and for new sources. The regulations governing the application of the BPCTCA are in “interim final” form, which is to say that, while they were to take effect immediately upon promulgation, the EPA is now in the process of considering “final” regulations covering the same subject matter. The regulations state that the reasons for this novel procedural form is that “[t]he Agency is subject to an order of the United States District Court for the District of Columbia entered in Natural Resources Defense Council v. Train, et a 1. (Cv. No.1609-73) which requires the promulgation of regulations for this industry category no later than March 15, 1976.” 41 Fed. Reg. 13004. The regulations deal only with certain processes of the iron and carbon steel and specialty steel (ferroalloy and stainless steel) industries, namely forming and finishing processes, and with certain steelmaking processes within the specialty steel industry. An earlier phase (“phase I”) of the regulations, published “on June 28, 1974, dealt with steelmaking processes within the iron and carbon steel industries. This court considered the latter regulations in American Iron and Steel Institute v. EPA (AISI I), 526 F.2d 1027 (3d Cir. 1975), and remanded them to the EPA for reconsideration in certain respects. I. Some petitioners have argued that the “interim final” regulations are invalid because they were not promulgated in accordance with the Administrative Procedure Act. The relevant procedural history may be outlined as follows. Since November 15, 1973, the EPA has been under order of the district court for the District of Columbia, in Natural Resources Defense Council v. EPA to promulgate regulations governing the processes of the iron and steel industry covered by the present regulations. The EPA was originally under order to promulgate these regulations in 1974, but it has asked for and received several extensions of the deadlines. On August 21,1975, the EPA published in the Federal Register “advance notice of intent to propose and promulgate effluent limitations and guidelines for existing sources.” 40 Fed.Reg. 36708. The notice of “proposed rulemaking” (ANPR) then proceeded to list the subcategories of the industry for which tentative regulations were being set forth. The EPA engaged in extensive reevaluation and revision of the tentative limitations and guidelines after they were published, partly in response to substantial sentiment within the agency that they were too lenient. The EPA did not, however, propose the revised regulations for further notice and comment. It also stipulated that the interim final regulations would be effective immediately, and thus did not allow the 30 day interval between publication date and date of effectiveness usually required by the APA. 5 U.S.C. § 553(d). The regulations contain a statement that, due to the pendency of the court order and the need to expedite the effectuation of the Act, the Agency had determined that it was “impracticable and contrary to the public interest” “to develop and publish regulations ... in proposed form [and] to provide a 30 day comment period.” The Agency also stated that there was “good cause ... for these regulations to become effective immediately upon publication.” 41 Fed.Reg. 13004. Petitioners in Nos. 76-1386, 76-1757 and 76-2176, (“the Companies”) — who are steel companies and the American Iron and Steel Institute — have made two challenges to the validity of the “interim final” regulations under the APA which require discussion. They first argue that any regulations governing specialty steel are invalid because the ANPR failed to give sufficient indication that the Agency was considering regulations as to the specialty steel segment of the industry. This court delineated -the purposes of the APA’s notice and comment requirement in Texaco, Inc. v. FPC, 412 F.2d 740, 744 (1969): “Section 553 was enacted to give the public an opportunity to participate in the rule-making process. It also enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” In evaluating the Companies’ contention that the ANPR was insufficient to enable the public to effectively participate in the rule-making process, we must determine whether the notice given was “sufficient to fairly apprise interested parties” of all significant subjects and issues involved. Senate Rept. No. 752, 79th Congress, 1st Session, at 16 (1945). The adequacy of the notice as to specialty steel really encompasses two questions: whether there was adequate notice that the making of specialty steel would be covered by the regulations, and whether there was adequate notice that the forming and finishing of specialty steel would be covered by the regulations. With respect to the forming and finishing of specialty steel, the ANPR set forth “Proposed Effluent Guidelines and Standards” for the “Iron and Steel Manufacturing Point Source Category.” As noted above, the EPA was making regulations under order of the court in Natural Resources Defense Council v. EPA. In ordering the EPA to make regulations, the court listed various “categories”: while category 19 was “Iron and Steel Manufacturing”, category 23 was “Ferroalloy Manufacturing” — what we have called specialty steel. Thus, an interested person who read that the EPA was giving advance notice of intent to promulgate regulations for the “Iron and Steel Manufacturing Point Source Category” would be misled into thinking that regulations for “Ferroalloy Manufacturing” were not involved. This misimpression would be fostered by the fact that the ANPR said that “[i]n developing the requisite data to support effluent limitations, guidelines and standards EPA commissioned a study and report entitled ‘Development Document for Effluent' Limitations Guidelines and New Source Performance Standards — Iron and Steel Industry: Hot Forming and Cold Finishing Segment’ prepared by Cyrus Wm. Rice Division, NUS Corporation.” The EPA had commissioned an entirely separate study of the specialty steel industry — by Datagraphics, Inc. Our conclusion that the ANPR would not apprise an interested person that the specialty steel industry would be covered by the regulations on forming and finishing processes applies a fortiori with respect to the portions of the interim final regulations which deal with the making of specialty steel. The ANPR gave no indication that the Agency intended to make any regulations on steelmaking, whether in the carbon steel or specialty steel industry: all the enumerated subcategories of the “iron and steel manufacturing” industry pertained to processes other than steelmaking. The interim final regulations, however, do contain regulations governing three processes by which specialty steel is made. Since the ANPR gave no indication that the regulations would deal with steelmaking, an interested person would not be able to make comments which could assist the EPA in formulating these regulations. EPA argues that even if the ANPR was insufficient to apprise an interested person that specialty steel would be covered by the regulations, the regulations may be upheld under an exception to the APA’s notice and comment requirement. 5 U.S.C. § 553(b) says that: “General notice of proposed rule making shall be published in the Federal Register . . Except when notice or hearing is required by statute, this subsection does not apply . (b) when the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.” This exception is to be narrowly construed. As is stated in the Senate Report on a precursor of the final APA: “Impracticable” means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings “Public interest” supplements the terms “impracticable” or “unnecessary”; it requires that public rule-making procedures shall not prevent an agency from operating and that, on the other hand, lack of public interest in rule making warrants an agency to dispense with public procedure. Senate Rept. No. 752, 79th Congress, 1st Session at 16. (1945) In arguing that it was “impracticable and contrary to the public interest” to provide notice and an opportunity for comment, the EPA relies chiefly on the fact that it had been ordered to promulgate regulations by March 15, 1976 by the'court in Natural Resources Defense Council v. EPA. But we find this argument unconvincing. The EPA had been under order to promulgate regulations for the specialty steel industry since November 15,1973, and it received its contractor’s study of the specialty steel industry in January, 1974. So EPA was aware of the necessity for rapid promulgation of the limitations on specialty steel in November of 1973, and had the basic contractor’s study in January of 1974. But the interim final regulations were not published until March of 1976. Moreover, the ANPR did in fact contain detailed tentative regulations on the forming and finishing of iron and carbon steel, a subject on which EPA had obtained its contractor’s report in July of 1974 — 6 months after it received its contractor’s report on the carbon steel industry. Under these conditions, EPA has failed to show that it may be exempted from the APA’s usual requirement of notice and comment. In sum, EPA may not be exempted from the APA’s rulemaking requirement of notice and comment, and it has failed to give adequate notice that the interim final regulations would govern the specialty steel industry. The interim final regulations are thus invalid insofar as they apply to the specialty steel industry. Apart from their challenge to the regulations concerning specialty steel, the Companies also allege that the ANPR did not give sufficient indication of the following two issues: “(1) whether filtration and tight recycle (the ‘10/10/5 model’) are practicable for the steel industry to construct and operate by July 1, 1977 and (2) if so, the treatment levels achievable by such technology.” The history behind the adoption of the 10/10/5 model is as follows. After the ANPR was published, the EPA, in its internal review of the tentative regulations found that: “there were substantial errors in the limitations. The advance notice was improperly biased; costing inaccuracies caused an invalid comparison between clarifier and filter technologies; plants had already installed both filtration and recycle technology; and, generally, both BPT and BAT were set at improperly low levels, levels at which a quarter of the Nation’s steel production would already be at BAT, with many more facilities at BPT ...” EPA’s Brief at 90. The Agency’s response was to make the regulations substantially more stringent. The Companies especially question the use of “filtration and tight recycle” technology, which is used in Subparts M (hot forming-primary subcategory), N (hot forming-section subcategory), 0 (hot forming-flat subcategory and P (pipe and tubes subcategory). We agree with the court in International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 428, 478 F.2d 615, 632 n.51 (1973), that the submission of a proposed rule for comment does not of necessity bind an agency to undertake a new round of notice and comment before it adopts a rule which is different — even substantially different — from the proposed rule. As we have noted above, the adequacy of the notice must be tested by determining whether it would fairly apprise interested persons of the “subjects and issues” before the Agency. Judged by this standard, we conclude that the ANPR was sufficient to apprise interested persons of the issues involved in the EPA’s decision to adopt more stringent treatment technologies than had been embodied in the ANPR. The Companies’ concern is focussed on the EPA’s determination that recycling and filtration technology is BPCTCA with respect to some forming and finishing subcategories. These techniques, as we have noted, are prescribed as BPCTCA for Subparts M through P of the industry, and the control technology specified for these subcategories is similar. The chief pollutants produced by all four processes are suspended solids, oil and grease. The interim final regulations specify that the first step of the BPCTCA for all four processes is a primary scale pit — a settling unit — with oil skimming equipment applied to the effluent in the scale pit. This was also specified as the first step of the BPCTCA in the ANPR. The interim final regulations specify that after the scale pit, part of the effluent is recycled for use in the steel making process; this is one of petitioners’ points of concern. The interim final regulations state that the remaining effluent in the scale pit goes to a clarifier; the use of a clarifier was also specified in the ANPR. The underflow from the clarifier is to be vacuumed filtered, as the ANPR had also stated. Finally, the overflow from the clarifier is filtered and discharged. The use of filtration is a second point of concern to petitioners, and is peculiar to the interim final regulations. We conclude that the ANPR was sufficient to apprise interested persons that there was an issue as to whether recycling of partially clarified effluent was BPCTCA. In the first place, the suggested BPCTCA in the ANPR regulations for three of the four subcategories of the industry here involved — N, O and P — include some recycling of effluent. Moreover, in surveying the treatment technology currently in place in existing plants, the ANPR notice mentioned recycling with respect to all subcategories of the iron and steel industry for which the interim final regulations later specified recycling as part of the BPCTCA. An interested person thus should have been aware that recycling was potentially a significant component of the ultimate regulations as to BPCTCA. The use of filtration upon the overflow from the clarifier presents a closer question, since the ANPR did not suggest that filtration of the clarifier overflow would be part of the BPCTCA for any of the hot-forming subcategories (Subparts M, N and 0) or the pipe and tubes subcategory (Subpart P). Nevertheless, we conclude that the notice was sufficient, since, as with the use of recycle, the ANPR did inform the public that high rate filtration technology was already in place in plants in those of three subcategories (M, N and 0). With respect to the meaning of BPCTCA, the Senate Report to the bill which ultimately became the Federal Water Pollution Control Act Amendments of 1972 said that: “[T]he Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category.” Senate Report No. 92-414, 92d Congress, 1st Session (1971), p. 50. The statements in the ANPR that “a few plants will have high rate filters to treat either scale pit or clarifier effluents”, and that the “range of treatment technology currently practiced in existing plants includes all the items discussed above” — including the use of high rate filters — may not be a full statement that the plants now employing filter technology within each subcategory of the industry are “of various sizes [and] ages.” But this is little more than to say that EPA had not yet determined that filtration was BPCTCA when it published the August notice. The notice does fairly apprise interested parties that there was an issue as to whether filtration was BPCTCA because it states that some of the best existing plants use filters. In sum, we conclude that the use of the 10/10/5 model did not violate the APA’s requirement of notice and hearing. Pennsylvania’s Department of Environmental Resources, (“Pennsylvania”) the Petitioner in No. 76-1751, questions the sufficiency under the APA of the Agency’s decision to exempt plants in the Mahoning River Valley region of Eastern Ohio “from the effluent limitations based on best practicable control technology currently available.” We need discuss only two of Pennsylvania’s arguments: 1) that the EPA did not provide notice and an opportunity for comment on the special treatment afforded plants in the Mahoning Valley 2) that adequate judicial review of the Mahoning Valley exemption is precluded by the EPA’s failure to include a “concise general statement of [the] basis and purpose” of the action as required by the APA. 5 U.S.C. § 553(c). 1. The interim final regulations state that: The relief granted from severe economic impact in the Mahoning River Valley region, which impact is likely to occur absent such relief, is the exemption of point sources located within that region from the effluent limitations based on best practicable control technology currently available. Nevertheless, the Agency fully expects that authorities granting permits, pursuant to section 402 of the Federal Water Pollution Control Act, as amended, shall not allow point sources in that region to discharge pollutants in any greater amounts than are currently being discharged by those sources. 41 Fed.Reg. 12995. The only indication in the ANPR that such an action might be taken is the following: One commenter has claimed that the proposed guidelines will result in the loss of 12,000 jobs from the steel employment in the Mahoning River Valley region. Furthermore, the commenter asserts that “there is ample justification for adding to the guidelines, a subcategory based on the age of the facility.” The Agency intends to secure and evaluate additional information on possible economic impacts in this region and would consider revision of the regulations if the information appears to warrant this action. 40 Fed.Reg. 36723. Pennsylvania argues that in reading the language “would consider revision of the regulations” an interested member of the public might well come to the conclusion that the EPA would not consider whether to give Mahoning Valley special treatment until the rulemaking then noticed had already been completed. Thus, the public could well have been misled into thinking that comments on the Mahoning Valley question were not appropriate during the present rulemaking proceedings. Pennsylvania’s argument hinges on the meaning of the word “regulations” in the ANPR. If the word refers to the regulations to be promulgated at the end of the noticed rulemaking, then a member of the public might indeed be misled into thinking that he should defer comment on the Ma-honing Valley question. On the other hand, if the word refers to the regulations then proposed, a member of the public would be on notice that immediate comment was appropriate. We note that the ANPR states that “[t]he regulations set forth below when promulgated will amend 40 CFR, part 420.” 40 Fed.Reg. 36708 (emphasis added). This, read in conjunction with the statement that the EPA would consider revision of the “regulations” to take account of any special conditions in the Mahoning Valley would indicaté that immediate comment was appropriate. Thus, we conclude that there was sufficient notice to “fairly apprise” the public that the Agency might afford special treatment to facilities in the Mahoning Valley. We confess, however, that the language in the ANPR is hardly a model of clarity. 2. Pennsylvania has also argued that the Mahoning Valley exemption is invalid because the EPA did not give a “concise general statement of [the] basis and purpose” of the action as required by the APA. 5 U.S.C. § 553(c). This argument is meritless. The interim final regulations state that: Tentative analysis of the available data leads to the conclusion that conditions in the Mahoning River Valley region are unique with respect to the physical and geographical characteristics of the region, physical and operating characteristics of the facilities located therein, and the importance of the facilities to the economy of the region. Tentative analysis of the available data and the consultant’s evaluation thereof appears to support the contention that mandatory compliance with effluent limitations guidelines which do not take into account these factors is likely to result in severe economic dislocation within the Mahoning River Valley region. In addition to similar economic disadvantages resulting from age and size characteristics, facilities in the region appear to share economic disadvantages caused by locational characteristics. These include the movement of markets away from the region, constrained access to raw materials due to the unavailability of waterborne transportation and required transshipment by rail, and space limitations which prohibit major expansion of existing facilities. 41 Fed.Reg. 12994. This statement is clearly sufficiently detailed to allow for “searching judicial scrutiny.” Amoco Oil v. EPA, 163 U.S.App.D.C. 162, 179, 501 F.2d 722, 739 (1974). II. We now turn to the issues raised by the various petitioners as to whether the EPA has properly carried out its functions under the Water Pollution Control Act. The Companies argue that the regulations are invalid because they specify only a maximum permissible level of éffluent discharge, and do not indicate a range of permissible effluent levels by providing guidelines as to how much more severe controls may be required of any particular plant by the authority granting a pollution discharge permit under § 402 of the FWPCA. The argument thus raises questions as to the proper relation between § 301, which is the Agency’s authority for promulgating specific effluent limitations requiring application of BPCTCA, and § 304, which directs the Agency to “specify factors to be taken into account in determining the control measures and practices applicable to point sources.” The Companies rely chiefly on this court’s decision in AISI I which held EPA’s regulations on iron and carbon steelmaking processes invalid because they failed to provide guidelines “to guide the permit-issuing authorities in deciding whether, and by how much, the limitation to be applied to any individual point source is more stringent than the base level.” 526 F.2d at 1045. Since briefing and oral argument in this case, however, the panel in the earlier case has granted a motion to recall its mandate, and has held that the EPA may specify a maximum permissible level of effluent discharge without providing guidelines as to how permit issuers are to select more stringent levels of control. American Iron and Steel Institute v. EPA, slip opinion (July 29, 1977). This court now stands with the other courts of appeals which have considered this question. See Hooker Chemicals v. Train, 537 F.2d 620 (2d Cir. 1976); American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107 (1976); FMC Corporation v. Train, 539 F.2d 973 (4th Cir. 1976); American Petroleum Institute v. E. P. A., 540 F.2d 1023 (10th Cir. 1976). The holding of the prior panel on the motion to recall its mandate is binding upon us, and requires that we reject contentions. Consequently, we need not engage in any discussion of the merits of these contentions. III. The Companies have also argued that EPA did not properly evaluate the costs and benefits relevant to identifying the BPCTCA. In evaluating these arguments, we must follow the familiar standards governing judicial review of agency action under the APA. § 706 of the APA provides that “[t]he reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ” As the Supreme Court said in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), an agency’s “decision is entitled to a presumption of regularity, (citations omitted). But that presumption is not to shield [its] action from a thorough, probing, in-depth review.” In conducting this review, we will not overturn agency action because the underlying reasoning is not fully set forth, if we can fairly discern the basis for the action. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-6, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). But the touchstone of our review, both as to the Agency’s consideration of the issues and the factual predicates of this consideration must be the administrative record. In deciding to accept or reject petitioners’ contentions we must look “to the record that was considered by the agency — not to post hoc rationalizations of counsel or even agency members and not to evidentiary materials that were not considered by the agency.” Dry Color Mfrs. Assn., Inc. v. Department of Labor, 486 F.2d 98, 104 n.8 (3d Cir. 1973). Section 304(b) of the FWPCA, as amended, states that, in assessing the BPCTCA, the EPA must consider: . the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact . ., and such other factors as the Administrator deems appropriate. As this court noted in AISI I, Senator Muskie, the Chairman of the Senate Subcommittee on Air and Water Pollution, stated in support of the House-Senate Conference Committee Report: . The balancing test between total cost end effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources. The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to assess water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community. Another factor which lead the court in AISI I, 526 F.2d at 1052, to conclude that “the Administrator must have broad discretion in weighing the costs and benefits” is the following passage from the Senate Report which discusses § 302 of the Act — where a more specific cost-benefit analysis is required than with § 304: The Committee recognizes that no mathematical balance can be achieved in considering relative costs and benefits nor would any precise formula be desirable, but in each case the Administrator or the State will be able to determine whether there is any reasonable connection at all between the costs which a particular effluent limitation would impose and any benefits (including the attainment of natural water quality) which might be derived. 1. The Companies have argued that the interim final regulations are invalid because the EPA failed to reach any final conclusion as to whether the costs of compliance are justified by the benefits. But the record shows that the EPA did investigate the harmful effects of the various pollutants from iron and steel facilities. Moreover, the Agency calculated the contribution of selected additional levels of technology to eliminating the discharge of the various pollutants, and compared this contribution to the costs of these technologies. The Companies claim that this procedure was an “intellectual fraud” since, as the Agency expressly warned, inferences could not be drawn as to the cost-effectiveness of levels of treatment other than those which the Agency had selected to present. But given the EPA’s “broad discretion” in weighing costs and benefits, and the fact that the Agency did evaluate several treatment technologies within each category, we conclude that the regulations are not invalid on the grounds that the Agency did not properly evaluate the cost effectiveness of possible treatment technologies. 2. The Companies have also argued that the EPA failed to properly consider the factors relevant to determining how the iron and steel industry should be broken down into subcategories, prior to identifying the BPCTCA for each subcategory. EPA’s methodology may be described as follows. The Agency took a survey of existing treatment facilities and their performances to develop a list of the best plants: the list was ultimately narrowed to 68 plants with 111 operations of various ages, sizes, unit processes and in-place treatment technologies. The industry was studied “for the purpose of determining whether separate limitations are appropriate for different segments within the category.”. 41 Fed.Reg. 12990. The following factors were considered in determining possible subcategorization of the industry: manufacturing processes and equipment, products, raw materials, wastewater characteristics, waste treatability, gas cleaning equipment, size and age, land availability (location), and process water usage. The EPA ultimately determined that “[t]he individual processes, products, and the waste-water characteristics comprise the most significant factors in the categorization” of the industry, but also concluded that some of the other factors were helpful in supporting its subcategorization on the basis of the above factors. For example, with respect to the relevance of process water usage, the interim final regulations state that: Examination of the available data indicates that within well defined ranges process water usage can be directly correlated to the various manufacturing operations. This correlation verifies the basis of the subcategorization scheme by manufacturing processes. Differences in scale (see size factor) of a categorized manufacturing process was considered. The results indicated that on a per ton of steel basis, process water usage is not dependent upon the scale of the manufacturing operation. It was observed though, that much larger volumes of process cooling water are generally required to cool the hot forming machinery than that which is needed for the cold forming operations, thus further substantiating the subcategorization by manufacturing process. Considerations of age, location and raw materials revealed no discernible differences in process water usage. Process water usage parallels the subcategorization by final product considerations (see final products factor) where data revealed that for particular product requirements well defined manufacturing processes must be employed. 41 Fed.Reg. 12993-4. On the other hand, the EPA found that some of the factors considered were not useful bases for subcategorization. As to size and age, the interim final regulations state: Plant size and age, per se, are not viable factors for subcategorization of the iron and steel industry. Information compiled during this study and previous steel industry investigations do not reveal any discernible relationship between these factors and raw waste loads, effluent quality, treatability, or any other basis for subcategorization. Although specialty steel plants do tend to be smaller than carbon steel plants, the type of steel produced has a greater impact on the waste loads and water use than does the size per se. Size was considered as a possible factor for subcategorization but from analysis of the compiled data size, per se, does not justify categorization. Throughout the steel industry mills vary greatly in physical size, layout and product size. However, these considerations revealed no relationship to process water usage, discharge rate, effluent quality or any other pertinent factors. Age as a factor might be expected to be at least amenable to quantitative identification and interpretation, but the extensive investigation of the industry does not indicate that age alone is a factor. The steel industry is old. Some of the old mills still incorporate early operating ideas and practices. However, other old mills are very new in that they have incorporated the latest operating ideas and practices. Nevertheless, most older mills have been updated by internal changes in process, design, and equipment. Therefore, to say that a mill was built 50 years ago and is 50 years old is not particularly meaningful in terms of interpreting mill practices. In particular, no consistent pattern between mill age and raw waste characteristics was found. 41 Fed.Reg. 12993. Contrary to the Companies’ contentions, we believe that these passages in the interim final regulations, and others appearing at 41 Fed.Reg. 12992-5, demonstrate that the EPA did consider subcategorizing the iron and steel industry on the basis of factors other than manufacturing processes. Moreover, the Companies have not suggested that the record shows that there is an insufficient factual basis for the EPA’s treatment of the subcategorization question. As EPA concedes, the chosen subcategorization — like any subdivision of the industry — does not take into account all of “the innumerable differences within the particular subcategories.” AISI I, 526 F.2d at 1046. But this does not in itself imply that the EPA has failed to properly exercise its functions under the FWPCA. We must, however, agree with the Companies’ contention that, to the extent it considered age as a relevant factor, the EPA did not consider age as it might pertain to the cost or feasibility of retrofitting plants with new pollution control technology, as required by this court’s decision in AISI I, 526 F.2d at 1048. As in the previous case, the interim final regulations recite that the EPA has found that age per se is not relevant to factors such as type of pollutants produced. But the EPA has not specifically found that age has no bearing on the cost or feasibility of retrofitting plants with pollution control technology, and a finding on this issue is mandated by our earlier decision. The interim final regulations recite that the concept of plant age is not amenable to interpretation because “most older mills have been updated by internal changes in process, design, and equipment. Therefore, to say that a mill was built over 50 years ago and is 50 years old is not particularly meaningful in terms of interpreting mill practices.” In its brief, EPA suggests that this is a sufficient answer to the retrofit question: age has little or no bearing on retrofit because the concept of plant age itself is difficult to define. Were we writing on a clean slate, we might find this argument convincing. But since the facts in this case cannot be properly distinguished from the facts in the earlier case we must reject EPA’s contention. The discussion of the bearing of age and size in the interim final regulations does not differ in material respects from EPA’s discussion of this issue in the regulations which were reviewed in the previous case. Compare 39 Fed.Reg. 24116 with 41 Fed. Reg. 12993, 13002. EPA argues that new data submitted to it after the earlier regulations were remanded “substantiates [its] conclusion and obviates the need for further investigation.” But again, the interim final regulations do not expressly address the retrofit problem. EPA also argues that a study by Arthur D. Little, Inc., which was commissioned by AISI, reinforces the Agency’s findings, since this study states that: “[i]n the iron and steel industry it is difficult to define the age of a plant, because many of the unit operations were installed at different times and are also periodically rebuilt on different schedules. Thus, by definition, the age of steel facilities should offer only limited benefits as a means of categorizing plants for purposes of standard setting or impact analysis.” But the Companies are not bound to accept the conclusion that age is not relevant to cost or feasibility of retrofit merely because of any conclusion contained in a report commissioned by AISI. They have a right, under our earlier decision, to a finding on the retrofit question by the EPA. We note, however, that we have not dismissed the EPA’s resolution of the retrofit question on the merits: we merely require that the Agency reexamine the relevance of age specifically as it bears on retrofit. As this court said in AISI I, 526 F.2d at 1048: “[i]f [EPA] concludes on remand that age is not relevant to the cost or feasibility of retrofitting plans [sic], as well as to the processes and treatment system, that conclusion will be valid to the extent it is supported by the record.” We note that the reconsideration of the bearing of age on the cost or feasibility of retrofitting plants shall include consideration of standards setting within subcategories as well as altered subcategorization. 3. The Companies have also questioned the EPA’s approach to determining BPCTCA within the subcategories. After EPA had decided upon a subcategorization of the industry, it determined the BPCTCA for each of these subcategories by calculating the average waste load at the exemplary plants, and “visualizing]” a treatment model for attaining the calculated effluent load. In visualizing a treatment scenario, the EPA arrived at a projected effluent flow, given an “achievable” concentration level. But it is important to emphasize that the interim final regulations do not require the use of treatment technologies with these particular flow and concentration levels. Indeed, the industry is free to employ any treatment technology it chooses, as long as this technology enables the industry to attain the prescribed level of effluent load. The Companies insist that determining BPCTCA by arriving at a maximum permissible load of effluents and “visualizing” a control technology which would meet these limitations is working backward: they argue that EPA should have first examined the technology in existence and then estimate how much this technology can contribute toward cleaning up effluent. We must reject this argument. In the first place, in visualizing control technologies, EPA specified measures which it had found were used in plants in each subcategory. We do not mean to imply that the EPA is always bound to select technologies already in place for BPCTCA: indeed, the legislative history of the FWPCA would seem to indicate that the EPA is not so restricted. But the fact remains that the EPA did select technology already in place in some plants for BPCTCA. Moreover, the EPA performed a cost-benefit analysis on the technology it selected through the challenged procedure, and this is ultimately what is required by the FWPCA. As long as EPA has performed the cost-benefit analysis required by the Act, and has selected a type of technology which may, under the Act, be a BPCTCA, it is irrelevant that it selected the BPCTCA by visualizing a control technology that would achieve desired effluent limitations. The Companies also argue that the EPA’s approach of determining the BPCTCA after calculating the average effluent load at the best plants in each subcategory “permitted [it] to derive limitations from effluent samples without analyzing how these particular treatment levels could be achieved at other plants, or investigating why they were not being [met] by other plants.” But this argument really amounts to a claim that it was “necessarily an abuse of discretion to base the regulations on results obtained from a few plants which were using the best technology” — a claim which was rejected in AISI I, 526 F.2d at 1057. It is true that as long as EPA focuses only on some plants in each subcategory there is a possibility that some differences between plants in the subcategory may be ignored: not all plants within a subcategory are perfectly typical of all plants within the subcategory — even once the industry has been subcategorized in a permissible manner. But petitioners have not made an adequate showing that the plants EPA surveyed do not constitute an adequate sampling of the subcategories they represent. 4. The Companies assert that the EPA’s cost estimates are defective because they fail to take into account costs for such factors as land acquisition, site clearance, utility interconnection between battery limits and process equipment, sales and use taxes, freight charges, supporting utility requirements such as boilers, instrumentation other than that for pH and fluoride control, and safety systems. They also stress that the Agency’s assumptions as to the characteristics of the sites on which plants are located were unrealistic, and that these assumptions thus caused the Agency’s cost figures to be inaccurate. EPA argues that the Companies’ contention is satisfactorily disposed of by the following passage from this court’s opinion in AISI I: A troublesome question is presented by petitioners’ contention that the costs estimated by the Administrator were artificially low because certain factors were excluded. Petitioners point to the fact that the Final Development Document listed several factors which admittedly affected costs, but which were excluded from the cost analysis. Petitioners contend that these factors, which include such things as land acquisition and site clearance costs, generate costs which are as large as those which the Administrator included in his estimates. However, petitioners have pointed to no data which would support their allegation as to the magnitude of these excluded costs factors. Furthermore, many of these factors were excluded because they were inherently site-specific or because they could not be evaluated. For these reasons, we do not believe we can conclude that the exclusion of these factors from the costs analysis was arbitrary or capricious. 526 F.2d at 1053. (footnotes omitted). The present case, however, is different from the situation presented in AISI I in two significant respects. First, the Companies have pointed to record data in the EPA’s study of plants in Ohio’s Mahoning River Valley which substantiates their claim that these costs are indeed significant. Second, as to whether the costs in question can be evaluated, EPA has presented in its brief a procedure for comparing its “generous” estimates of cost factors other than site-specific factors with the actual total (including site-specific) costs of reporting plants which meet or exceed the BPCTCA standards. • The EPA also argues that its treatment of site-specific costs was adequate because it did in fact include an adequate allowance for these costs. The ANPR states that: The most accurate way to determine the water pollution control facility costs and the site specific costs would be to calculate these costs for each operation at each of the many mills and plants. Such a determination is far beyond the scope of this ’effort and thus a method approximating these costs was developed. The contractor was conservative in estimating both the treatment facilities required to achieve the effluent quality and the cost of these facilities. This is borne out by the data submitted by the companies, relative to the plants visited which were meeting the proposed guidelines (Forming and Finishing Segment), shows that these plants on the average experienced total installation costs (Facility costs plus site-specific costs) and annual operating costs less than the facility costs alone (i. e., not including site specific costs) or the operating costs as estimated by the study contractor. For this analysis actual costs reported were adjusted to August 1971 dollars to be consistent with the costs used by the study contractor. An adjustment was made also to achieve consistency in the production capacity of the actual facility and the typical facility for which the treatment models were costed out. 40 Fed.Reg. 36724. But while EPA asserts that its contractor’s cost estimates were, on the average, adequate to cover site-specific factors, we are not directed to record evidence which would permit us to verify that the Agency actually employed the procedure set forth in its brief or another procedure to compare its model cost estimates with the actual total (including site-specific) costs of reporting plants which meet or exceed the BPCTCA standards. Indeed, EPA’s brief demonstrates that in several subcategories, the costs predicted from the model diverge significantly from the actual cost data from reporting plants. The case will thus be remanded for appropriate consideration of the factors originally not included by the Agency. See EPA’s Development Document for the Interim Final Regulations at 526-8. To the extent that the sufficiency of the allowance for certain factors which were excluded may not be adequately checked using the procedure presented in EPA’s brief or another procedure, the Agency may continue to exclude these factors. 5. The Companies contend that the EPA did not adequately consider the industry’s ability to find the funds necessary to install and operate the pollution control equipment required to achieve the effluent limitations specified in the interim final regulations. As EPA states in its brief, its analysis of the economic impact of its regulations is based upon its analysis of a study by Temple, Barker and Sloane, Inc. (TBS). The following data from the TBS report indicates the magnitude of the burdens EPA’s regulations will impose on the industry. Long run (1975-83) capital expenditures required to comply with the BPCTCA regulations now under review total $1.39 billion [all figures in 1975 dollars]; $0.96 billion will be required for operations and maintenance of this equipment over the same period. On the other hand, the capital for capacity expansion and modernization sufficient to meet anticipated steel shipment requirements and to be able to operate at planned levels of utilization comes to $27.50 billion over the period 1975-83. Revenues required to comply with the BPCTCA effluent limitations in the present regulations come to $2.59 billion for the period 1975-83, while $338.61 billion will be needed for baseline requirements associated with the production of iron and steel. TBS anticipates that $1.11 billion of the revenues required over the 1975-83 period to finance pollution control must come from external sources of funds, while $12.99 billion in external financing will be needed for baseline expenditures associated with iron and steel manufacturing. The extent of the burden imposed upon the industry is underscored by TBS’ statement that: “[d]uring the last decade the steel industry has depended upon external sources for less than $1.0 billion . . . Thus, the steel industry must attract significant amounts of capital to finance expansion and modernization of steel operations after more than a decade of negligible financing activity. Environmental regulations will increase these financing requirements.” Moreover, TBS noted that the industry’s ability to attract sufficient capital was diminished by the fact that: . the industry’s level of profitability has seriously lagged the average of all manufacturing with the exception of 1974 when the relaxation of price controls and worldwide shortages of both steel and basic raw materials enabled the steel industry to raise its prices and fully utilize its productive capacity. Overall steel industry rates of return in 1974 equalled the all-manufacturing average, with natural resources extraction and some non-steel activities (e.g., chemicals) far exceeding the returns on steel operations. Over the last decade, however, the steel industry’s rate of return on common equity has averaged one-half of that for all manufacturing firms when profitability is adjusted to reflect inflationary trends. The Companies have made several challenges to the Agency’s consideration of the financing problem. But we need consider only one: that the Agency relied on a February draft of the TBS report, which contains significant differences from the report dated as of March — the month in which the interim final regulations were promulgated. The February draft states that: [I]t is TBS’s opinion that the steel industry would be unable to finance its expansion, modernization and pollution control requirements without earning an adequate return on common equity at least equal to that realized by steel firms overall. Difficulties in financing these needs would be eased further if steel firms could achieve a return equal to other manufacturing firms, (emphasis added) On the other hand, the March report states that: “[i]t is TBS’s opinion that the steel industry will be unable to finance its expansion, modernization and pollution control requirements without earning a rate of return on common equity at least equal to those realized by other manufacturing firms.” (emphasis added) As EPA concedes before this Court, the “projected average nominal return on equity for the steel industry equals 72% of the projected average nominal return on equity by the manufacturing sector as a whole.” Thus, we cannot consider the difference between the February draft of the TBS study and the March report merely as a change in emphasis or of verbal shading. Nor can we consider the subject of the conditions under which the industry can meet all of its financing needs as peripheral to TBS’ basic conclusions. Thus, unless the differences between the drafts of the TBS report are irrelevant because EPA made a sufficient independent assessment of the financing problem, or unless we can infer that the EPA was aware of and considered the March report, we must remand the matter to the Agency for reconsideration of the financing problems raised by the interim final regulations. If the Agency based its assessment of the financing problem in substantial part on the assumption that it had the benefit of TBS’ expertise in evaluating the problem, and it did not in fact have the benefit of TBS’ ultimate conclusions, the regulations must be viewed as having been promulgated under a misimpression going to the heart of the Agency’s exercise of discretion. As to whether the EPA did make a sufficient independent assessment of the financing problem, it is important to note the following disclaimer in the March TBS report: This report is being released and circulated at approximately the same time as publication in the Federal Register of a notice of proposed and interim final rule making under sections 304(b) and 306 of the Act for the subject point source category. The study is not an official EPA publication. It will be considered along with the information contained in the Development Document and any comments received by EPA on either document before or during rule making proceedings necessary to establish final regulations. Prior to final promulgation of regulations, the accompanying study shall have standing in any EPA proceeding or court proceeding only to the extent that it represents the views of the contractor who studied the subject industry. It cannot be cited, referenced, or represented in any respect in any such proceeding as a statement of EPA’s views regarding the subject industry. Moreover, the Agency has argued before us that it “not only reviewed the TBS text but also analyzed the underlying data which remained unchanged.” However, several factors lead us to conclude that EPA did rely in substantial part on TBS’ expertise in evaluating the industry’s financing problem, and not simply on the data contained in the report. In the first place, EPA itself belittles the “standard” disclaimer contained in the March TBS report. Moreover, after completing a survey of the conclusions (rather than merely the data) contained in the March report, EPA’s brief states that “[t]he soundness of the TBS report and the Administrator’s reliance thereupon are clearly supported in the record.” We also note that the “Summary Economic Analysis of Effluent Guidelines for the Integrated Iron and Steel Industry” dated February 6,1976, which was the last full discussion of the financing problem actually prepared by the Agency, states that: “[t]he summary of economic effects that follows is prepared from preliminary results [of the TBS study] . This report summarizes the study in terms of the effects of the effluent guidelines on internal and external costs.” The “Summary Economic Analysis” states that its “baseline assumption” is that the industry will be able to earn “approximately a 9% return on stockholder equity.” As the Agency itself notes, the 9% figure is the projected rate of return on equity for the steel industry, (the rate stressed in the February TBS draft) rather than the manufacturing sector as a whole. In sum, we conclude that the EPA did rely on TBS’ expertise in evaluating the extent of the financing burden imposed by the interim final regulations. But we cannot infer that EPA ever received or considered the contents of the March draft of the TBS report. The Agency’s own “Summary Economic Analysis,” as we have noted, is dated February 6, 1976. Moreover, the interim final regulations state that: Studies of the economic impact of these regulations are under way and will be reported in the near future as separate reports entitled “Economic Analysis of Effluent Guidelines, Iron and Steel Industry” and “Economic Analysis of Effluent Guidelines, Specialty Steel Industry”. 41 Fed.Reg. 13001. The March TBS report is entitled “Economic Analysis of Proposed and Interim Final Effluent Guidelines, Integrated Iron and Steel Industry.” The matter is remanded to the Agency for reconsideration of the financing problems raised by the interim final regulations. 6. The Companies argue that the EPA did not adequately consider the evidence that combined treatment of waste streams (“central treatment”) should be adopted as BPCTCA. The interim final regulations state that: The comment has been made that these limitations require individual waste treatment facilities at each operating unit and prohibit the use of central waste treatment facilities which are more economical to construct and to operate. Central treatment facilities typically provide for equalization, neutralization, solid removal, and sludge dewatering. Other pollutants requiring removal are usually more efficiently and economically controlled or recovered by a pretreatment step applied to the segregated stream. These regulations have been constructed so as to permit a discharger to apply either approach. In the event that waste streams from various sources are combined for treatment or discharge, the quantity of each pollutant or pollutant property attributable to each controlled waste source (subcategories M through V) shall not exceed the specified limitation for that particular waste source. For example, if a plant’s production allows it to discharge 5 lbs. a day of tin from its terne plating operation, it would not be allowed to discharge 10 lbs. a day of tin because the terne line wastes were combined with cold rolling wastes for treatment. However, in the instance of the use of pickling wastes to assist in the breaking of emulsified oils from cold rolling wastes, some added waste load discharges are permitted by the regulation. The cost savings that could be achieved by the use of one waste stream to treat another waste stream was considered sufficient to justify permitting additional loads to be discharged. 41 Fed.Reg. 13002. The nature of EPA’s decision with respect to central treatment can fairly be inferred from this passage. EPA recognized that the use of central treatment facilities could result in significant savings, but was concerned that combining different waste streams would sometimes increase the total load of pollutants discharged because some pollutants would be diluted and thus made more difficult to treat. The Agency consequently provided that when waste streams are combined, no more pollutant load can be discharged than if the streams had been segregated. However, the Agency recognized that in one instance — combined treatment of cold rolling and pickling wastes— some added waste load discharge should be allowed. The Agency also concluded that, in some eases, some of the benefits of central treatment could be attained by incorporating a pretreatment step to remove such wastes as would be unduly diluted before combining waste streams for central treatment. While we believe that the Agency could have set forth its reasoning on the cost-benefit question with greater clarity, we conclude that the record shows that it did give adequate consideration to the use of central treatment. The Companies argue that many steel facilities are so crowded and have such limited land available that it is simply impracticable to employ separate treatment. They cite one of the plants studied by EPA’s contractor as an example of a plant where central treatment could be impracticable. There may be some individual plants with extraordinary space limitations or other problems; these plants may petition the permit granters for a variance from the nationwide standards under the variance clause of EPA’s regulations. But the companies have failed to show that the EPA’s conclusions as to central treatment are unreasonable with respect to the industry as a whole. They have not argued that EPA’s cost estimates assume central treatment, and thus make insufficient allowances for the measures which would have to be taken to institute separate treatment. Moreover, with respect to land availability, the interim final regulations state that: “[i]t is recognized that at older mills, the mill buildings may be crowded together, so the technologies suggested for ... BPCTCA minimize land requirements.” 41 Fed.Reg. 12993. 7. The Companies also claim that the EPA based its regulations on effluent flow rates which are too restrictive and unrealistic. Again, we must note that the interim final regulations do not require a particular flow rate: industry may employ any combination of concentrations and flow rates which achieves the prescribed effluent loads. Nevertheless, it is true that the EPA’s assumption about the effluent flow rates was relevant to its choice of BPCTCA, and thus to the ultimate § 301 effluent limitations as well, since the flow rate is relevant to the type of technology to be employed, and thus to the costs. The Companies’ first challenge to the EPA’s treatment of flow rates is that the Agency ignored comments to the contractor’s report and to the ANPR which indicated that the data base was unduly narrow and that the data from some of the sampled plants was incorrect. However, we are not directed to any evidence in the record which would substantiate these charges. Moreover, we note that a report of the EPA’s Iron and Steel Task Force, which was established after the ANPR, states that the group reexamined the data base on the basis of further information “from the plants.” As to the Hot-Forming-Primary subcategory, the report states specifically that “[t]he data base was examined and revised to include company data (particularly as regards flows) . . . ” The Companies next challenge the flow rates on which the regulations are based because EPA employed a “circular” procedure in determining them. According to the Companies, the flows were calculated by multiplying flow by concentration to achieve the “calculated” loading, and then dividing by concentration to give the flow on which the regulations were based. This, however, is a misleading portrayal of the actual procedure. EPA set the hypothesized flow on which its choice of BPCTCA was based by first calculating the average discharge load at the best plants in each subcategory, and then dividing by what it considered to be the lowest concentration of pollutant materials which facilities could be relied on to attain. This is hardly a circular procedure even though the “calculated” loading of the best plants might be arrived at by multiplying the flow rate at each plant by the discharge rate at this plant. The Companies argue that the flow rates required by the BPCTCA are unrealistically low. We note, however, that plants in each of the subcategories mentioned by them now have flow rates lower than those hypothesized by EPA as a basis for the interim final regulations. We also reject the Companies’ assertion that recycle of effluent cannot be BPCTCA because it requires facilities to make extensive internal alterations. The legislative history of the 1972 amendments to the Water Pollution Control Act shows that Congress expected the EPA to base BPCTCA standards chiefly upon end-of-manufacturing treatment of wastewater, though courts which have considered the problem have concluded that Congress did not intend to preclude the EPA from basing its BPCTCA standards on in-process control measures, at least when these measures are “considered normal practice within the industry.” FMC Corp. v. Train, 539 F.2d 973, 981 (4th Cir. 1976); see also American Petroleum Institute v. E.P.A., 540 F.2d 1023, 1033 (10th Cir. 1976); American Paper Institute v. Train, 177 U.S.App.D.C. 181, 194, 543 F.2d 328, 341 (1976); Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 637 (2d Cir. 1976). The Report of the House Committee is instructive as to Congress’ intent that BPCTCA consist, for the most part, of secondary treatment: “[b]y the term ‘control technology’ the Committee means the treatment facilities at the end of a manufacturing ... or other process rather than control technology within the manufacturing process itself.” We agree with EPA that recycling of effluent does not constitute a change “within the manufacturing process itself.” Rather, it is one form of secondary treatment, since it consists of gathering effluent from existing manufacturing processes, treating it, and returning the treated liquid to the process. Some elucidation of the distinction between secondary treatment and in-process controls may be gathered from the legislative history of § 306 of the Act, which concerns national standards of performance for new sources of pollution. The Conference Committee Report states that under § 306 “that the Administrator is required to establish standards of performance which reflect the levels of control achievable through improved production processes, and of process technique, etc.” The House Committee’s Report states that in setting standards for new sources, the EPA must look both “to control technology and procedures and operating methods inside the production plant.” With respect to recycling of effluent, the fact that some plants in the industry may have to substantially alter their piping and sewer systems does not mean that recycle is an in-process control. The dislocation of manufacturing processes which these alterations may cause is not the same thing as a change in “operating methods.” IV. We next take up an issue posed by the Sierra Club and Pennsylvania’s Department of Environmental Resources, petitioners in Nos. 76-1749 and 76-1751: whether the EPA’s decision to exempt plants in the Ma-honing River Valley from effluent limitations requiring the application of BPCTCA was proper under the FWPCA. Several arguments have been advanced to support the contention that the exemption is invalid. However, we need address only one: that the EPA is not permitted to exempt polluters from point source limitations established under the Act. Section 301(e) of the FWPCA states that: “Effluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act.” Section 301 effluent limitations, as we have noted, require facilities to discharge no more than a specified quantity of pollutant. See E. I. duPont de Nemours and Company v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). Section 302 is not relevant here. So in this case § 301(e) requires the EPA to establish specific effluent limitations under § 301 for all point sources of discharge. EPA, however, has exempted point sources located in the Mahoning Valley region “from the effluent limitations based on best practicable control technology currently available.” EPA claims that its decision: does not exempt those plants from coverage by the National Pollutant Discharge Elimination System (NPDES) permits issued pursuant to FWPCA Section 402. Neither does it exempt those facilities from the application of State laws and regulations, including water quality standards for the Mahoning River. The decision does not define current discharge as “best practicable control technology currently available” for those plants, and it does not mean that discharges from those plants will remain at their current level. The Administrator’s decision means solely that “best practicable control technology currently available” for those facilities must be defined and effluent limitations must be established and applied on a case-by-case basis by the State of Ohio, (footnote omitted) This argument fails to address the specific command of § 301(e), namely, that effluent limitations established under § 301 be applied to all point sources. EPA also argues that the legislative history of the Water Pollution Control Act Amendments of 1972 shows that while Congress was concerned with national uniformity of effluent standards, it recognized the need to allow flexibility in the federal pollution control system in order to accommodate the diverse conditions found across the country. We do not dispute this contention because we hold solely that, under § 301(e), an exemption by regulation from effluent limitations is not a permissible means of accommodating diversity. We conclude that the decision to exempt plants in the Mahoning Valley from the § 301 effluent limitations is invalid, and remand to the EPA for reconsideration of the problems underlying its initial decision to grant plants in the Mahoning Valley special treatment. In remanding the case for this purpose, we wish to emphasize that we do not decide whether the FWPCA allows the Agency to afford special treatment on the basis of location, rather than explicitly and directly on the basis of identified factors which could conceivably be exhibited by plants located anywhere in the country. V. Petitioner in No. 76-2232, CF&I Steel Corporation (“CF&I”), contends that the EPA did not adequately consider a “non-water quality environmental impact” which it alleges must be considered under the FWPCA — namely, the scarcity of water resources in the arid and semi-arid regions of the country. 33 U.S.C. § 1314(b)(1)(B). The water scarcity problem allegedly arises because the recycle technologies specified as BPCTCA for some subcategories require companies to use a system for cooling effluent before it can feasibly be reused in the process. The majority of cooling systems allegedly cause a greater water loss through evaporation than would occur in a system where effluent is disposed of directly into navigable waters. We agree with CF&I’s contention that water scarcity is a non-water quality environmental factor which the EPA must consider. See Appalachian Power Co. v. Train, 545 F.2d 1351, 1368-71 (4th Cir. 1976). CF&I’s first argument that the EPA did not adequately consider this factor is based on the claim that the Agency, in promulgating the present phase of the regulations, failed to consider the aggregate impact on water resources of phase I of the regulations, which we reviewed in AISI I, and regulations on thermal discharges which might be set forth by the Agency in the future, in addition to the water loss due to phase II itself. CF&I relies on this Court’s Statement in AISI I, with respect to the actual economic costs of meeting the prescribed limitations, that: . we are concerned that the Administrator be required at some point to assess the overall impact of his regulations in both phases. Otherwise, it is possible that the Administrator might consider the costs reasonable for each phase separately, without ever considering whether the aggregate costs on a particular industry warrant such strict standards. We thus believe that the competing interests can best be served by requiring the Administrator, when he promulgates the phase II regulations, to evaluate the total costs involved for those regulations as well as for phase I regulations. 526 F.2d at 1054. EPA argues that it did in fact consider the aggregate impact of phase I and II. We find this contention devoid of support in the record. But we are persuaded by EPA’s alternative contention that our earlier decision does not require it to consider the aggregate impact of phase I, phase II, and possible regulations on thermal pollution when promulgating phase II itself. Our earlier decision was addressed to the cumulative burdens the different phases of the regulations would impose on a “particular industry.” Here, on the other hand, we are asked to require EPA to scrutinize the cumulative burdens its regulations would place on the water resources of entire areas of the country. We decline to extend the statement in our earlier decision to cover factors other than those which pertain to the aggregate burden placed on a “particular industry.” We cannot conclude that it is arbitrary or capricious of EPA to consider the water scarcity problem by comparing the benefits in pollution reduction attributable to each phase of its regulations with the loss in water resources attributable to that phase. CF&I also contends that EPA did not adequately consider the water loss problem posed by phase II alone. The discussion of the water loss problem in the interim final regulations is as follows: One commenter stated that no consideration was given to the destructive use of water and that excessive recycle, particularly at the BATEA level, results in the unnecessary destruction of water. A means to dissipate heat is frequently a necessity if a recycle system is to be employed. The evaporation of water in cooling towers or from ponds is the most commonly employed means to accomplish this. However, fin-tube heat exchangers or dry type cooling towers can be used to achieve cooling without evaporation of water. Such systems are used in the petroleum processing and electric utilities industries (see page 543, . . . Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Steam Electric Power Generating Point Source Category.) The Agency also feels that recognition of the evaporation of water in recycle systems (and hence loss of availability to potential downstream users) should be balanced with recognition that evaporation also occur [sic] in once through systems, when the heated discharge causes evaporation in the stream. This is not an obvious phenomenon, since it occurs downstream of the discharge point, but to the downstream user it is as real as with consumptive in-plant usage, because assuming that the stream eventually gets back to temperature equilibrium with its environment, it will get there primarily by evaporation, i. e., with just as certain a loss of water. Additionally, the use of a recycle system permits lessening the intake flow requirements. 41 Fed.Reg. 13003. CF&I focuses on the Agency’s statement that “fin-tube heat exchangers or dry type cooling towers can be used to achieve cooling without evaporation of water.” It argues that the Agency did not give adequate consideration to the possibility that severe scaling and fouling problems would develop if such closed cooling systems were used in the iron and steel industry. CF&I also challenges the Agency’s reliance on its Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Steam Electric Power Generating Point Source Category, claiming that the EPA failed to adequately explore differences between the iron and steel industry and the steam electric power generating industry. The EPA first responds that “the Agency was and is of the view that no cooling devices of any kind will be employed to meet Phase II BPT.” (emphasis added) We must reject this response because it is not sufficiently reconcilable with the EPA’s statement in the interim final regulations that: “[a] means to dissipate heat is frequently a necessity if a recycle system is to be employed.” EPA also argues that fin-tube heat exchangers or dry type cooling towers are applicable to waters which do not contact steel as it is being formed and finished, even if these cooling systems are not applicable to contact cooling water. But the regulations state that “fin-tube heat exchangers or dry type cooling towers can be used to achieve cooling without evaporation of water.” They do not distinguish between contact and non-contact cooling waters. Moreover, EPA has conceded that: “[s]ince iron and steel industry process [contact] waters may be more prone to fouling and scaling than steam electric cooling water, the Steam Electric Development Document does not directly support EPA’s belief that dry type cooling towers could be utilized on steel industry process waters without fouling and scaling problems.” In sum, even inferring that EPA considered the fouling and scaling problem, we must conclude that there is insufficient evidence to support the statement in the interim final regulations that “fin-tube heat exchangers or dry type cooling towers can be used to achieve cooling without evaporation of water.” Since EPA may have proceeded under a mistaken assumption of fact as to the water loss attributable to the interim final regulations, the matter will be remanded to the Agency for further consideration of whether fin-tube heat exchangers or dry type cooling towers may be employed despite any fouling or scaling problems — assuming that cooling systems of some kind will be employed in order to meet the effluent limitations prescribed in the regulations. Since fouling and scaling problems may also extend to other types of cooling systems mentioned in the Development Document for the steam electric power generating industry, the Agency will consider any fouling and scaling problems associated with the use of these systems. In addition, the Court notes that the various cooling systems mentioned in the Development Document for the steam electric power generating industry — including basin cooling, basin cooling with sprays, wet cooling towers, and wet/dry cooling towers as well as dry cooling towers — result in widely divergent evaporation rates. Thus, the cost in terms of water loss of achieving the specified effluent limitations may vary greatly depending on which cooling system is employed, assuming that a cooling system is required to achieve the effluent limitations based on BPCTCA. However, the record does not show that the EPA, in concluding that the specified effluent limitations were not too costly in terms of water consumption, was of any particular view as to how often each of the different cooling systems would be used. We conclude that the Agency may not decline to estimate the water loss due to the interim final regulations as accurately as possible on the grounds that, whatever the cost in water consumption, the specified effluent limitations are justified. In order to insure that the Agency completes a sufficiently specific and definite study of the water consumption problem on remand, the Agency must address the question of how often the various cooling systems will be employed, or present reasons why it cannot make such an assessment. VI. The petitions to review the interim final regulations are denied, except as follows: 1. The regulations are invalid — for want of proper notice — insofar as they apply to the specialty steel industry. 2. The interim final regulations are remanded to the Agency for a finding as to the bearing of “age” on the cost or feasibility of retrofitting plants with pollution control technology. 3. To the extent applicable, the regulations are remanded to the Agency to enable it to make a record showing that it has made adequate allowance for certain cost factors which were originally not directly included. 4. The regulations are remanded to the Agency for reconsideration of the industry’s financing problems. 5. The Agency decision to exempt plants in the Mahoning River Valley from the § 301 effluent limitations is invalid and the matter is remanded to the Agency for appropriate reconsideration. 6. To the extent applicable, the regulations are remanded to the Agency for further consideration of whether fin-tube heat exchangers or dry type cooling towers may be employed despite any fouling or scaling problems — assuming that cooling systems of some kind will be employed. Similar consideration should be given to these problems as they may be associated with the use of other cooling systems which might be employed. The Agency on remand shall also consider the question of the extent the various cooling systems will be employed or present reasons why such an assessment is not feasible. In closing this opinion, we must note that we have- been troubled by the Agency’s apparent failure to objectively identify the entire record of its action at the time of its original decision. We strongly suggest that the Agency adopt measures to correct this situation, so that the reviewing court is not faced with the problem of determining what materials were indeed before the Agency at the time of its decision. H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation. . We reject as meritless petitioners’ claim that the EPA violated the APA by failing to consider comments they made during the formulation of these regulations. . Basic Oxygen Furnace-Wet Air Pollution Control Methods Subcategory (Subpart G); Vacuum Degassing Subcategory (Subpart K); and Continuous Casting and Pressure Slab Molding Subcategory (Subpart L). . We need not, and do not, discuss possible circumstances under which the pendency of a court order to promulgate regulations might constitute “good cause” for dispensing with notice and an opportunity for comment. See National Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 331, 510 F.2d 692, 711 n.103 (1975). . We may not hold that the regulations are valid because they are in interim final form, with provision that the Agency will “consider petitions for reconsideration of any permits” issued under the regulations if the “final regulation differs substantially” from the interim finals. 41 Fed.Reg. 13004. The regulations are to take effect immediately, and we have no assurance that the possibility of petitioning the Agency for reconsideration of permits is sufficient to alleviate the likelihood of prejudice. . The EPA also revised the regulations as to other subcategories. We have examined the notice with respect to all subcategories and find it sufficient. . The BPCTCA specified for Subpart P (Pipe and Tubes Subcategory) calls for recycling of clarifier effluent, rather than the effluent which has only passed through the scale pit as with Subparts M, N and O. . Environmental Policy Division of the Library of Congress, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm. Print 1973), at 1468 [hereinafter, “Leg.Hist.”]. . 40 Fed.Reg. 36712. . 40 Fed.Reg. 36711-13. . We cannot accept the Companies’ claim that the ANPR could not serve to fulfill the notice of requirement because it was, in terms, “advance notice of intent to propose and promulgate” regulations. The ANPR served the function of inviting comments on the issues beforg the Agency because it stated that: This advance notice of proposed rulemaking is being issued pursuant to EPA’s policy for early rulemaking proceedings to provide the interested public a greater opportunity for review and comment . . The purpose, therefore, in giving this advance notice is to apprise interested persons of EPA’s expected course of action, and to provide such interested persons with an opportunity to submit comments thereon. In addition, this advance notice is given so as to obtain the aforesaid comments in sufficient time to enable EPA to promulgate effluent limitations guidelines and pretreatment standards by December 1, 1975, in accordance with the order of the United States District Court for the District of Columbia in Natural Resources Defense Council, Inc. v. Russell E. Train ... 40 Fed.Reg. 36708. . We find no merit to Pennsylvania’s claims that: a) the ANPR did not sufficiently specify that the Agency might consider granting special treatment to facilities in the Mahoning Valley b) the Agency had a duty to defer notice and comment until after it had completed its investigation and proposed a modification to the regulatory scheme c) that it was denied effective participation in the rulemaking process. . See AISI I, 526 F.2d at 1047. . Leg.Hist. at 170. . Leg.Hist. at 1466. . Development Document for Interim Final Effluent Limitations Guidelines and Proposed New Source Performance Standards for the Forming, Finishing and Specialty Steel Segments of the Iron and Steel Manufacturing Point Source Category, at 145. . Senator Muskie’s statement in support of the 1972 amendments to the FWPCA as approved by the House-Senate Conference Committee says that: “[i]n those industrial categories where present practices are uniformly inadequate, the Administrator should interpret ‘best practicable’ to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied.” Leg. Hist, at 169-70. . The March TBS report indicates that “baseline” conditions represent “anticipated future operating conditions . . . [excluding] the impact of all pending environmental regulations . . . [but including] the impact of pollution control equipment placed into service prior to 1975.” . A February 17, 1976 “Briefing Outline” on economic effects by EPA’s staff does not mention what rate of return on equity the industry must earn. But'this fact does not persuade us that the statement of the required rate of return in the fuller “Summary Economic Analysis” was peripheral to its conclusions, that EPA did not rely substantially on TBS’ expertise in evaluating the extent of the financing problem, or that EPA considered the March TBS report. . Leg.Hist. at 788. . Leg.Hist. at 311. . Leg.Hist. at 798. . Sierra Club has standing because its members in Ohio and Pennsylvania will allegedly be adversely affected “in their aesthetic, recreational and conservational interests, and in their personal health and well-being, by the water pollution which the subject regulations unlawfully permit to continue.” See United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Pennsylvania’s Department of Environmental Resources has standing because some of its citizens, in the Beaver Falls area, utilize the Mahoning River as a public water supply. . Section 302 allows the Agency to establish “effluent limitations” (including alternative effluent control strategies) when, in its judgment, § 301 limitations would not adequately assure the “attainment or maintenance of [adequate] water quality in a specific portion of the navigable waters.” 33 U.S.C. § 1312. . For a description of the states’ role in developing and carrying out permit programs under § 402, see the Supreme Court’s decision in E. I. duPont de Nemours and Company v. Train, supra. . The Report of the House Committee on Public Works states, with reference to § 301(b), that it “requires that all point sources of discharge of pollutants . . . achieve . effluent limitations requiring the use of the best practicable control technology currently available.” Leg.Hist. at 787 (emphasis added). . We do not accept EPA’s suggestion that our decision is contrary to National Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 331, 510 F.2d 692, 711 n.102 (1975), where the Court said that: “[w]e do not believe that the statute requires guidelines covering all point sources.” The same footnote states that: “the statute does not prohibit the promulgation of effluent limitations for point sources in the absence of guidelines.” . Portions of CF&I’s brief call into question the reasonableness of the Agency’s determination that the regulations do not result in undue water loss. In view of our disposition of the case, we need not consider this question. We reject CF&I’s contention that the regulations are invalid because the Agency did not sufficiently consider the water law and policy of the western United States. See AISI I, 526 F.2d 1027, 1050 n.49. . In view of the fact that we have remanded the interim final regulations.in other respects, we do not consider EPA’s suggestion that we limit our remand on the water loss problem only “to point sources not located in arid or semi-arid regions.”

United States v. Kennebec Log Driving Co.

COFFIN, Chief Judge. In 1971, the United States filed a suit against the Kennebec Log Driving Company, a Maine chartered membership corporation which has conducted annual log drives on the upper Kennebec River since 1835, and against its only present members, codefendants Scott Paper Company and Hudson Pulp and Paper Corporation (collectively, KLD). The action was grounded on Sections 10 and 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 407. Plaintiff, claiming that the sinking of logs and bark fragments incident to a log drive was “refuse” under the Act, sought an injunction against future log driving activities and an order requiring affirmative action to remove from the river the consequences of past log driving activities. In the first phase of this litigation, the district court, granted summary judgment for KLÍ), holding that the Act of May 9, 1900, 33 U.S.C. § 410, authorizing log driving on certain rivers where such activity was dominant, exempted log driving on the Kennebec from all the provisions of the Rivers and Harbors Act of 1899. United States v. Kennebec Log Driving Co., 356 F.Supp. 344 (D.Me. 1973). We reversed, holding that while § 410 expressly repealed the absolute bar to log driving, and any prohibition of the use of log booms, contained in §§ 10 and 15 of the Rivers and Harbors Act, 33 U.S.C. §§ 403, 409, it left intact § 13, 33 U.S.C. § 407 [hereinafter § 13], which prohibited the discharge of any refuse unless accomplished under a permit from the Secretary of the Army. We remanded the case to the district court, concurring in its holding that § 13 was facially applicable to defendants’ activities, but leaving open whether some deposits of material into navigable waters were so intimately related to a particular form of navigation, such as log driving, that the Congress did not intend such deposits to be considered “refuse”. 491 F.2d 562, 570 (1 Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). On remand the district court held that § 13 did apply to KLD’s log driving activity. It noted that the section proscribed the discharge of “any refuse matter of any kind” without prior permission from the Secretary of the Army, and that peeled bark and sunken logs fell within this description and within the compass of “refuse” as that term was made clear in United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). The district court rejected defendants’ argument that Congress knowing (a) that log driving was an important form of navigation and (b) that some sinkage of logs and bark were inevitably involved in any log drive, could not have intended to proscribe the sinkage of water-logged logs and bark fragments. Relying on our opinion; 491 F.2d at 568-69, that § 13 was not an absolute bar but a bar subject to permission granted on certain conditions, the district court saw no conflict between Congress’ desire to permit log driving and a submission of this activity to regulation through permits calculated to minimize pollution. It therefore granted the government’s motion for summary judgment for a declaration that § 13 was applicable to KLD’s log driving activities, but reserved consideration of the issue of in-junctive relief and certified the question of liability under 28 U.S.C. § 1292(b). United States v. Kennebec Log Driving Co., 399 F.Supp. 754 (D.Me.1975). Defendants present an intricate and tightly woven argument which can be telescoped into the following points. (1) Section 13 is predominantly prohibitory; its regulatory aspects are purely within the discretion of the Secretary of the Army. United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 662, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973) (PIC-CO). (2) The breadth and stringency of the prohibition are so extreme, and the possibility of exemption through unrestricted discretion so remote, that Congress could not have intended the bar of § 13 to apply to incidents of normal commercial navigation. (3) If § 13 applies to log drives, it must also apply to the traffic of river vessels. This construction would render all voyages of all vessels in the past 70 years illegal. (4) The inaction of the Secretary of the Army for three-quarters of a century, in failing to insist on a pollution discharge permit for any log drive, is an administrative interpretation that § 13 is not applicable to defendants’ business. It has been argued that any such search for Congressional intent is made irrelevant by United States v. Standard Oil Co., 384 U.S. 224, 229, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492 (1966), where the court, referring to the broad coverage of the Act of “any refuse matter of any kind or description”, stated that “[m]ore comprehensive language would be difficult to select.” This language is sufficient for our brother Campbell. But we hesitate to rest on it, since the court did not have to face the question whether refuse which is a normal incident of lawful navigation constituted an implied exception. And in our prior opinion we left this question open, concluding only that § 13 could logically survive the 1900 repeal of the absolute bar to log driving. We therefore examine the thrust of the argument that Congress could not possibly have intended the Act to apply to this kind of case. The defendants’ argument is compelling in the abstract: Congress would not have wanted to subject the important activity of log driving to extermination under the Refuse Act. But, having in mind that the Act provided for the issuance of permits at the discretion of the Secretary, we ask whether Congress would prefer that the courts create a judicial exception for log driving (or vessel traffic), thus giving carte blanche to any pollution creating effects, or that the Secretary of the Army initiate a permit system, thus providing a system to place limits on pollution which may legally be caused. This, in a sense, is an academic question because through wisdom, oversight, or timorousness of the Secretary, the issue did not arise. But we think it is a question essential to the necessarily artificial analysis of original Congressional intent. We are helped in our attempt to de-vine the Congressional intent of 1899 by our knowledge of the limitations embodied in our institutions. If Congress, as the defendants would have it, left to the judiciary the delineation of exceptions covering normal incidents of commercial river navigation, the courts would have been required to pass upon a series of nice distinctions which arise in areas outside their expertise. The courts, in the context of specific cases, would have to face the task of defining “normal” or “acceptable” log driving. In addition to the problems of collecting and analyzing commercial, engineering, and pollution data, they would have to pass judgment on the maximum acceptable frequency of drives, condition and quantity of logs, seasonal considerations, places, duration and quantity of permitted storage. Reference to the implementing regulations under the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(3) as amended, relating to the discharge of oil, 40 C.F.R. §§ 110.1-110.9 (1975), illustrates the detail and scope of the necessary provisions. When we confront the clear, cold reality of describing what we would be excluding from the scope of § 13, we conclude that we would be entering the field reserved to the agencies or the Congress, with too much demand for specificity to be the function of the courts. The argument that Congress could not have meant the Act to carry its literal meaning, leaving to discretionary administrative action exemption for normal navigation, assumes the worst and ignores the availability of standard safeguards against administrative abuse. It assumes that the Secretary would act capriciously, with Draconian zeal, and without check to its fiat. Were this to happen, judicially cognizable defenses exist to deal with such uses of prohibitive powers. Discriminatory and selective enforcement would be vulnerable to legal challenge. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1885). Were the Secretary to apply the Act in an arbitrary and capricious manner, a court action would be available to mandate reasonable action. See Work v. United States ex rel. Rives, 267 U.S. 175, 183-84, 45 S.Ct.-252, 69 L.Ed. 561 (1925). Finally, there exists the safeguard of legislative response to administrative action. After Congress, in the 1972 Federal Water Pollution Control Act, barred “harmful” oil discharges, the Secretary of the Interior issued regulations making no exception for oil discharges from properly operating vessel engines. Congress responded with hearings and an exception was added to the regulations which was subsequently upheld in United States v. Boyd, 491 F.2d 1163 (9th Cir. 1973). Defendants make the point that if this action had been brought against KLD in late 1899, Congress would probably have responded similarly, and both the Secretary and the courts would have acquiesced. This may be true, but absent the occasion, we can only speculate, observing, however, that it is likely that fairly complex standards would have been promulgated to govern the exemption. In sum, it is just as reasonable for us to suppose that Congress intended broad coverage of the Act and sensible administrative action as that it implicitly intended to exclude a wide range of activities that the Act facially encompassed. This brings us to the argument that the Secretary never interpreted § 13 to apply to log drives. This administrative interpretation would have been entitled to some weight were it not for PICCO. But, in that case, the Court confronted the fact that until December, 1970, the Army Corps of Engineers had consistently construed § 13 as limited to deposits of refuse affecting navigation. This fact, however, was assumed to have no bearing on the question of whether § 13 applies to deposits that have no tendency to affect navigation — at least since the Court’s decision in Standard Oil, supra. Administrative practice was not germane to a finding of violation, but reliance on such practice was held to be available as a defense in a criminal prosecution. 411 U.S. at 674, 93 S.Ct. 1804. We therefore affirm the district court’s conclusion that § 13 is applicable to defendant’s log driving activities. Defendants have suggested that such a ruling be applied only prospectively, on the ground that the issue involved here is one “of the first impression whose resolution was not clearly foreshadowed”. Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). We think that the question of the availability and extent of retrospective relief would be more properly considered in the district court on remand. Affirmed. . Defendants claim the problem would not be this complex. They postulate that § 13 was devised to permit “use” but not “abuse” of the waterways. They say a user, i. e., someone engaged in the legitimate commercial navigation was intended to be excepted from the Act, while an abuser, i. e., someone else “whose activities, on the face of things, represented an abuse of public resources” would have the burden of persuading the Secretary to grant a permit. We do not see how such a distinction squares with the sweep of the Court’s definition of “refuse” in Standard Oil. If the Act forbids the discharge into a river of a container of sludge located on shore, it must also forbid the pumping of bilge containing similar waste. If the Act forbids the choking of an inlet from the discharge of sawmill waste, it must forbid the same result accomplished by a pile-up of a neglected raft of logs. Yet if some activities relating to commercial navigation are clearly covered by the Act, the distinction between “users” and “abusers” becomes useless. . These regulations were promulgated pursuant to the Federal Water Pollution Control Act of June 30, 1948, as amended prior to October 18, 1972, 33 U.S.C. §§ 1151-71. The Federal Water Pollution Control Act, as amended in its entirety by Act of October 18, 1972, 33 U.S.C. §§ 1251-376, has superseded the 1948 Act but no similar regulations have been promulgated pursuant to its authority. We assume that the cited regulations are still in force. Some idea of the variety and complexity which would be involved in refuse regulation of log driving can be gleaned from a scrutiny of the Corps of Engineers’ regulations concerning navigation, 33 C.F.R. Ch. II, Part 207 (1975), a number of which apply to log driving activities. . Indeed, the account in United States v. Boyd, 491 F.2d 1163 (9th Cir. 1973), of the legislative history of the 1970 Act suggests what the attitude of Congress might well be when confronted with the task of drafting specific exceptions to a broad-based statutory proscription. The opinion quotes the following remarks for the Senate senior conferee, Senator Muskie: “It was conceivable that de minimis quantities of oil ought not to be subject to the notice provisions and ought not to be subject to the penalty provisions of the law. It was difficult to define these quantities in the statute. “The definition, we felt, would depend upon more extensive study than we could give, and even if we were in a position to give that kind of study, there were other reasons why such specificity ought not to be included in the law.” 491 F.2d at 1167 n. 4. . Defendants make one additional argument— that their actions did not come within the words of the statute — “deposit” “cause” or “suffer” — because the only way to avoid sink-age would have been to abstain from log driving. This, however, is only a semantically different version of the earlier argument we have considered in the text. . While we have no occasion so to hold, it might be inferred that § 13 is also applicable to vessel navigation. It is possible, however, that vessel traffic raises problems unaddressed in the present litigation. While a ruling holding § 13 applicable to oil seepage from normal lawful navigation would render past voyages of vessels illegal under the Refuse Act, it would have little practical importance today. The permit program authorized by the Refuse Act is now administered by the Environmental Protection Agency under the Federal Water Pollution Control Act. (FWPCA) 33 U.S.C. § 1342(a)(5). Whatever the status of vessel navigation under the Refuse Act, discharges from properly operating vessel engines have been exempted by regulation from the otherwise complete coverage of the oil spill provisions of the FWPCA, 33 U.S.C. § 1321. See United States v. Boyd, supra. As a corollary, it is clear that oil discharged from vessels which is not normal seepage from a properly operating engine is subject to the proscriptions and penalties of the FWPCA.

United States v. Kennebec Log Driving Co.

LEVIN H. CAMPBELL, Circuit Judge (concurring). I concur in the result, although I am not sure I follow the reasoning of the court in all respects. I find it enough that the Supreme Court’s interpretation in United States v. Standard Oil is the controlling interpretation of the statute today, including, functionally, of the “legislative intent.” Whether it is a revisionist interpretation or not, it is binding upon us. Whatever people may once have thought, § 13 now means what the Court in Standard Oil said. It follows that as the pollutants in question are “refuse” under § 13, the statute applies. And I agree with the court that since § 13 allows administrative permits, those rather than judicially created exceptions would be the congressionally preferred means for excepting special types of refuse as to which an exemption might be in order. Obviously, different questions arise when one considers the equities of imposing clean-up requirements for actions that may have been undertaken in good faith under an earlier construction of the law. The district court, like ourselves, has shown itself to be well aware of these issues, which will be the subject of future hearings on the question of relief.

American Iron & Steel Institute v. Environmental Protection Agency

OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This is a petition brought by the American Iron and Steel Institute and several individual steel companies to review regulations promulgated by the Administrator of the Environmental Protection Agency on June 28, 1974. In these regulations, entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category,” the Administrator established nationwide single number effluent limitations for point sources in the iron and steel industry engaged in “primary” (or basic manufacturing) operations. Contending that the Administrator’s regulations do not conform to the requirements of the Federal Water Pollution Control Act Amendments of 1972 (hereinafter, the “Act”), the petitioners seek judicial review of the Administrator’s actions under section 509(b)(1) of the Act. Two other steel companies — Youngstown Sheet and Tube Company, and CF&I Steel Corporation— filed similar petitions in the Sixth and Tenth Circuits, respectively. By order of each Circuit, the cases were transferred, to this Court, and they have been consolidated with the petitions filed here. In addition, the Natural Resources Defense Council, Inc., has filed a brief as Amicus Curiae. I Petitioners’ first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources. Petitioners contend that the limitations which are to be binding on them can only be established by the permit-granting authorities (principally, the States), which are to follow guidelines promulgated by the Administrator. The Administrator contends that he is not merely empowered to promulgate guidelines, but may establish limitations which are binding throughout the country and which must be incorporated into any permit issued to any individual point source. The answer to this dispute, which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act — 301, 304 and 402. Petitioners rely heavily on the fact that there is no section in the Act which explicitly authorizes the Administrator to establish single number effluent limitations for existing point sources. They contend that the lack of such explicit authorization cannot have been an oversight, since the Act expressly authorizes the Administrator to promulgate other types of regulations. For example, the Administrator has the explicit authority to set standards for new point sources under section 306(b)(1)(B) and for toxic discharges under section 307(a)(2), and to establish pretreatment standards under section 307(b) and water quality standards under section 303(b). Many of these sections not only explicitly authorize the Administrator to promulgate regulations establishing such standards, but also specify in some detail the times and procedures to be followed. In contrast to these sections, the only section explicitly authorizing the Administrator to establish any regulations pertaining to effluent standards for existing point sources — section 304(b) — merely authorizes the promulgation of “guidelines” rather than precise standards or single number limitations. While section 301(b) refers to “effluent limitations” for existing point sources, that section does not explicitly authorize the Administrator (or anyone else) to promulgate regulations establishing such limitations. Rather, using the passive voice, that section merely states that effluent limitations for such point sources “shall be achieved” by July 1, 1977 through the application of the “best practicable control technology currently available” (hereinafter, “BPCTCA”), and by July 1, 1983 through the application of the “best available technology economically achievable” (hereinafter, “BATEA”). Under petitioners’ construction of the Act, these effluent limitations are to be “achieved” through the permit process. They contend that the permit issuing authorities, under section 402, are to determine the effluent limitations to be achieved by applying, to individual point sources, the factors enumerated in the guidelines previously promulgated by the Administrator under section 304(b). The two consolidated cases present graphic examples of the differing consequences of the two interpretations. Both Youngstown and CF&I contend that they have local problems which can be fully appreciated only by a local permit-issuing authority. Youngstown claims that its plants in the Mahoning Valley provide one third of the direct employment in that area and that they are indirectly responsible for a significant percentage of the remaining jobs. It also claims that its plants are very old (several were built before World War I), that many will be forced to close if the limitations promulgated by the Administrator are enforced, and that because of the heavy concentration of steel plants along the shores, the river is unavailable for recreational uses anyway. Youngstown claims that a local authority, in appreciation of these factors, might have required somewhat less stringent controls. CF&I points to a different problem. It contends that the installation of anti-pollution devices in its Colorado plants would cause a significant net loss of water through evaporation, which would have serious consequences in a state where water is a scarce and valuable resource. Contending that only a local authority would fully appreciate the impact of the anti-pollution devices on scarce water resources, CF&I argues that its case is another illustration of the necessary for flexibility at the local level. We acknowledge that these arguments are not without force, but we believe that the Administrator does have the authority to promulgate effluent limitations under section 301. While we admit that Congress did not express its intent on this point with particular clarity, we conclude, after examining the entire statutory scheme and the legislative history, that the Administrator’s power to promulgate effluent limitations under section 301 can be inferred. We thus respectfully disagree with the contrary conclusion reached by the Eighth Circuit in CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975). With respect to the peculiarly local problems of some point sources, as illustrated by Youngstown and CF&I, we believe that our holding that the Administrator does have power under section 301 does not preclude some flexibility at the local level. This point will be addressed in detail in part II of this opinion. Perhaps the strongest indication in the Act that the Administrator has the power under section 301 to promulgate effluent limitations can be found in section 509(b)(1). This section provides for judicial review “of the Administrator’s action . . . (E) in approving or promulgating any effluent limitation or other limitation under section SOI . and (F) in issuing or denying any permit under section 402.” Not only does this section explicitly refer to the Administrator’s action in promulgating a section 301 effluent limitation, but its separate references, in subsections (E) and (F), to section 301 effluent limitations and section 402 permits indicates that the limitations and permits have independent significance. The Eighth Circuit in CPC International discounted the importance of section 509(b)(1)(E) by contending that the section 301 limitation referred to must be one promulgated under section 301(c), which empowers the Administrator to “modify the requirements of subsection (b)(2)(A) of this section” with respect to an individual plant upon a stringent showing of hardship and good faith efforts at compliance. We cannot accept the Eighth Circuit’s reasoning on this point. In the first place, section 301(c) does pot authorize the Administrator to promulgate any effluent limitations. Rather, it merely authorizes him to relax the requirements of section 301(b) with respect to 1983 “BATEA” standards, and thus it cannot be read to be within the scope of section 509(b)(1)(E). Furthermore, the legislative history shows quite clearly that section 301(c), which was only added during the House-Senate Conference, did not even exist at the time section 509(b)(1)(E) was originally drafted. Further support for the Administrator’s power can be found in section 505. which permits citizen suits to enforce compliance with the Act. Section 505(a)(1) permits such suits against any person “who is alleged to be in violation of (A) an effluent standard or limitation under this Act. . . . ” Section 505(f) defines “effluent standard or limitation,” for purposes of section 505(a), as “. . . (2) an effluent limitation or other limitation under section 301 . ; or (6) a permit or condition thereof issued under section 402 of this Act . . . .” If petitioners’ view were correct — that effluent limitations required under section 301 can only be established through the permit process under section 402 — then subsections (2) and (6) of section 505(f) would ^appear redundant. The fact that Congress felt it necessary to include separate references to section 301 limitations and to section 402 permits indicates that they have independent significance and that a person could be in violation of section 301(b) independently of section 402. Petitioners attempt to explain away this redundancy by arguing that the separate references merely indicate that “the legislative draftsmen appreciated that a § 402 permit condition is not always an effluent limitation — it might be a monitoring or reporting requirement.” This contention fails to eliminate the redundancy, and it fails to explain why Congress did not consider it sufficient to include only a reference to a violation of a section 402 permit. While a permit may contain conditions other than section 301 limitations, petitioners’ position is that a section 301 limitation can only be established through the permit process. Thus, given the reference to violations of section 402 permits, any reference to violations of section 301 limitations would still be superfluous under petitioners’ view. The Eighth Circuit in CPC International attempted to explain away the redundancy on a different ground. It viewed the independent reference to section 301 as being necessary to encompass section 301(f), which prohibits the discharge of radiological, chemical, or biological warfare agents and high-level radioactive wastes into navigable waters. However, section 301(f) is not an “effluent limitation,” but rather a flat prohibition on all such discharges. Section 301(b) is the part of section 301 which requires compliance with effluent limitations, and section 301(f) would seem to be a type of “other limitation” referred to in section 505(f)(2). Section 401(a)(1) also lends support to the Administration’s position. This section requires an applicant for a permit to provide the permit-issuing agency with “a certification from the State that any such discharge will comply with the applicable provisions of sections 301, 302, 306, and 307 of this Act.” The section then proceeds to state: “In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 301(b) and 302, and there is not an applicable standard under sections 306 and 307, the States shall so certify . . . .” This section, by requiring the State to certify the absence of a section 301 effluent limitation when someone has applied for a permit, seems to presuppose that section 301 limitations have an existence independent of the section 402 permits, and that they are generally expected to have been promulgated prior to the issuance of such permits. There are a number of other sections in the Act which refer to the establishment of effluent limitations “under” or “pursuant to” section 301. While it is true that none of these sections specify how these limitations are to be established or who is expected to establish them, the repeated references to such limitations, when coupled with the complete absence of any qualification that such limitations are to be established through the permit process, is further support for the position that Congress intended the section 301(b) limitations to have an independent existence. If they are to have such an independent existence, it is reasonable for the Administrator to conclude that the promulgation of regulations establishing such limitations is within his inherent rule-making power. Those sections containing references to effluent limitations include section 301(e) [“Effluent limitations established pursuant to this section”]; section 302(c) [“The establishment of effluent limitations under this section shall not operate to delay the application of any effluent limitation established under section 301 or section 306 of this Act”]; section 316(b) [“any standard established pursuant to section 301”]; and section 316(c) [“effluent limitations established under section 301”]. Finally, we believe that a joint reading of sections 304 and' 301 lends support for the Administrator’s position and undercuts that of the petitioners. Sections 304(b)(1)(A) and 304(b)(2)(A) require that the Administrator’s regulations, which are to be applicable by the years 1977 and 1983, respectively, “identify the degree of effluent reduction attainable” through application of the best technology practicable or available. This meshes in very neatly with section 301(b), which requires the “achievement” of effluent limitations by those dates applying the same respective levels of technology. Reading the two sections together, it would seem inconsistent to require, on the one hand, both the achievement of effluent limitations applying certain levels of technology [section 301(b)] and the promulgation of regulations by the Administrator which “identify . . . the degree of effluent reduction attainable” through those levels of technology [section 304(b)], while at the same time allowing permit grantors to determine for themselves, bound only by section 304(b) guidelines, what levels of effluent limitation are to be achieved. The Eighth Circuit in CPC International relied in part on the permit provisions of the Act, especially section 402(d)(2), which provides: “No permit shall issue ... if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permits as being outside the guidelines and requirements of this Act.” The Eighth Circuit, emphasizing the phrase “as being outside the guidelines,” concluded that “[i]t is hard to imagine a clearer indication that the permit-issuing authority is to follow the guidelines promulgated under § 304(b), and is not to refer to independent regulations under § 301.” We respectfully disagree, and believe that the Eighth Circuit read too much into section 402(d)(2). Even if the word “guidelines” is a specific reference to the section 304(b) guidelines, the Eighth Circuit’s emphasis on that word ignores the fact that the permit grantors must also comply with the “requirements” of the Act. In section 402 (b)(1)(A), the Act requires that any permits issued “apply, and insure compliance with, any applicable requirements of sections 301, 302, 306, 307 and 403.” Section 304, unlike section 301, is never explicitly mentioned in section 402. We thus read the whole of section 402 as requiring compliance both with section 301 limitations and with any guidelines promulgated by the Administrator. We also believe that a close reading of the legislative history supports the Administrator’s position. The Senate Report accompanying the bill stated: “It is the Committee’s intention that pursuant to subsection 301(b)(1)(A), and Section 304(b) the Administrator will interpret the term ‘best practicable’ when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by January 1, 1976.” Virtually identical language was used by Senator Muskie, the principal author of the bill, in explaining the Report of the House-Senate Conference Committee. Senator Bentsen, a member of the Senate Public Works Committee which drafted the bill, gave perhaps the clearest indication that Congress contemplated that the Administrator would establish section 301 limitations: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1977 [now July 1, 1977], which comply with specifically defined levels of effluent controls and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to section 301 and section 304, these 1976 [now 1977] goals shall be at least . . . the ‘best practicable control technology currently available’ for [industrial] point sources. ” The petitioners, as did the Eighth Circuit in CPC International, also rely on portions of the legislative history as support for their interpretation, but we believe that a close reading of the parts on which they rely does not contradict our analysis. Many of the statements indicating the need for flexibility, precise federal guidelines and a meaningful state role do not prove that the Administrator does not have the power to establish limitations under section 301. As we shall explain in greater detail in part II of this opinion, they merely indicate that the Administrator was empowered to promulgate guidelines in addition to limitations. Furthermore, some of the legislative history relied on by petitioners is ambiguous. One example is the following exchange between Senator Mathias and Senator Muskie: “Mr. Mathias. Does section 301(b) (2)(A) on page 76 comtemplate that a State, or the Administrator if appropriate, might be able to set the 1981 [now 1983] effluent limitations almost on an individual point source by point source basis? “Mr. Muskie. Section 301(b)(2)(A) as well as section 301(b)(1) anticipate individual application on point sources through the procedures under the permit program established under section 402.” Unlike the petitioners, we do not see Senator Muskie’s answer as support for the view that section 301 effluent limitations can only be established through the permit process. Rather, it is fully consistent with the Administrator’s position that previously promulgated nationwide effluent limitations are to be applied to individual plants through the permit process. Given the question asked, his answer must be taken primarily as a denial that the Administrator was to set limitations on a plant-by-plant basis, not that he lacked the authority to establish nationwide limitations. He merely indicated that those limitations were to be applied by local authorities on a local basis. The strongest statement in support of the view that effluent limitations were to be established, as well as applied, through the permit process appears in a letter from EPA Administrator William Ruckelshaus to Chairman Blatnik of the House Public Works Committee: “Effluent limitations required by Section 301 would be established and applied to all point sources of discharges covered by the Act by means of permits issued under Title IV.” We believe that this statement should not be given great weight. This Act was predominantly a congressional product, with the Administration playing a relatively insignificant rule in its drafting, at least with respect to those parts of the Act at issue here. Consequently, we believe that the comments by the EPA Administrator reflecting his interpretation of then pending legislation should be given less weight in determining the meaning of the Act than statements by Senators such as Muskie and Bentsen who had a far greater responsibility for the Act’s drafting. The Eighth Circuit in CPC International also relied heavily on the fact that several Representatives, principally Abzug and Rangel, were concerned about the lack of a federal veto power over the permit grantors in the early House version of the bill. The Eighth Circuit concluded that “the creation of the veto power would make no sense if the EPA was already empowered to promulgate regulations under § 301.” We disagree. We believe that a veto power could have been considered just as necessary to ensure compliance by the permit grantors with section 301 limitations as with section 304 guidelines. As a final point, we note that the Supreme Court has consistently stated that, where an Act of Congress is fairly susceptible of differing constructions, the interpretation made of it by the agency charged with its administration should be given considerable deference. Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Power Reaction Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961); McLaren v. Fleischer, 256 U.S. 477, 480-81, 41 S.Ct. 577, 65 L.Ed. 1052 (1921). This position was most recently reiterated in Train v. NRDC, 421 U.S. 60, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), where the Supreme Court, in upholding the Administrator’s interpretation of section 110 of the Clean Air Act, stated: “We therefore conclude that the Agency’s interpretation of §§ 110(a)(3) and 110(f) was ‘correct’ to the extent that it can be said that any particular interpretation of a complex statute such as this is the ‘correct’ one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency.” Similarly, the Supreme Court also stated: “Without going so far as to hold that the Agency’s construction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been acóepted by the reviewing courts.” For the reasons expressed earlier, we believe that the Administrator’s interpretation of this very complex Act — at least with respect to his power to promulgate effluent limitations under section 301 — is the more reasonable one, and should be given appropriate deference. II Having concluded that the Administrator does have the power to promulgate effluent limitations under section 301, we are now faced with the question of interpreting the nature of the Administrator’s powers and duties under section 304 and of reconciling our construction of section 304 with that of section 301. We begin by observing that the Administrator not only has the power, but the explicit obligation to promulgate “guidelines” under section 304. In these guidelines, the Administrator is specifically required (1) to “identify the degree of effluent reduction attainable through the application” of the relevant standard of technology [sections 301(b)(1)(A) and 301(b)(2)(A)], and (2) to “specify factors to be taken in to account in determining the control measures and practices to be applicable to point sources . . . within such categories or classes ” [section 304(b) (1) (B)] (emphasis added). This second requirement clearly contemplates that the guidelines promulgated by the Administrator on the basis of broad categories or classes of industries are to provide guidance to those authorities (presumably, the permit grantors) which determine the precise degree of effluent control required of any individual point source. The only other interpretation possible would be that the Administrator is required to promulgate guidelines for broad categories or classes which are to guide himself in setting precise limitations for specific point sources — clearly an illogical interpretation, and, as noted below, one which is contrary to the clearly expressed congressional intent that the Administrator is not to consider the particular circumstances of individual point sources. Sections 304(b)(1)(B) and 304(b) (2) (B) also specify a number of factors to be taken into account in determining the control measures required for compliance with the respective 1977 and 1983 technological standards. These factors include cost, the age of the equipment and facilities involved, engineering aspects of application of various types of control techniques, and non-water quality environmental impact. The first question to address is who is to consider these factors — the Administrator in promulgating the guidelines, or the permit grantors in applying the guidelines to individual point sources? The statute is somewhat ambiguous on this point. By listing the various “factors” in sections 304(b)(1)(B) and 304(b)(2)(B) immediately after stating that the guidelines are to “specify factors to be taken into account,” Congress would appear to have intended that these were factors to be considered by those authorities applying the guidelines to individual point sources within the categories outlined by the Administrator. On the other hand, the statute states that these are factors “relating to the assessment” of the relevant technology, and sections 304(b)(1)(A) and 304(b)(2)(A) state that the Administrator is required to “identify . . . the degree of effluent reduction attainable through the application” of the relevant level of technology. This suggests that the factors are ones to be considered by the Administrator in “assessing” the proper level of technology. The legislative history, however, indicates quite clearly that a full consideration of these factors at the permit-issuing stage was not intended. In Senator Muskie’s statement in support of the bill as approved by the House-Senate Conference Committee, he explained: “The Conferees intend that the factors described in Section 304(b) be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such category or class.” Similarly, Representative Dingell, in discussing one of the factors (“cost”) enumerated in section 304(b), stated: “The conference report emphasizes on page 121 a very important point. The report states: ‘The conferees intend that the Administrator or the State, as the case may be, will make the determination of the economic impact of an effluent limitation on the basis of classes and categories of point sources, as distinguished from a plant by plant determination.’ “Thus, a plant-by-plant determination of the economic impact of an effluent limitation is neither expected, nor desired, and, in fact, it should be avoided.” Nevertheless, it does appear that Congress contemplated that some degree of consideration of the enumerated factors was to be made by the permit grantors on a plant-by-plant basis. The Senate Report, after referring to the section 304(b) factors, stated: “In applying effluent limitations to any individual plant, the factors cited above should be applied to that specific plant.” At first glance, this statement seems hard to reconcile with the previously quoted statements indicating that the factors were not to be considered on a plant-by-plant basis. We note, however, that the Senate Report just quoted said that the factors were to be “applied,” not that they were to be “considered.” We therefore believe that the statements quoted can be reconciled if we determine that any “consideration” to be given the specified factors by the permit grantors should be considerably less than de novo. Thus, it seems that the Administrator is to conduct the primary consideration of the enumerated factors for classes and categories and is to specify to the permit grantors how some variation in the standards should be made in light of those factors. In other words, the permit grantors are to have a limited and carefully circumscribed discretion to take into account factors as specified by the Administrator. To hold that they have no discretion does not make sense in light of the clear command in section 304(b)(1)(B) that the “guidelines” promulgated by the Administrator “specify factors to be taken into account in determining the control measures and practices to be applicable to point sources within such categories and classes.” Nor would it make any sense in light of the very fact that the permit grantors are to be guided by “guidelines.” Finally, it would be inconsistent with Congress’ concern that the guidelines provide precise guidance. As Senator Muskie stated: “Except as provided in Section 301(c) of the Act, the intent is that effluent limitations applicable to individual point sources be as uniform as possible. The Administrator is expected to be precise in his guidelines so as to assure that similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations.” This indicates to us that, while uniformity was clearly a major congressional concern, some amount of local variation, carefully circumscribed by precise guidelines, was contemplated. In short, uniformity was to be achieved by effluent standards within a given category which were similar, rather than identical or unitary. This conclusion is further buttressed by several indications in the legislative history that the guidelines were intended to provide permissible “ranges” of effluent limitations. With respect to the 1977 “BPCTCA” standards the Senate Report, for example, stated: “The Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category.” With respect to the 1983 “BATEA” standards, the same Report continued: “. . . [T]he Committee intends that effluent limitations be based upon application of best available technology as defined by the Administrator. In making the determination of ‘best available’ the Committee expects the Administrator to apply the same principles involved in making the determination of best practicable as outlined above except that rather than the range of levels established in reference to the average of the best performers in an industrial category the range should at a minimum be referenced to the best performer in any industrial category.” Similarly, Senator Muskie, in summarizing the bill as reported out of the House-Senate Conference, stated: “The Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category.” Having concluded that the local permit-issuing authorities have a carefully circumscribed degree of discretion, as evidenced by Congress’ concern that the Administrator’s guidelines “specify factors to be taken into account” and that they provide “ranges,” we are then faced with the problem of reconciling this limited amount of discretion with out previous conclusion that the Administrator has the power to promulgate effluent limitations under section 301. The answer, in our view, lies in the fact that Congress clearly contemplated that there was to be a uniform “ceiling” which no polluter would be permitted to exceed. The key to understanding the interrelationship between sections 301 and 304 can, we believe, be found in the following excerpt from the Senate Report: “In defining best practicable for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of plants, their size and the unit processes involved and the cost of applying such controls. In effect, for any industrial category, the Committee expects the Administrator to define a range of discharge levels, above a certain base level applicable to all plants within that category. In applying effluent limitations to any individual plant, the factors cited above should be applied to that specific plant. In no case, however, should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level.” In our view, the section 301(b) limitations represent a single number effluent limitation which prescribes the minimum amount of control (the “base level”), or conversely, the maximum amount of effluent discharge (a “ceiling”) that is permissible. In determining this “base level,” and concomitant pollutant ceiling, the Administrator is to consider the numerous differences in processes and capabilities of point sources. Having determined the “base level,” and the “ceiling,” he must then promulgate guidelines which are to guide the permit-issuing authorities in deciding whether, and by how much, the limitation to be applied to any individual point source is more stringent than the base level (in terms of requiring more effective technology), and more stringent than the ceiling (in requiring a lower amount of effluent discharge). Thus, we reconcile sections 301 and 304 in the following manner: the section 301 limitations represent both the base level or minimum degree of effluent control permissible and the ceiling (or maximum* amount of effluent discharge) permissible nationwide within a . given category, and the section 304 guidelines are intended to provide precise guidance to the permit-issuing authorities in establishing a permissible level of discharge that is more stringent than the ceiling. Ill We now turn to the regulations being challenged to see if they comply with our interpretation of the statutory scheme. It is immediately apparent that the regulations establish only single number effluent limitations for each of twelve subcategories within the iron and steel industry. While the regulations comply with the requirement in sections 304(b)(1)(A) and 304(b)(2)(A) that they “identify . . . the degree of effluent reduction attainable” through application of the relevant standard of technology (“BPCTCA” or “BATEA”), they do not specify any factors to be taken into account in determining the control measures to be applied to individual point sources within the categories and classes, as required by sections 304(b)(1)(B) and 304(b)(2)(B). Furthermore, they do not specify permissible “ranges” of limitations below the ceiling. The Administrator, however, contends that he satisfied these requirements. In the regulations themselves, he states: “The Agency considers that the limitations already represent ranges, taking into account differences in processes used and other factors. Subcategorization has been used to take these factors into account with different limitations for each subcategory. Within subcategories, exceptions to the limitations have been provided where appropriate, thus constituting a range. Each numerical limitation represents a maximum value over a given period of time. This, in effect, represents a range from zero up to the specific limitation.” 39 Fed.Reg. 24117 (comment # 25). ' We believe that this response is insufficient. We do not agree that the “exceptions” referred to satisfy the “range” requirement, since only one of the twelve subcategories — By-Product Coke —contains any such exception. The statement that a range exists from zero up to the limitation is unsupportable since for all of the subcategories the Administrator concluded, with respect to the new source standards, that a “zero discharge” level was not feasible at this time. Thus, the “range” admittedly encompasses standards that cannot be met. More important, the regulations provide absolutely no guidance to the permit-issuing authorities as to what factors to consider or how to set the particular discharge level within a feasible range below the ceiling established under Section 301(b). Finally, we disagree with the Administrator’s contention that “sub-categorization” provides a range. The Administrator’s subeategorization merely divided the entire iron and steel making industry by means of the types of processes employed, and it does not reflect any of the innumerable differences within the particular subcategories. No guidance is given with respect to the remaining section 304(b) factors, such as age, costs and engineering aspects, which we previously concluded must be “specified” in order to guide the permit grantors in exercising their carefully circumscribed discretion in setting precise standards for individual point sources. The Administrator contends that sufficient flexibility in the regulations is provided through the “variance” procedure, which allows individual discharges to obtain variances from the limitations upon a showing that the factors relevant to a particular point source are “fundamentally different from the factors considered in the establishment of the guidelines.” Our responsibility, however, is not to determine whether the Administrator has provided for flexibility, but whether he has followed the statutory scheme established by Congress. Regardless of whether the establishment of a variance procedure is within the Administrator’s discretion, we do not believe that the Administrator can ignore his obligation to promulgate guidelines specifying factors* to be considered and ranges above a base level. We also note that the variance procedure provides for less flexibility than we believe Congress contemplated, since it permits deviations from otherwise rigid and unitary limitations only where the circumstances of the particular plant are “fundamentally different” than those from which the effluent limitation was derived. Having concluded that the regulations failed to constitute valid “guidelines” (despite their title), since they failed to provide meaningful ranges or guidance in considering individual factors, the question then arises as to the scope of our remand. Should we merely remand for promulgation of guidelines, leaving the single number limitations intact, or should we also remand for reconsideration of the limitations? We conclude that the latter approach is preferable. The guidelines can serve a meaningful purpose under our analysis only if they are coupled with limitations which represent the “ceiling” or maximum degree of effluent discharge permissible. In promulgating these regulations, the Administrator appears to have considered it his duty to establish uniform nationwide limitations, rather than establishing a ceiling with detailed guidelines to guide the grantors within a feasible range below the ceiling. Consequently, although we do not suggest that the present limitations cannot perforce represent ceilings, it is possible that those limitations might be more stringent than they would have been if they had merely been intended to represent such levels. Thus, we believe that the Administrator, in addition to promulgating guidelines, should reconsider the limitations with the base level and ceiling concepts in mind. IV Petitioners raise several other contentions with respect to the process by which the Administrator determined the 1977 “BPCTCA” and 1983 “BATEA” standards in his regulations. As noted in part II of this opinion, we believe it was clearly Congress’ intent, despite the ambiguous wording in section 304(b), that the Administrator consider the enumerated factors in setting standards for classes and categories of industries. Petitioners contend that the Administrator failed to give sufficient consideration to these factors or to articulate his reasoning with sufficient clarity. At the outset, it is important for us to articulate our standard of review. As in other cases involving review of an administrative agency’s rule-making actions we are governed by an “abuse of discretion” standard — in other words, we must not substitute our judgment for that of the agency, but must determine whether the Administrator’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act § 10(e), 5 U.S.C. § 706(2); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Delaware Citizens for Clean Air, Inc. v. Administrator, 480 F.2d 972, 975-76 (3d Cir. 1973). In order to facilitate meaningful judicial review, we should require administrative agencies to “articulate the standards and principles that govern their discretionary decisions in as much detail as possible.” Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 598 (1971). See also Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). However, we should not reverse an agency’s decision that is not fully articulated where we can reasonably discern the basis for the agency’s action. Bowman Transportation, Inc. v. Arkansas — Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Furthermore, the Administrator’s conduct is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, supra, 401 U.S. at 415, 91 S.Ct. 814. A. “Age.” — The first factor enumerated in section 304(b) which petitioners contend the Administrator did not fully consider was that of “age.” Petitioners contend that the Administrator, faced with the statutory mandate to consider age, concluded that age was not relevant. However, this inaccurately states what the Administrator did. The Administrator did in fact consider age, but concluded, after studying the plants sampled, that “the processes and treatment systems are similar regardless of the age and size of the plant. Furthermore, as the regulations themselves state, the division of the industry by process was also, generally speaking a division by age: “The Agency has subdivided the steel making segment primarily along operational lines because the waste water volumes and pollutant parameters vary with the type of operation being conducted. In addition, the processes reflect the age of the technology employed. Subcategorization of coke making by the older beehive and the newer by-product operations and steel making by the older open hearth and the newer basic oxygen and electric arc furnace operations is indirectly subcategorization by age. “The treatment technology to be applied is primarily a function of the' pollutants present and hence is a function of the type of operation conducted. The type of pollutants present is not a function of the size or age of the operating facilities. Land availability for application of the treatment technology is not a function of size or age since many new as well as old mills are limited on the area available for installation of treatment facilities and vice versa . . . Many of the older mills have better treatment than some of the newer ones and vice versa.” 39 Fed.Reg. at 24116, comment # 16 (emphasis added). We believe that this quotation shows that the Administrator did consider age and did sufficiently articulate his reasoning, to the extent that he concluded that age was not by itself relevant to the type of treatment technology or processes to be installed, and that.'separate and explicit categorization by age was not warranted. We further believe, after examining the data in the Final Development Document, that the Administrator’s conclusions in this respect are fully supportable. Where we believe the Administrator erred, however, was in his failure to consider age as it had a bearing on the cost or feasibility of retrofitting plants. While all the plants in a certain older subcategory (e. g., beehive coke) may require the same technological processes to reduce effluent discharges, the fact that all the plants within that subcategory were built long before plants in another subcategory may present special problems in installing anti-pollution devices. Similarly, in a subcategory where there is considerable variation in age, the fact that the processes are similar may mean that the same type of control technology can be installed, but it does not necessarily mean that the ease with which that technology can be installed, or the ability to comply with effluent limitations once it has been installed, is not affected by age. Since we see no evidence that the Administrator considered age in this light, remand is appropriate. If he concludes on remand that age is not relevant to the cost or feasibility of retrofitting plans, as well as to the processes and treatment system, that conclusion will be valid to the extent it is supported by the record. B. “Engineering Aspects. ” — Petitioners raise several points here in contending that the Administrator did not sufficiently consider this factor. They contend, inter alia, that for several subcategories the Administrator has suggested technology which is not currently available; that virtually all of the limitations are based on reduced flow rates which have not been demonstrated; and that many of the limitations are based on transfer technologies but lack guidelines on the engineering requirements for such transfers. Instead of considering these points as they affect the regulations in their entirety, we will defer any consideration of them until part VII of this opinion, in which we consider the specific challenges to individual limitations. The only contention we shall consider here is that in each of two subcategories — vacuum degassing and continuous casting — the Administrator surveyed only two plants which were not representative of the subcategories as a whole. In particular, they contend that the plants surveyed were built on “green field sites,” which enabled them to construct large lagoons for the treatment of waste materials, and that the treatment systems were built simultaneously with the production facilities, thereby making it easier for them to meet effluent limitations than plants which must be retrofitted. The Administrator’s response to petitioner’s challenge is that given the extraordinary complexity of promulgating uniform guidelines and limitations, he cannot be expected to consider all the engineering factors in specific situations. He further contends that, to the extent that a particular plant’s inability to comply with an effluent limitation is attributable to the fact that it is operating under conditions “fundamentally different” than the surveyed plants, it could obtain a variance. Petitioners in support of their challenge have failed to document their assertions that reliance on studies of plants with “unrepresentative” engineering characteristics has resulted in unrealistic limitations. They refer to no record deficiency that would overcome a presumption of regularity in the Administrator’s conduct. Accordingly we are convinced that the regulations cannot be declared arbitrary or capricious on this ground. C. “Non-water quality environmental impact (including energy requirements).” — Petitioners contend that there is no evidence in the record to indicate that the Administrator considered these factors. We disagree, however, and believe that the Final Development Doeument accompanying the regulations (especially section VIII of the Document, found in Appendix at 1522a — 1581a) clearly shows that he did consider them in some detail. For each category, and for each level of technology (1977 “BPCTCA” and 1983 “BATEA” standards), the Administrator considered both the problems of air pollution and solid waste disposal, as well as the problem of additional energy requirements caused by installation of the necessary anti-pollution devices. In the by-product coke subcategory, for example, the Document identified the types of air pollution emissions likely to occur and concluded that “[i]f a vapor recirculation or solvent extraction facility for dephenolization is added to the system, significant reductions in both parameters are achieved.” (Appendix at 1534a). Similarly, the Document identified the solid wastes likely to be generated by treatment systems, and concluded that they could either be internally consumed through reuse in the mill, incinerated, or used as landfill (Id.). With respect to additional energy requirements, the Document estimated the additional annual operating costs in terms of power for each of the two treatment alternatives — $2,175.00 for alternative I, and $31,500.00 for alternative II (Appendix at 1523a). The Administrator then evaluated the overall impact of the limitations on air quality, solid waste problems and energy requirements for all subcategories (Appendix at 1583a — 1584a, 1629a and 1630a), and concluded that “[t]he enhancement of water quality management provided by these proposed effluent limitations substantially outweighs the impact on air, solid waste, and energy requirements” (Appendix at 1584a). Given the failure of petitioners to present contrary evidence as to the effects of the limitations in these areas, we cannot say that the Administrator’s consideration of these factors was insufficient or that his conclusions were arbitrary and capricious. A special problem is presented by CF&I Steel Corporation. As noted at the outset of this opinion, CF&I objects to the effluent limitations on the ground that they did not take into account the problem of water loss caused by recycle systems, a problem which it claims is serious in the arid and semi-arid western states. It appears, however, that CF&I never raised this contention at the agency level, when these regulations were being formulated with extensive participation on the part of the rest of the petitioners. Normally, this would preclude our consideration of this contention for the first time at this stage. See Unemployment Compensation Commission of the Territory of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946); Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 394 (1973). Petitioners claim that the rule barring de novo consideration of challenges to agency action in a reviewing court should not apply here since the agency proceedings were rule-making rather than adjudicatory and since the Administrator failed to follow his mandatory and affirmative responsibility to consider certain statutory factors. Whatever merit there may be to this contention in the abstract, we do not believe that this is an appropriate case to deviate from the general rule. Labelling these proceedings “rule-making” cannot obscure the fact that CF&I’s challenge is to actions of the Administrator which affect it alone. Only three other steel mills in the entire country are located in arid or semi-arid regions, and CF&I is the only company which has alleged that installation of anti-pollution devices would have an adverse effect on the water supply. Thus, this contention is one of particular and localized concern, and was not a problem which we believe was so obvious to the Administrator that it was arbitrary and capricious for him to have failed to consider it sua sponte during the rule-making stage. We believe it would be highly disruptive to the administrative process to allow a company to sit back and wait until the regulations were published in final form before coming forth and contending that the agency had failed to consider the peculiarly local impact of its regulations in a certain region. However, while we do not believe that we can invalidate the regulations on the ground that the Administrator failed to consider this problem, we have already indicated that the matter should be remanded to the Administrator for the promulgation of guidelines and for the reconsideration of the limitations in light of the “base level” and “ceiling” concepts. We do not mean to preclude CF&I from raising its particular concerns about water scarcity in the context of the proceedings on remand. Cf. Portland Cement Association, supra at 394 — 95. D. “Costs. ” — The final factor which petitioners contend the Administrator did not sufficiently consider was that of “costs.” We have already concluded that the Administrator did not sufficiently consider the problem of age as it pertained to the cost and feasibility of retrofitting existing plants, and our present discussion of the cost factor will not repeat what was said previously. Our first task here is to clarify what Congress intended when it directed the Administrator to take costs into account. It is immediately apparent that Congress contemplated that the Administrator should give greater consideration to the cost of compliance when defining 1977 “BPCTCA” technology levels than he should when defining the 1983 “BATEA” levels. Section 304(b)(1)(B), states that the factors relating to an assessment of “BPCTA” “shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” This is in contrast to section 304(b)(2)(B), which merely requires that the assessment of the factors “shall take into account . . the cost of achieving such effluent reduction.” Nevertheless, while costs were intended to be given greater weight in defining “BPCTCA”, it is clear that even with that 1977 standard, the cost of compliance was not a factor to be given primary importance. Furthermore, Congress clearly intended that the Administrator consider costs on a class or category basis, rather than as a plant-by-plant basis. As Senator Muskie stated in support of the House-Senate Conference Committee Report: “The modificátion of subsection 304(b)(1) is intended to clarify what is meant by the term ‘practicable.’ The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources. “The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community.” With respect to the 1983 “BATEA” standards, Senator Muskie intended that the type of assessment should be basically the same, except that there should be no cost-benefit analysis. Although there is some ambiguity as to precisely how much weight should be given to cost, it seems that the Administrator would be governed by a standard of “reasonableness”: “In making the determination of ‘best available’ for a category or class, the Administrator is intended to apply the same principles involved in making the determination of ‘best practicable’ (outlined above), except as to cost-benefit analysis . “While cost should be a factor in the Administrator’s judgment, no balancing test will be required. The Administrator will be bound by a test of reasonableness. In this case, the reasonableness of what is ‘economically achievable’ should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology — without regard to cost.” With respect to the overall impact of the legislation, Congress clearly contemplated that cleaning up the nation’s waters might necessitate the closing of some marginal plants. As Senator Bentsen stated: “There is no doubt that we will suffer some disruption in our economy because of our efforts; many marginal plants may be forced to close.” In sum, while it is clear that the Administrator must consider cost, some amount of economic disruption was contemplated as a necessary price to pay in the effort to clean up the nation’s waters, and the Administrator was given considerable discretion in weighing costs. With these expressions of legislative, intent in mind, we turn to consider the specific points raised by petitioners. Their contentions are essentially twofold: (1) that the Administrator’s consideration of costs was insufficient and incomplete, in part because he excluded certain cost factors and because his promulgation of regulations for only “primary” (or “phase I”) operations precluded him from evaluating the full impact of pollution control devices; and (2) that the Administrator acted arbitrarily and capriciously in promulgating regulations in the face of evidence that many plants cannot raise the necessary capital to finance the installation of anti-pollution devices and would be forced to close. With respect to the first contention, we believe it is clear that the Administrator did consider the cost impact of the regulations. The EPA contractor developed operating and capital cost estimates for each level of technology within each subcategory, and cost-benefit diagrams were prepared for each subcategory. The estimated costs were based on an “average size plant,” as determined from the surveyed plants, and were then multiplied by the total number of facilities within each subcategory to obtain a figure representing the industry-wide costs per subcategory. The EPA also estimated the total cost (including amortization) of complying with both the “BPCTCA” and “BATEA” standards to be $82.3 million, a figure which represented 0.37% of the 1972 gross revenue of the steel industry. It further estimated that the total annual costs for both air and water pollution controls after 1983 would be $1.24 billion, or 5.54% of the industry’s gross revenue in 1972. On the basis of these figures, and after referring to the section of the Final Development Document discussing the deleterious effects of the pollutants sought to be controlled, the Administrator concluded: “The Agency believes that the benefits of thus reducing the pollutants discharged justify the associated costs, which though substantial in absolute terms, represent a relatively small percentage of the total capital investment in the industry.” Given our standard of review of agency action and the relative weights we believe Congress intended the Administrator to assign as between the need for pollution abatement and costs, we conclude that this assessment, when coupled with the economic impact analysis to be discussed below, was neither arbitrary nor capricious. A troublesome question is presented by petitioners’ contention that the costs estimated by the Administrator were artificially low because certain factors were excluded. Petitioners point to the fact that the Final Development Document listed several factors which admittedly affected costs, but which were excluded from the cost analysis. Petitioners contend that these factors, which include such things as land acquisition and site clearance costs, generate costs which are as large as those which the Administrator included in his estimates. However, petitioners have pointed to no data which would support their allegation as to the magnitude of these excluded costs. factors. Furthermore, many of these factors were excluded because they were inherently site-specific or because they could not be evaluated. For these reasons, we do not believe we can conclude that the exclusion of these factors from the costs analysis was arbitrary or capricious. Petitioners’ chief objection here is that since regulations for only primary (or phase I) operations were promulgated, no cost consideration was given to the impact of the yet-to-be-promulgated regulations for secondary operations. The “Kearney Report” estimated that those costs would be very substantial, and that the total water pollution-control costs would be three to five times as high as those for primary operations (Appendix at 214a, 314a). However, we believe that the Administrator acted within the permissible scope of his discretion in dividing the steel industry into two phases. Nothing in the Act precludes him from doing so, and he was operating under rigid time constraints, a court injunction and severe manpower problems. Given our conclusion that the Administrator had the power to promulgate regulations for the two phases separately, we do not believe that the fact that costs were not considered for secondary or phase II operations necessarily requires invalidation of the phase I regulations, for which costs were thoroughly considered. Given Congress’ desire that progress toward pollution abatement be expeditious, we do not think it would be advisable to require that these regulations be stayed until the Administrator has assessed the costs of phase II regulations, and we are limiting the scope of our remand to what we believe are the most essential points. Nevertheless, we are concerned that the Administrator be required at some point to assess the overall impact of his regulations in both phases. Otherwise, it is possible that the Administrator might consider the costs reasonable for each phase separately, without ever considering whether the aggregate costs on a particular industry warrant such strict standards. We thus believe that the competing interests can best be served by requiring the Administrator, when he promulgates the phase II regulations, to evaluate the total costs involved for those regulations as well as for phase I regulations. Turning to petitioners’ other main contention, we are satisfied that the Administrator considered the problem of the industry’s capability of meeting these costs, and we cannot say that his conclusion was arbitrary or capricious. Petitioners rely heavily on the “Kearney Report,” which was commissioned and adopted by the EPA. It is true, as petitioners contend, that this Report predicts that enforcement of the regulations may force some plants to close. However, the Report ' believed that only 9 of the 63 integrated steel plants in the country were “prime candidates for closure or curtailment of a significant portion of their operations,” and these were all identified as “marginal” plants. As the Report concluded: “Generally, it cannot be stated that the problems and costs of pollution control are the only, or even the principal reasons for the potential curtailments of closures of these plants. They have had a history of problems and were considered marginal operations before the impact of pollution control was felt. Rather it can be stated that pollution control is the final blow, like the ‘straw that broke the camel’s back.’ It is entirely probable that some of those plants would ultimately have been partially or entirely close, even without pollution control requirements . . . ” Appendix at 305a. The Report further stated that, on the basis of past experience, it was probable that a significant number of laid off workers (roughly 50%) would be rehired at other plants within the industry. (Appendix at 307a). Petitioners also rely on another report (the “Booz, Allen Report”) as well as on the Kearney Report as support of their contention that they could not raise the necessary capital to finance the expenditure. However, both reports relied in part on the fact that the steel industry at the time was under price controls (Appendix at 258a, 284a, 349a). Subsequent to the publication of those reports, controls were lifted, resulting in a substantial increase in steel prices. Furthermore, the economic position of the steel industry improved dramatically in 1974, to the extent that several companies announced large-scale expansion and modernization plans. The Booz, Allen Report indicated that financing of pollution control devices would be impossible only in the absence of price increases. It further indicated that if an increase in $10 per ton were achieved, the industry could not both expand capacity as desired and install pollution abatement equipment, but would have to make a choice (Appendix at 349a). Given Congress’ clearly expressed concern that pollution control devices be installed even at the expense of some economic dislocation, we cannot conclude that the Administrator’s regulations, to the extent that they would require postponement of capacity expansion in order to install pollution abatement devices, are arbitrary and capricious. It is not the role of the courts to determine whether capacity expansion is preferable to installation of pollution control equipment. Rather, it is a choice for the Administrator to make, governed only by a standard of reasonableness. Youngstown makes a special appeal based on the allegedly disproportionate impact that enforcement of the regulations would have on its plant and on the surrounding community in the Mahoning Valley. However, as the quotation in text accompanying footnote 50 indicates, the Administrator is not required “to consider the location of sources within a category.” Furthermore, the “Ernst and Ernst Report,” which was primarily concerned with the impact in the Mahoning Valley of more stringent water quality standards, concluded that of the several options available to the steel industry in that region, it was most likely that all operations would be maintained. It also noted the possibility that some older and less efficient open hearth furnaces would be replaced by cleaner and more efficient basic oxygen furnaces, and it gave only a 25% chance to the possibility that all of the plants using the open hearth process would be shut down (Appendix at 1026a — 1027a). Finally, we note that the Administrator has indicated that he has not been furnished with sufficient information from the companies themselves to enable him to consider giving special consideration to the Mahoning Valley, and that “companies contending that the effluent limitation guidelines will cause curtailment of operations and heavy unemployment in the Mahoning Valley area will have the opportunity to present detailed technical, cost and financial information to support this contention.” 39 Fed.Reg. 24118. We take the Administrator at his word and expect him to give serious consideration to the Mahoning Valley companies’ request for special consideration upon a furnishing of the necessary data. V In this portion of the opinion, we shall discuss several other contentions raised by petitioners which pertain to alleged deficiencies in the process of establishing the effluent limitations. Petitioners first contend that the limitations should have been established on a net rather than a gross basis. Otherwise, they argue, they would be forced to clean up water that had already been polluted by other companies. They further contend that the varying amounts of pollutants in the intake waters often make it impossible to meet effluent limitations which have been established on a gross basis. We believe that these objections have merit. While we do not think it practical or necessary at this stage to require the recalculation of the limitations to place them all in a net basis, we believe that any individual point source should be entitled to an adjustment in an effluent limitation applicable to it if it can show that its inability to meet the limitation is attributable to significant amounts of pollutants in the intake water. Such an adjustment would seem required by due process, since without it a plant could be subjected to heavy penalties because of circumstances beyond its control. Furthermore, such a plant may risk incurring penalties even though it had installed precisely the same pollution abatement equipment as another plant which, because its intake waters were cleaner, could meet the limitation and thus avoid any fines. The Administrator has recognized this problem and has proposed regulations specifying those situations in which the Regional Director “may” allow a credit for pollutants already present in the intake waters. While these regulations have not yet been promulgated, the Administrator contended at oral argument that the Regional Directors are in fact making allowances at this time for such pollutants. However, the absence of any final written regulations and of any record evidence as to the basis on which such allowances are made prevents us from conducting any meaningful judicial review. Considering the importance we give to this problem, we cannot rely on mere oral assurances by the Administrator that allowances are already being made. Furthermore, the Administrator’s response to petitioners’ comment requesting net limitations appears to indicate that the Regional Administrator would be given some discretion in deciding whether to make an allowance. We believe that the scope of this discretion should be carefully defined and that the Administrator (as well as any state permit-issuing authorities) should be clearly instructed as to those circumstances under which a credit must be given. Consequently, we conclude that on remand the regulations should be revised to establish precise guidelines for the making of such allowances. Petitioners’ remaining contentions are without merit. They first contend that the regulations are arbitrary and capricious because the “variance” procedure has not yet been established. It is clear, however, that the Administrator did introduce into the regulations for each subcategory a provision which would allow the permit issuers to modify the effluent limitation applicable to a particular point source upon a showing that the factors relating to that source’s ability to comply with the limitations are “fundamentally different from the factors considered in the establishment of the guidelines.” Petitioners nevertheless claim that because the Administrator subsequently requested public comment on how the váriance provision should be applied and interpreted, the procedure was still not established. While it is true that the variance procedure has not been definitively delineated, we believe it was clearly established and that is an operative part of the regulations. Furthermore, we note that, because of our remand for the promulgation of guidelines and the reconsideration of the limitations in light of the base level concept, the flexibility provided by the variance procedure may not necessarily be brought into play. Petitioners also argue that the Administrator erred in failing to establish the monthly average of effluent loads permissible on a long-term (preferably, a yearly) basis. While conceding that the regulations permit a daily variation of up to three times the monthly average, petitioners contend that the failure to premise a monthly average on a long-term basis does not sufficiently recognize the possibility of monthly variations in effluent discharges that are bound to occur even with the best technology. However, we do not see how the failure to establish a monthly average in this fashion constitutes an abuse of discretion, especially considering the statutory time constraints on the Administrator which would have precluded a year-long sampling effort. Finally, we reject petitioners’ contention that the regulations are invalid because the Administrator failed to use an adequate data base from which to promulgate them. Given the Administrator’s clear mandate to press the development of technology, we do not believe it was necessarily an abuse of discretion to base the regulations on results obtained from a few plants which were using the best technology. Rather than invalidate the regulations across the board, we believe it is more appropriate to focus on whether there is record evidence showing that any particular limitation resulting from this data base is lacking in feasibility. We shall consider that question in part VII of this opinion. VI Thus far, we have been addressing petitioners’ various contentions pertaining to the Administrator’s promulgation of regulations for existing point sources under sections 301 and 304 of the Act. In this section we shall consider petitioners’ challenge to the Administrator’s interpretation of his power to promulgate effluent limitations for new point sources under section 306. As noted previously, the existence of the Administrator’s power to promulgate such limitations— unlike that of his power to promulgate effluent limitations for existing sources under section 301 — -is clear and unquestioned. The principal issues here are whether the Administrator erred in adopting standards for new sources which were identical to the existing source standards to be applicable in 1983 and whether he erred in relying on his consideration of the factors enumerated in section 304 to satisfy the requirements of section 306. The Act refers to three distinct levels of technology which must be attained. For existing sources, the standard to be applicable in 1977 is the “best practicable control technology currently available,” or “BPCTCA.” The 1983 standard for existing sources is the “best available technology economically achievable,” or “BATEA.” The standard applicable to new sources is the “best available demonstrated control technology,” or “BADCT.” It is unquestioned that the 1977 “BPCTCA” is the least stringent of the three. The dispute focuses on the relative degree of stringency between the 1983 “BATEA” standards and the new source “BADCT” standards. The Administrator took the view that these two standards were essentially similar. In his establishment of “BADCT” standards, he merely incorporated by reference the relevant “BATEA” standards. The only independent analysis he conducted in defining “BADCT” levels was to determine as required by section-306, whether a “zero discharge” level was “practicable.” Since he determined in each case that a “zero discharge” level for new sources was not practicable, he merely adopted the “BATEA” standards. Petitioners, however, contend that the new source standards should be less stringent than the 1983 “BATEA” standards, since the Act requires that the new source standards be “demonstrated” and that they be achievable now rather than by 1983. We reject petitioners’ contention that it was necessarily error for the Administrator to equate the two standards. While it is true that the new source standards, unlike the 1983 standards for existing sources, must be based on technology whose present availability is “demonstrated,” it is clear that Congress did not intend by that phrase to limit the technology to that which is widely in use. As the House Report stated: “It will be sufficient, for the purpose of setting the level of control under available technology, that there be one operating facility which demonstrates that the level can be achieved or that there is sufficient information and data from a relevant pilot plant or semi-work plant to provide the needed economic and technical justification for such new source.” Furthermore, Congress was clearly appreciative of the fact that the most effective and least expensive approach to water pollution would be to prevent new water pollution problems by requiring “maximum feasible control of new sources, at the time of their construction.” Thus, Congress recognized that new sources could attain discharge levels more easily and at less cost than existing sources which must be retrofitted. As the House Report stated: “In section 306, the Committee recognizes two of the most significant factors in the attainment of clean water. These factors are (1) the need to preclude the construction of new sources or the modification of existing sources which use less than the best available control technology for the reduction or elimination of the discharge of pollutants, and (2) the recognition of the significantly lower expense of attaining a given level of effluent control in a new facility as compared to the future cost of retrofitting a facility to meet stringent water pollution control measures.” This awareness of the lower costs that would be incurred by new sources led Congress to require that less weight be given to costs under section 306 than under section 304. As Senator Muskie stated with reference to the Administrator’s requirement to consider costs under section 306: “The Conferees would expect that this cost test would be considerably more restrictive than the test which would be applied to ‘best available technology’ because pollution control alternatives are available to a new source which are not available to existing sources.” In sum, given Congress’ clearly expressed belief that it would be easier for new sources to attain a particular level of effluent control than it would be for existing sources, and given the fact that the Administrator was permitted to rely on pilot projects (or “transfer technology”) to determine whether a particular standard was “demonstrated,” we do not believe that it was arbitrary or an abuse of discretion for the Administrator to equate the “BADCT” levels for new sources with the “BATEA” levels for existing sources. The fact that Congress anticipated that new sources could achieve particular effluent limitations more easily than existing sources points in the direction of greater stringency for new source standards and counter-balances somewhat the requirement that technology for new sources be “demonstrated” — a requirement which, as we have seen, can be met through reliance on pilot projects. We thus conclude that it was not necessary for the Administrator to conduct a separate study of technology for new sources and that he acted within the permissible scope of his discretion in relying on the portions of the Final Development Document which discuss the “BATEA” standards. Rather than invalidate the section 306 limitations totally, we believe it is more appropriate to examine each one being challenged to determine whether the record supports the Administrator’s conclusion that the standard has been “demonstrated.” Petitioners also contend that the Administrator failed to consider factors which section 306 required him to consider in establishing new source standards. These factors are basically the same as those which must be considered under section 304, with one obvious and notable exception — the factor of age. Since we concluded in part IV of this opinion that age was the only factor that the Administrator did not sufficiently consider, and since we have held that the consideration that went into the existing source standards could properly be relied on as a basis for the new source standards, part IV of this opinion controls petitioners’ contentions here. We believe it is appropriate to make only one further comment. Petitioners contend that the Administrator failed “to make the requisite cost/benefit analysis.” However, no cost/benefit analysis is required under section 306. Rather, the Administrator is required only to take costs “into consideration.” This language is virtually identical to that appearing in section 304(b)(2)(B), which requires the Administrator to take costs “into account” in assessing “BATEA” levels and which is distinct from the limited cost/benefit analysis required in section 304(b)(1)(B). Furthermore, as can be seen from the quotation of Senator Muskie in the text accompanying footnote 72 of this opinion, cost was to be given even less weight under section 306 than for existing sources. VII In this section of the opinion we consider petitioners” arguments that the specific limitations for both new and existing point sources are too stringent. It is first necessary to explain how our consideration of these contentions is affected by our earlier discussion. With respect to the new source standards promulgated under section 306, we found no error in the process by which those standards were formulated. The only error we found regarding the existing source limitations which would also affect the new source standards was the failure to give a credit where noncompliance was attributable to pollutants in the intake waters. While remand of the section 306 limitations is required so that the regulations can be redrafted to provide for credits as required in part Y of this opinion, there is no need on remand to reconsider those limitations themselves across the board. Consequently, it is essential that we consider the technological challenges to the new source standards at this time. With respect to the existing source standards, we have previously indicated that, in addition to the necessity to promulgate regulations pertaining to credits where the intake waters are polluted, remand is necessary to promulgate guidelines under section 304, to reconsider the limitations in light of the “base level” and “ceiling” concepts and to consider more fully the factor of age. See parts III and IV(A) of this opinion. In many cases, it might be preferable to defer considering the technological challenges to existing source limitations until the proceedings on remand are completed, since the limitations might be relaxed somewhat in light of the “base level” and “ceiling” concepts. We believe, however, that it is appropriate to consider them now. As a matter of judicial economy, and given Congress’ desire to move expeditiously in attacking the problems of water pollution, we do not think it would be advisable to postpone consideration of the technological challenges until the remand proceedings are completed several months hence. Furthermore, we note that the challenges to the 1977 “BPCTCA” levels of technology are very few in number, and the challenges to the 1983 “BATEA” standards are of a general rather than specific nature. Finally, we note that under petitioners’ own construction of the statute, any limitation which is sufficiently “demonstrated” to be a valid new source standard must also be a valid 1983 “BA-TEA” limitation. Thus, our consideration of the technological challenges to the new source standards (which we must make) will necessarily have considerable bearing on the validity of the 1983 “BATEA” standards. We emphasize, however, that our holding that whether limitations have been sufficiently demonstrated for purposes of “BA-TEA” and “BPCTCA” standards merely means that those limitations represent achievable points within a feasible range and that the Administrator must not automatically assume that the present limitations can represent permissible “ceilings.” A: The 1977 “BPCTCA” Limitations Petitioners challenge the 1977 limitations with respect to only two subcategories: by-product coke and sintering. They make two points regarding the by-product coke limitations. First, they contend that an effluent “flow rate” of 175 gallons per ton of coke produced was unrealistic, and assert that the Administrator disregarded evidence that a 300 gallon per ton flow rate was the best practicable. However, two of the four by-product coke plants surveyed (plants A and B) were attaining a flow rate less than the 175 gallon per ton level. Furthermore, petitioners’ recommendation of a 300 gallon per ton flow rate follows that of the “Koppers Report,” which recommended a flow rate which had been doubled through a 1:1 dilution. Neither petitioners nor the Koppers Report explain why such a dilution is necessary, and the undiluted flow rate recommended by Koppers would be less than 175 gallons per ton. Under these circumstances, we cannot conclude that the Administrator’s figure of 175 gallons per ton was “arbitrary” or “capricious.” Petitioners’ second point is that the 1977 limitations regarding ammonia discharge from by-product coke plants are without support. Petitioners contend that use of a bio-oxidation facility as recommended by the Administrator will actually increase the amount of ammonia in the effluent. However, biological treatment is only one of two alternative treatment systems. Two of the other plants surveyed which used the other treatment alternative (one which provides for physical and chemical treatment) achieved the effluent limitation. So long as the limitation can be achieved through the use of one of the alternatives, it is valid. Furthermore, even in the one plant using the bio-oxidation process, ammonia was removed from the waste water at a rate of 28.8% (Appendix at 1469a), thus undercutting petitioners’ claim that the process increased ammonia discharge. While that removal rate was not sufficient to meet the 1977 “BPCTCA” limitation, the Administrator noted that the plant “was not employing the ammonia removal step ahead of the biological system as proposed in the treatment schematic.” Petitioners' challenge to limits in the sintering subcategory is based on the fact that the sampled plants had a wet cleaning system only on the “deduster” end, whereas the limitations were applicable to sintering plants with wet cleaning systems on both the “deduster” and the “wind-box.” They therefore contend that the limitations were based on unrepresentative plants and were thus too restrictive. The Administrator responds by claiming that any sinter plant with wet systems on both ends can obtain a variance under 40 C.F.R. § 430.32 on the ground that such plants operate under conditions “fundamentally different” than the tested plants. This response is satisfactory to us and would appear to fully meet petitioners’ objection. We thus reject all of petitioners’ challenges to the “BPCTCA” limitations. B: The 1983 “BATEA” Limitations As noted previously, petitioners’ objections to the 1983 “BATEA.” standards are very general. Essentially, they repeat their allegations with respect to the new source standards, which are discussed in part VII(C) of this opinion. They also contend that reliance on transfer technology was improper. However, given the Act’s mandate to the Administrator to press the development of technology, reliance on transfer technology was clearly proper. As Senator Muskie stated: “The distinction between ‘best practicable’ and ‘best available’ is intended to reflect the need to press toward increasingly higher levels of control in six-year stages. Through the research and development of new processes, modifications, replacement of obsolete plans and processes, and new improvements in technology, it is anticipated that it should be possible, taking into account the cost of controls, to achieve by 1983 levels of control which approach and achieve the elimination of the discharge of pollutants.” Furthermore, since we have concluded that reliance on pilot plant technology was proper in establishing limitations for new sources, it should also be proper in establishing 1983 “BATEA” limitations for existing sources. Finally, petitioners contend that because the 1983 standards are not to be applicable for another eight years and because they were published under severe time pressures and were based on “guesswork,” they should be remanded for more careful consideration. As petitioners acknowledge, however, the Act contemplates that the section 301 limitations be reviewed “at least every five years.” We believe it is premature for petitioners to insist on such review now. Rather, we believe that the Act contemplates a period of a few years after which the accuracy of the Administrator’s evaluations and projections can be reviewed in the light of actual experience. C: The New Source Standards 1. Flow Rates. — Petitioners first challenge the 100 gallon per ton flow rate for new by-product coke plants. As noted previously, we are satisfied that the Administrator did not act arbitrarily and capriciously in using a 175 gallon per ton flow rate for 1977 “BPCTCA” limitations in the by-product coke subcategory. However, we agree with petitioners that a 100 gallon per ton flow rate has not been “demonstrated.” None of the sampled plants achieved such a flow rate, and the Administrator has not pointed to any transfer technology indicating that such a flow rate is achievable for by-product coke. The Administrator instead relies on the Koppers Report, claiming that the Report’s recommendation supports a 100 gallon per ton rate. The Koppers Report, however, merely makes a recommendation, and even that is for a 300 gallon per ton rate. Even if the Administrator is correct in saying that a 1:1 dilution is not necessary and that certain effluents were improperly included in the Koppers Report, we do not believe that the “recommendation” there can satisfy the requirement in section 306 that the technology be “demonstrated.” We see no evidence in the record that an actual plant — pilot project or otherwise — has achieved a 100 gallon per ton flow rate. Thus, the new source standards for byproduct coke should be reconsidered in light of a new and “demonstrated” flow rate. Petitioners also contend that the flow rates for the sintering, blast furnace, basic oxygen furnace (“BOF”) and continuous casting subcategories were not supported by the record. Petitioners contend that the flow rates have not been demonstrated, but were based on the Administrator’s belief as to the viability of “recycle systems.” Petitioners contend that such systems are not viable because of problems of plugging, scaling and corrosion. While the evidence in the record as to the severity of the plugging and scaling problem is quite sketchy, we believe that petitioners have raised a valid point and that remand is appropriate for further consideration of this problem. In the sintering subcategory, for example, the “BATEA” and “BADCT” flow rates were set at 50 gallons a ton, but the only plant on which full data were obtained (Plant J, which already used a recycle system) had a flow rate of 114 gallons per ton. In the Final Development Document, the Administrator concluded that this figure was “excessive” and could be reduced by more than 50 per cent simply by “tightening up the recycle loop.” However, he then noted: “In doing this, more attention may have to be paid to control of heat buildup and scaling and/or corrosive conditions in the recycle systems.” This strikes us as a virtual confession that it has not been “demonstrated” that a 50 gallon per ton flow rate can be achieved in the absence of scaling and corrosion. Furthermore, petitioners contended in a submission to the Administrator that “even with the 114 gallon/ton Plant ‘J’ has abandoned approximately 90% of the wet system because of excessive scaling.” (Appendix at lilla). If this fact is true, it would raise serious questions as to whether the viability of recycle systems has been demonstrated. The Administrator, however, relied on transfer technology from the Open Hearth and BOF recycle systems, which had actually achieved flow rates of 50 gallons per ton. He concluded that “the technology should be readily transferable to a sinter plant, since the type of recycle system and many of the aqueous contaminants are identical.” Petitioners contend that, at least with respect to the BOF process, the surveyed plants did not show that a 50 gallon per ton flow rate could be achieved in the absence of plugging problems. While Plant “S” attained a flow rate of 52.2 gallons per ton, petitioners contend that that plant used an “off gas” (or “OG”) system which treated less gas and did not become as hot as a typical BOF system. Thus, they assert that there was less evaporation and consequently a smaller build-up of solids that would cause plugging. They further contend that there are only two OG systems in the country. We see no evidence that the Administrator in his response to petitioners’ comments considered whether the lack of plugging and scaling in Plant “S” (which did not meet the 50 gallon per ton rate anyway) was attributable to its use of an OG system, which might make it unrepresentative of the BOF subcategory. The Administrator also relies on the results obtained from Plant “V,” another BOF plant, which allegedly attained a flow rate of 33 gallons per ton through use of a typical treatment system. Petitioners contended below that the flow rate must have been merely an estimate, since no water flow measurements could be found in the EPA contractor’s report. They further contended that recent flow measurements at the plant showed that the actual water use was more than twice the figure used by the contractor, and that such higher water use was necessary to prevent plugging problems. The Administrator responded to this by asserting that “other information available to the agency indicates that the actual rate is less than 250.3 1/kkg (60 gallons per ton) and also that the plugging problems resulted not from operating the BOF scrubber portion of this multi-purpose system at the design rate, but due to problems in the other part of the systems.” However, the Administrator never specified what this “other information” was. In light of his failure to do so, meaningful judicial review of his conclusion is impossible. We thus believe that there are a number of serious questions concerning the viability of recycle systems as they pertain to the sintering and BOF subcategories. With respect to the blast furnace and continuous casting subcategories, we are satisfied from the record that the “BATEA” and “BADCT” flow rates of 125 gallons per ton were demonstrated, and petitioners have pointed to no record evidence of plugging or scaling in those plants. The Administrator may, of course, rely on transfer technology in establishing the flow rates for the sintering and BOF subcategories. However, in view of the questions that have been raised, we believe that remand is necessary so that the Administrator can more fully consider the plugging and scaling problem and can more fully articulate the reasoning for his conclusion that the 50 gallon per ton flow rates for the sintering and BOF subcategories have been “demonstrated.” 2. The Limitations. — Petitioners challenge the BADCT standards for by-product coke on the ground that neither of the two alternative technologies relied upon to achieve the standards have been “demonstrated.” While we tend to agree with petitioners that one of the two alternatives (the “multistage” biological treatment systems) has not been demonstrated, we are satisfied that the second alternative, which utilizes “alkaline” (or “breakpoint”) chlorination and “carbon adsorption,” has been sufficiently demonstrated. As long as there is one demonstrated method of attaining the limitation, the limitation is valid. Petitioners’ challenge to the alkaline chlorination process is basically two-fold: that it has never been demonstrated on by-product coke wastes, and that the chlorination process gives off chlorinated organics which are potentially more dangerous than the pollutants sought to be removed. With respect to the first point, the Administrator relied on transfer technology from other industries (particularly the electroplating and water treating industries), and petitioners have pointed to no evidence why such transfer would not be appropriate. Furthermore, petitioners admit that alkaline chlorination has been demonstrated on blast furnace effluent in a “once-through” system but contend, without pointing to any evidence in support of their view, that such a process would not work in a recycled system. With respect to the problem created by chlorinated organics, the Administrator responds that the addition of the carbon adsorption process after chlorination was prescribed specifically to remove such chlorinated organics. Furthermore, carbon adsorption has been applied on a large-scale basis in the petroleum industry for years, and petitioners have pointed to no evidence indicating that the use of such transfer technology is inappropriate. In the absence of such evidence, we cannot say that the reliance on such transfer technology was arbitrary or an abuse of discretion. Petitioners’ next challenge is to the “BATEA” and “BADCT” limitations for suspended solids in the continuous casting subcategory. However, an examination of the record shows that one plant (Plant “AE”) clearly achieved the limitations. Petitioners contend that the results from that plant are not achieved on a continuous basis and thus did not reflect the varying characteristics of the intake waters. We have already held, however, that the Administrator must make a provision in the regulations which entitles a point source to a credit when it shows that its inability to meet an effluent limitation is attributable to substances in the intake waters. See part V of this opinion. We believe that such a provision would meet petitioners’ objection to this limitation and would protect them from the imposition of penalties because of circumstances beyond their control. Petitioners also challenge the “BATEA” and “BADCT” suspended solid limitations for the BOF and vacuum degassing subcategories, contending that the technology for achieving those limitations has not been demonstrated. After examining the record, however, we are satisfied that the achievability of a 25 mg/1 limitation has been demonstrated for the BOF subcategory. Two plants in the BOF subcategory achieved limitations of 23 and 26 mg/1. However, none of the vacuum degassing plants surveyed appears to have achieved this limitation. Rather, the Final Development Document merely states that all the critical parameters in the vacuum degassing operations were found to be the same as those for the open hearth subcategory. However, none of the open hearth plants achieved the limitation either. The Final Development Document judged the performance of the surveyed open hearth plants to be “uniformly inadequate” and stated: “As with the similarly operated BOF wet recycle systems, less than 25 mg/1 suspended solids can readily be achieved.” This statement may be supportable, but we hesitate to accept such a conclusory statement on this record, at least insofar as it is relied on to support the limitation for the vacuum degassing subcategory. This is a reliance on a transfer on top of a transfer, without any explanation, and the ultimate source of this transfer twice removed — the BOF subcategory — establishes a valid limitation only if the flow rate can be termed “demonstrated.” Thus, we believe the Administrator should be required to explain in more detail why the reliance on transfer technology is permissible in establishing the “BATEA” and “BADCT” limitations for suspended particles in the vacuum degassing category. Finally, petitioners challenge the 20 mg/1 fluoride limitation for the BOF subcategory. The one BOF plant studied had what was equivalent to a 63 mg/1 fluoride discharge. However, the Administrator adopted the same approach as he did in the sintering subcategory and concluded that the limitation could be met by “lime precipitation” of fluoride, a technology deemed “readily transferable” from raw waste treating plants to waste-water treatment in the steel industry. Petitioners claim that this “theoretically” transferable technology fails to give consideration to a number of factors, but cites no record evidence as to their importance and offers no convincing explanation as to why the fluoride treatment technology, which has been successfully used on a full-scale basis in other industries, is not easily transferable to the BOF process. In addition to challenging the above limitations as not being demonstrated, petitioners contend that no justification has been given for the 20 mg/1 fluoride limitation in the sintering, blast furnace, BOF, open hearth and electric arc subcategories, or for the 5 mg/1 zinc limitation in the open hearth, electric arc and . vacuum degassing subcategories. However, it appears that these two elements were both present in the discharge of existing plants in those subcategories, and thus it was reasonable to assume that they would also be present in the discharge of new sources using the same raw materials. The Final Development Document also discusses the adverse environmental impact of fluoride and zinc. However, the Administrator admits that “there is some evidence that zinc ions are adsorbed strongly and permanently in silt, resulting in inactivation of the zinc.” In light of this admitted evidence, we believe that the Administrator should explain more fully why a zinc limitation is necessary. VIII Accordingly, the matter will be remanded to the Environmental Protection Agency for further proceedings consistent with this opinion. ADDENDUM Relevant parts of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1251, et seq. [Those portions which are of special importance have been italicized for emphasis.] SECTION 101 § 1251. Congressional declaration of goals and policy. (a) The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter— (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works; (5) it is the national policy that area-wide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and (6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans. (b) It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution and to provide Federal technical services and financial aid to State and interstate agencies arid municipalities in connection with the prevention, reduction, and elimination of pollution. ****** SECTION 301 § 1311. Effluent limitations. (a) Illegality of pollutant discharges except in compliance with law. Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. (b) Timetable for achievement of objectives. In order to carry out the objective of this chapter there shall be achieved— (1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 1314(b) of this title, or (ii) in the case of a discharge into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, which shall require compliance with any applicable pretreatment requirements and any requirements under section 1317 of this title; and (B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 1283 of this title prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 1314(d)(1) of this title; or, (C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter. (2)(A) not later than July 1, 1983, effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2) of this title, which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 1325 of this title), that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2) of this title, or (ii) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, shall require compliance with any applicable pretreatment requirements and any other requirement under section 1317 of this title; and (B) not later than July 1, 1983, compliance by all publicly owned treatment works with the requirements set forth in section 1281(g)(2)(A) of this title. (c) Modification of timetable. The Administrator may modify the ■requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. (d) Review and revision of effluent limitations. Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph. (e) All point discharge source application of effluent limitations. Effluent limitations established pursuant to this section or section 1312 of this title shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this chapter. (f) Illegality of discharge of radiological, chemical, or biological warfare agents or high-level radioactive waste. Notwithstanding any other provisions of this chapter it shall be unlawful to discharge any radiological, chemical, or biological warfare agent or high-level radioactive waste into the navigable waters. (June 30, 1948, ch. 758, Title III, § 301, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 844.) SECTION 302 § 1312. Water quality related effluent limitations. (a) Whenever, in the judgment of the Administrator, discharges of pollutants from a point source or group of point sources, with the application of effluent limitations required under section 1311(b)(2) of this title, would interfere with the attainment or maintenance of that water quality in a specific portion of the navigable waters which shall assure protection of public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced pollution of shellfish, fish and wildlife, and allow recreational activities in and on the water, effluent limitations (including alternative effluent control strategies) for such point source or sources shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality. (b) (1) Prior to establishment of any effluent limitation pursuant to subsection (a) of this section, the Administrator shall issue notice of intent to establish such limitation and within ninety days of such notice hold a public hearing to determine the relationship of the economic and social costs of achieving any such limitation or limitations, including any economic or social dislocation in the affected community or communities, to the social and economic benefits to be obtained (including the attainment of the objective of this chapter) and to determine whether or not such effluent limitations can be implemented with available technology or other alternative control strategies. (2) If a person affected by such limitation demonstrates at such hearing that (whether or not such technology or other alternative control strategies are available) there is no reasonable relationship between the economic and social costs and the benefits to be obtained (including attainment of the objective of this chapter), such limitation shall not become effective and the Administrator shall adjust such limitation as it applies to such person. (c) The establishment of effluent limitations under this section shall not operate to delay the application of any effluent limitation established under section 1311 of this title. (June 30, 1948, ch. 758, Title III, § 302, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 846.) SECTION 304 § 1314. Information and guidelines. (a) Criteria development and publication. % * ¡H * sfs * (b) Effluent limitation guidelines. For the purpose of adopting or revising effluent limitations under this chapter the Administrator shall, after consultation with appropriate Federal and State agencies and other interested persons, publish within one year of October 18, 1972, regulations, providing guidelines for effluent limitations and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall— (1)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources (other than publicly owned treatment works); and (B) specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 1311 of this title shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate; (2) (A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources (other than publicly owned treatment works); and (B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 1311 of this title to be applicable to any point source (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate; and (3) identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants. SECTION 306 § 1316. National standards of performance. (a) Definitions. For purposes of this section: (1) The term “standard of performance” means a standard for the control of the discharge of pollutants which reflect the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants. (2) The term “new source” means any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section. sfc :fc cfc He He * (b) Categories of sources; Federal standards of performance for new sources. (1)(A) The Administrator shall, within ninety days after October 18, 1972, publish (and from time to time thereafter shall revise) a list of categories of sources, which shall, at the minimum, include: s|« sfc sfs * sfc * iron and steel manufacturing; sfc He H: sfc H: H= (B) As soon as practicable, but in no ease more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Administrator shall propose and publish regulations establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one hundred and twenty days after publication of such proposed regulations, such standards with such adjustments as he deems appropriate. The Administrator shall, from time to time, as technology and alternatives change, revise such standards following the procedure required by this subsection for promulgation of such standards. Standards of performance, or revisions thereof, shall become effective upon promulgation. In establishing or revising Federal standards of performance for new sources under this section, the Administrator shall take into. consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements. (2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards and shall consider the type of process employed (including whether batch or continuous). (3) The provisions of this section shall apply to any new source owned or operated by the United States. * * * * * * SECTION 316 § 1326. Thermal discharges. * * * * * * (b) Cooling water intake structures. Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. (c) Period of protection from more stringent effluent limitations following discharge point source modification commenced after October 18, 1972. Notwithstanding any other provision of this chapter, any point source of a discharge having a thermal component, the modification of which point source is commenced after October 18, 1972, and which, as modified, meets effluent limitations established under section 1311 of this title or, if more stringent, effluent limitations established under section 1313 of this title and which effluent limitations will assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made, shall not be subject to any more stringent effluent limitation with respect to the thermal component of its discharge during a ten year period beginning on the date of completion of such modification or during the period of depreciation or amortization of such facility for the purpose of section 167 or 169 (or both) of Title 26, whichever period ends first. (June 30, 1948, ch. 758, title III, § 316, as added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 876.) SECTION 401 § 1341. Certification. (a) Compliance with applicable requirements; application; procedures; license suspension. (1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sections 1316 and 1317 of this title, the State shall so certify, except that any such certification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be. * % * * ^ * SECTION 402 § 1342. National pollutant discharge elimination system. (a) Permits for discharge of pollutants. (1) Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter. (2) The Administrator shall prescribe conditions for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. (3) The permit program of the Administrator under paragraph (1) of this subsection, and permits issued thereunder, shall be subject to the same terms, conditions, and requirements as apply to a State permit program and permits issued thereunder under subsection (b) of this section. % !(s (b) State permit programs. At any time after the promulgation of the guidelines required by subsection (h)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administration a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each submitted program unless he determines that adequate authority does not exist: (1) To issue permits which— (A) apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 1316, 1317, and 1343 of this title; $ Sfc % # % * (d) Notification of Administrator. (1) Each State shall transmit to the Administrator a copy of each permit application received by such State and provide notice to the Administrator of every action related to the consideration of such permit application, including each permit proposed to be issued by such State. (2) No permit shall issue (A) if the Administrator within ninety days of the date of his notification under subsection (b)(5) of this section objects in writing to the issuance of such permit, or (B) if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this chapter. ****** SECTION 501 § 1361. Administration. (a) Authority of Administrator to prescribe regulations. The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter. ****** SECTION 505 § 1365. Citizen suits. (a) Authorization; jurisdiction. Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. ****** (f) Effluent standard or limitation. For purposes of this section, the term “effluent standard or limitation under this chapter” means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) certification under section 1341 of this title; or (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title). ****** SECTION 509 § 1369. Administrative procedure and judicial review. ****** (b)(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. . 39 Fed.Reg. 24114, 40 C.F.R. § 420.10 et seq. . 33 U.S.C. § 1362(14) defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” . Regulations for “secondary” (or finishing) operations have not yet been promulgated. . 33 U.S.C. § 1251 et seq. (Supp. II 1972). The relevant sections of the Act are set out in full in the appendix to this opinion. . 33 U.S.C. § 1369(b)(1). . The power of the Administrator to establish such limitations for new point sources under § 306 of the Act, 33 U.S.C. § 1316, is unquestioned. Thus, petitioners’ challenge to the new source regulations, discussed in parts VI and VII of this opinion, takes a different approach. . 33 U.S.C. § 1311. . Id. § 1314. . Id. § 1342. . Id. § 1316(b)(1)(B). . Id. § 1317(a)(2). . Id. § 1317(b). . Id. § 1313(b). . It is undisputed that the Administrator did not even consider this evaporation problem. But see Part IV(c) of this opinion. . See part I of Judge Adams’ opinion in which Judge Garth and I join. As part I of that opinion aptly notes, Congress’ failure to express more clearly its intent on such a crucial matter is indeed disturbing and we hope that Congress will heed our admonition to draft its legislation with greater clarity. The admitted ambiguities in this Act, however, cannot be an excuse to avoid deciding the case before us, and we are satisfied that our resolution of the Act’s ambiguities is the one most consistent with Congress’ expressed intent. . In fact, § 301(c) itself seems to support the Administrator’s position by presupposing the existence of a section 301 effluent limitation which the Administrator can relax. Petitioners, noting that § 301(c) empowers the Administrator to “modify the requirements” of § 301(b)(2)(A), contend that this merely means that the Administrator may relax the requirement that “BATEA” technology be used. However, it is clear from Senator Muskie’s statement in support of the Conference bill that Congress contemplated the relaxation of limitations: “The Conferees have provided, however, a mechanism for individual point-source-by-source consideration in section 301(c). That section provides that the Administrator may modify any effluent limitation based on ‘best available technology’ to be achieved by July 1, 1983 . . . [Emphasis added].” Environmental Policy Division of the Library of Congress, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm. Print 1973), at 172 [hereinafter, “Leg.Hist.”]. . In the original Senate bill, S. 2770, § 509(b)(1) contained essentially the same language it does now [see Leg.Hist. at 1713], while § 301(c) was what is now § 301(d), and no subsection in § 301 contained what is now § 301(c) [see Leg.Hist. at 1610]. It is clear that what is now § 301(c) was added during the House-Senate Conference. See Leg.Hist. at 172 and 304. We also see no merit to petitioners’ contention, advanced in their Reply Brief, that the initial bill’s distinction between the Administrator’s actions having a national impact and those having a local impact, the former to be reviewable in the District of Columbia Circuit and the latter in the Circuit of the affected locality, somehow is support for their position that effluent limitations can only be established locally. To the extent that Congress ever intended that, this view would seem hard to reconcile with enacted version of section 509, which draws no distinction between “national” standards and “local” effluent limitations. Furthermore, even if Congress had considered § 301 limitations to have a local impact, in contrast to unspecified “federal standards,” the earlier version of § 509 still provided for judicial review “of the Administrator's action in approving or promulgating” section 301 limitations. The fact that Congress may have thought that the impact was local does not mean that the Administrator does not have the power to promulgate such limitations. Congress may instead have recognized that some “national” limitations may have a predominantly local impact on those industries which are concentrated primarily in one region of the country. . 33 U.S.C. § 1365. . The Senate Report states, with reference to section 505, that “[i]n addition to violations of Section 301(a), citizens are granted authority to bring enforcement action for violations of effluent limitations under section 301 . and any condition of any permit issued under section 402.” Leg.Hist. at 1500. . 33 U.S.C. § 1341(a)(1). . See § 501(a), 33 U.S.C. § 1361(a), which provides: “The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under the Act.” . 33 U.S.C. § 1312(c). . Id. § 1326(b). . Id. § 1326(c). . Leg.Hist. at 1468 (emphasis added). The bill as enacted, of course, had a date of July 1, 1977 instead of January 1, 1976. . Leg.Hist. at 169. . Id. at 1283 (emphasis added). . Id. at 1391. . Id. at 844. . Such a veto power was eventually provided in section 402(d)(2), 33 U.S.C. § 1342(d)(2). . 42 U.S.C. § 1857c — 5. . 421 U.S. at 75, 95 S.Ct. at 1479. . We also reject the argument made by Youngstown that differing language in §§ 301(b)(1)(A) and 301(b)(2)(A) indicates that the administration of the Act differs as between 1977 and 1983 limitations. Noting that § 301(b)(1)(A) requires the achievement of “effluent limitations for point sources,” whereas § 301(b)(2)(A) requires the achievement of “effluent limitations for categories and classes of point sources,” Youngstown appears to argue that the 1983 limitations can only be established on a category or class basis while conceding that they can be established on an individual basis for 1977. However, we see nothing in the legislative history indicating that the regulatory scheme was to be so radically different as between the 1977 and 1983 limitations. Furthermore, it makes little sense to have the limitations applied on a point source by point source basis in 1977, while permitting limitations on a category-wide basis six years later. We thus conclude that any ambiguity created by §§ 301(b)(1)(A) and 301(b)(2)(A) on this point was inadvertent and was a result of imprecise legislative drafting. . Substantially similar language is included in section 304(b)(2)(B), pertaining to guidelines for 1983 standards. . Leg.Hist. at 172. . Id. at 254-55. . Id. at 1468. . Id. at 172. . As the Eighth Circuit in CPC International stated, “[t]his preoccupation with the precision of the guidelines as a means of achieving uniformity makes no sense in a regime where the permit-issuing authorities are to look, not to the guidelines, but to regulations promulgated under § 301.” Where we disagree with the Eighth Circuit is its conclusion that the permit grantors were not also constrained by § 301 limitations. As explained below, we conclude that they are bound to follow both § 301 limitations and § 304 guidelines. . Leg.Hist. at 1468 (emphasis added). . Id. (emphasis added). . Id. at 169 (emphasis added). . Id. at 1468 (emphasis added). . While Congress used the term “base level,” henceforth in our discussion of limitations we will refer to a ceiling of effluent discharge which the polluter cannot exceed, since we believe that the latter term more clearly expresses Congress’ intent. . Those twelve subcategories are: by-product coke, beehive coke, sintering, blast furnace (iron), blast furnace (ferromanganese), basic oxygen furnace (semi-wet air pollution control methods), basic oxygen furnace (wet methods), open hearth furnace, electric arc furnace (semi-wet methods), electric arc furnace (wet methods), vacuum degassing, and continuous casting. . While it is true that the Final Development Document accompanying the regulations makes some references to “base levels,” it is clear that the Document used the term in a very different sense than the one in which we believe Congress used it. As we noted earlier (see notes 42 and 42a supra and accompanying text), we believe that Congress in referring to “base level” meant a “ceiling” on the permissible amount of effluent discharge. Page 257 of the Development Document (Appendix at 1521a), however, states that the Agency first determined the “base or minimum level of treatment . . . already in existence for practically all plants within the industry in any given subcategory,” and then “added on” to that base level to reach the levels required by the “BPCTCA” and “BATEA” standards. Thus, the “base level” referred to in the Final Development Document was in reference to the level of treatment “already in existence,” rather than to the maximum degree of effluent discharge the Administrator determines is permissible under the Act. We see nothing in the Development Document indicating a consideration of the type of “base level” or “ceiling” about which we are concerned. . Final Development Document at 107, Appendix at 1401a. . For example, after noting that the Administrator determined that the additional energy requirements for alternative I treatment technology for by-product coke in 1977 would be 0.22 kwh/kkg, petitioners claim: “Nowhere is it shown how this number was established, whether it is good, bad or indifferent.” Petitioners, however, have pointed to no evidence indicating that the Administrator’s figure is unrealistic. Furthermore, as noted previously, the Administrator estimated the cost of the additional energy requirement to be $2,175.00. From this, and from the Administrator’s later statement that the environmental benefits outweighed any impact on energy requirements, we believe we can infer, within the meaning of Bowman Transportation, supra, that the Administrator found the figure to represent a tolerable level. . CF&I estimates that at present its plant causes the loss of 4.65 million gallons of water per day and that, upon installation of the necessary anti-pollution devices, this amount would increase by an additional 7 million gallons per day. The Administrator, however, disputes these estimates. . Besides CF&I plant in Colorado, those plants are a United States Steel plant in California. Appendix at 1343a-1344a. . CF&I contends that the Administrator should have been aware of the water shortage problem because of the Federal Government’s funding and sponsorship of water resource projects throughout semi-arid regions of the country, such as the Fryingpan-Arkansas Project, and because the EPA was specifically advised of Colorado’s water shortage problem with respect to effluent guidelines for the beet-sugar industry. However, the fact that the Administrator perhaps should have been aware of the water scarcity problems in Colorado does not mean that it should have known that recycling systems required to meet effluent limitations for the steel industry would have had a potentially serious effect on the water supply. We also reject CF&I’s contention that the regulations are invalid because they conflict with state law requiring water conservation. To the extent that these federal regulations are valid and are in conflict with state law, they take precedence under the Supremacy Clause of the Constitution. Cf. Florida Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). . Leg.Hist. at 170 (emphasis added). . Id. (emphasis added). The ambiguity here is created by the evident inconsistency between the statements that “cost should be a factor” and that reasonableness should be determined “without regard to cost.” Nevertheless, it is clear that for “BATEA” standards, cost was to be less important than for the “BPCTCA” standards, and that for even the “BPCTCA” standards cost was not to be given primary importance. . Id. at 1282. . See note 3 supra and accompanying text. . Petitioners challenge the cost-benefit studies as being inadequate and conclusory. As we noted before, however, a cost-benefit analysis is not. required at all for any technology level other than the 1977 “BPCTCA” standards, and even there it is supposed to be only a “limited” analysis. See text accompanying footnote 50 supra. Also, Congress well recognized the impossibility of obtaining a mathematically accurate cost-benefit analysis in the area of pollution control. The portion of the Senate Report discussing § 302 of the Act, which requires a more specific cost benefit analysis for “water quality standards” than does § 304, states: “The Committee recognizes that no mathematical balance can be achieved in considering relative costs and benefits nor would any precise formula be desirable, but in each case the Administrator or the State will be able to determine whether there is any reasonable connection at all between the costs which a particular effluent limitation would impose and any benefits (including the attainment of natural water quality) which might be derived.” Leg.Hist. at 1466. This difficulty in quantifying such a balance has also been discussed in Note, The Federal Water Pollution Control Act Amendments of 1972: Ambiguity as a Control Device, 10 Harv.J.Legis. 565, 587-88 (1973). Cf. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 387 (1973). The necessarily subjective nature of such an analysis supports the view that the Administrator must have broad discretion in weighing the costs and benefits. . 39 Fed.Reg. 24118. . Their brief merely cites the conclusory and undocumented statement which they had made in a report to the agency during the rule-making proceedings. Appendix at 1098a. . Petitioners argue that the Administrator’s consideration of the costs for only phase I operations was contrary to the mandate in § 304(b)(1)(B) that he consider “total cost.” We note initially that there is no such requirement in § 304(b)(2)(B), pertaining to 1983 “BATEA” standards. More important, we note that Congress intended by the phrase “total cost” only to require consideration of both “internal” and “external” costs; there is no. indication that Congress intended by this phrase to preclude separate cost studies for separate regulations governing two or more broad types of operations within a particular industry. As Representative Jones stated: “The term ‘total cost of application of technology’ as used in section 304(b)(1)(B) is meant to include those internal, or plant costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation, and rural area economic development sustained by the community, area, or region.” Leg.Hist. at 231. As discussed later in this opinion, we believe that the Administrator gave sufficient consideration to these factors. . National Resources Defense Council, Inc. v. Train, 6 ERC 1033 (D.D.C.1973), rev’d in part, 166 U.S.App.D.C. 312, 510 F.2d 692 (1974). . We also do not see much merit to petitioners’ contention that the failure to promulgate phase II regulations deprives them of the ability to plan rationally in determining which plants cannot be operated economically and should be closed rather than retrofitted with pollution abatement equipment. Petitioners have presented no evidence to show that the design of treatment works for one phase would be dependent on the other. Furthermore, petitioners have been participating actively in the rule-making proceedings now under way for phase II regulations, and thus have a general idea as to what will be required of them. While petitioners do not yet know the precise numerical figures to be established in the limitations and guidelines, we believe they have sufficient knowledge to be able to make informed business decisions. . 39 Fed.Reg. 24116 (comment # 23); Appendix at 1692a. . While these developments occurred subsequent to the promulgation of the regulations in question, we believe that we should not close our eyes to such evidence where it has an important bearing on agency assumptions and predictions. See Amoco Oil Co. v. Environmental Protection Agency, 163 U.S.App.D.C. 162, 501 F.2d 722, 729 n.10 (1974). While this evidence was not in the nature of sworn testimony, as in Amoco Oil, it consisted of the companies’ own announcements as to their earnings and plans, and thus can be treated as equally reliable. Furthermore, the petitioners do not contest the accuracy of this evidence. . The Kearney Report also concluded that pollution control equipment could be financed through the use of tax-exempt bonds. Appendix at 290a-293a. See 26 U.S.C. § 103(c)(4)(E) & (F). . The validity of the water quality standards is not before us in this case. Such standards are more stringent than effluent limitations, since they are intended to maintain water quality where effluent limitations are insufficient. See § 302 of the Act, 33 U.S.C. § 1312. . 39 Fed.Reg. 24115, comment #11. . The Administrator’s response was that “the agency is currently developing amendments to its NPDES permit regulations (40 CFR Part 125) which will specify the situations in which the Regional Administrator may allow a credit for the pollutants present in the plant’s intake waters.” 39 Fed.Reg. 24115, comment #11 (emphasis added). . 39 Fed.Reg. 28926 (Aug. 12, 1974). . The Senate Report stated: “The Administrator will have the capability and the mandate to press technology and economics to achieve those levels of effluent reduction which he believes to be practicable in the first instance and attainable in the second. . . . It is acknowledged that in those industrial categories where present practices are uniformly inadequate, the Administrator may determine best practicable to require higher levels of control than any currently in place if he determines the technology to achieve those higher levels can be practicably applied.” Leg.Hist. at 1460, 1468. . See note 4 supra. . Leg.Hist. at 798. . Id. at 1476 (Senate Committee Report). . Leg.Hist. at 797. . Id. at 172. . “Transfer technology” refers to technology which has been developed in one process or industry but which the Administrator believes can be successfully “transferred” to other processes or industries which operate under similar conditions. . We thus reject as frivolous petitioners’ contention that “the entire study of the new source standards of performance comprises only five pages of the final development document prepared to support the Regulations,” since the study underlying the “BATEA” levels served also as the basis for the “BADCT” levels. . In part IV(c) of this opinion, we concluded that, while CF&I could not raise in this petition the Administrator’s failure to consider the evaporation problem, it could do so on remand in the context of the proceedings spelled out in part III of this opinion. Since we see no error in the establishment of the § 306 limitations which would require remand to reconsider those limitations in their totality, CF&I will be unable to raise the evaporation problem with respect to any new sources it may be planning to construct. . The “flow rate” refers to the amount of waste water discharged (in terms of gallons) for each ton of product (e. g., coke or steel) produced. Since the limitations are expressed in terms of pounds of pollutants per 1000 pounds of product and are derived from a multiplication of flow and concentration, tradeoffs can occur between flow and concentration provided the limitation is not exceeded. . This figure means one part fresh water added to each part of waste water. . 39 Fed.Reg. 24116 (comment #22). . Petitioners make the same contention, and the Administrator makes the same response, with respect to the new source standards. We believe the response is equally sufficient there. . See note 67 supra and accompanying text. . Leg.Hist. at 170. . Section 301(d), 33 U.S.C. § 1311(d). . Similarly, we see no evidence that the technology for achieving such a flow rate is “available” within the meaning of § 301(b)(2)(A), and thus we likewise remand for further consideration of the BATEA limitations for byproduct coke. . Final Development Document at 336 and 387 (Appendix at 1599a and 1650a). . Id. . Id. at 218 (Appendix at 1496a). . Appendix at 1114a. . 39 Fed.Reg. 24115 (comment # 10). . Final Development Document at 226, Appendix at 1501a. . Appendix at 1115a. . Fed.Reg. 24115 (comment # 10). Furthermore, his response still does not indicate whether a 50 (rather than a 60) gallon per ton flow rate was demonstrated. . Id. (comment # 13). . With respect to petitioners’ contention that the flow rates were established based on a sintering plant having a wet scrubber system only on the “dedusting” end, we have already indicated that plants having scrubbers on both ends would be entitled to a variance if they show that their inability to achieve the flow rate is attributable to their “fundamentally different” characteristics. See part VII(A) of this opinion, at text accompanying note 76 supra. . Our skepticism as to the Administrator’s belief that this technology has been demonstrated is based on the rather equivocal support for that alternative given in the Final Development Document itself, which stated that such treatment was “possible” (Appendix at 1467a). Furthermore, the Administrator’s reliance on transfer technology involving nitrification and denitrification processes (based on demonstrated success of nitrogen removal from municipal wastes) seems inconsistent with his recognition that a transfer of the biological denitrification process from municipal waste treatment to the open hearth and vacuum degassing subcategories was inappropriate. See 39 Fed.Reg. 24118 (comment # 7). . 39 Fed.Reg. 6495. . Plant L, Final Development Document at 203 (Appendix at 1486a). . For this reason, we also reject petitioners’ challenge to the “BADCT” limitations established for the blast furnace subcategory. . 39 Fed.Reg. 6495. . Final Development Document at 404, Appendix at 1667a. This limitation, however, is based on a flow rate of 50 gallons per ton and thus may not be valid if, on remand, the evidence shows that the plugging and scaling problems are of such magnitude that the viability of recycle systems cannot be termed “demonstrated.” . Final Development Document at 410, Appendix at 1673a. . Id. at 405, Appendix at 1668a. . See note 96 supra. . Final Development Document at 404, Appendix at 1667a. . Id. at 388, Appendix at 1651a. . Id. . Id. at 159-61, Appendix at 1452a-54a. . Id. at 160, Appendix at 1453a. . We also deny as moot the stay sought by petitioners’ pending appeal.

American Iron & Steel Institute v. Environmental Protection Agency

ADAMS, Circuit Judge (concurring): Although I subscribe completely to the majority’s decision to remand to the Environmental Protection Agency this administrative action, two concerns compel additional comment. The more troubling one is that the Court has been obliged to find the power of the Administrator to issue effluent limitations by a series of subtle inferences, rather than by reference to clear statutory language. Also disturbing is the manner in which the Administrator has exercised his statutory duty to consider the costs of pollution control technology in relation to the benefits of abating pollution. This aspect of the Administrator’s decision would seem to constitute another ground for remanding the Phase I iron and steel operation controls to the Administrator for further consideration. I. The Water Pollution Control Act of 1972 is an important environmental protection measure, one of several such critical laws enacted in recent years. It holds promise for the American people that within a reasonable time the lakes and rivers of this country will no longer be threatened by unpurified discharges of industrial and residential waste. The undertaking Congress proposed was technologically uncertain and likely to prove costly as new facilities would have to be installed and old practices would have to be abandoned in order to achieve the desirable objectives set forth in the law. Congress, nonetheless, viewed the problem of water pollution with a sense of urgency. It provided that effluent limitations for point sources compatible with the “best practicable control technology currently available” were to be achieved by J uly 1,1977 and that limitations consonant with the “best available technology economically achievable” were to be attained by July 1, 1988. The Act expresses the goal that the 1983 limitations provide for water quality suitable for the protection of fish and wildlife and for recreational use, as well, and that all discharge of pollutants into navigable waters be eliminated by 1985. The states were chiefly responsible for the administration of the prior Act. In contrast, the 1972 Act vested the authority to issue permits for the discharge of pollutants in the federal Environmental Protection Agency (EPA). States were empowered to impose more stringent regulations on dischargers, and to exercise an initial veto on applications for federal permits, but the responsibility for prescribing minimum standards was vested in the EPA. The EPA, however, was authorized by Congress to delegate its permit-granting authority to the states subject to conditions and safeguards, including the retention in the EPA of power to establish basic guidelines with which each state’s implementation plan was to comply. Each permit issued under a state plan was to be subject to EPA review and veto. And should a state plan become inconsistent with the national water pollution regulations, the EPA was given authority to resume control of the issuance of permits in that state. A critical issue common to this appeal and the CPC case is the delegation to the states of the authority to establish minimum standards for pollutant discharge. Two issues determine the outcome of this aspect of each decision: First, are the' effluent limitations described in section 301 of the Act to be imposed by a separate set of regulations with which state-issued permits for discharge must comply, or are the effluent limitations to be embodied instance by instance in the terms of each individual permit? Second, if the effluent limitations are separate regulations, is the federal government or the state to issue those regulations? The Eighth Circuit has interpreted the Act as imposing the effluent limitations as conditions in each permit issued by a state authority, albeit congruent with the federal guidelines. Judge Hunter, in his able analysis, demonstrates that effluent limitations are to be a separate set of regulations, distinct from the permits, and that these regulations are to issue from the EPA, not from the states. Regardless of the merits of the respective positions of the Eighth Circuit and this Court, both have had to arrive at their divergent interpretations of this fundamental aspect of the Act by inferences from ancillary provisions, and by deciphering the legislative intent from reading scraps and bits of a convoluted legislative history. The failure to provide a clear procedural structure on so basic a matter in the administration of the Act is disquieting. In one sense, the difficulty of interpretation imposed here is of little consequence; it is the work of the courts to explicate the laws, no matter how complex their structure. In this instance, however, statutory vagueness inflicts harm on the purposes of the Act and impels the courts to determine the allocation of authority between the national and state governments in the administration of this program. The conflict of interpretation between the Circuits does not initiate, but certainly perpetuates confusion in the administration of the legislation. Under these circumstances, neither the states nor the Administrator, nor the industries and municipalities which are to be regulated by the Act, may be confident which agency possesses the legal authority to promulgate effluent limitations. The result of such incertitude is delay in the implementation of the substantive provisions of the Act while the concerned parties engage in costly litigation to determine the legal powers of each enforcement agency. Such controversy postpones the achievement of the Act’s lofty objectives, and imposes a burden on the Courts of Appeals and the Supreme Court which they might have been spared by careful drafting. In addition, the difficulty in interpretation impinges on the powers of the coordinate branches of government within the federal system. Ours is a cooperative federalism in which the states and the national government share responsibilities for many programs. The definition of the roles of the state and national governments in areas where they share concurrent powers is essentially a matter for Congress, not for the courts. The failure to create clear boundaries for the authority of the states and the EPA has thrust upon the courts a responsibility to infer legislative intent from the disparate provisions of this complex legislation. The courts have not evaded their responsibility, but our disagreement with the Eighth Circuit underlines the extent to which the courts can write law, even in areas of Congressional authority, when there has been a failure to manifest legislative intent by clear statutory commands. II. The Administrator’s exercise of his discretion in connection with the cost analysis is the nub of my second concern. Congress has delegated to the Environmental Protection Agency a far-reaching power to strike a balance between water quality and the economy. In framing the guidelines for 1977 effluent limitations for existing point sources, the Administrator is directed by law to consider the costs of pollution control technology in relation to the benefits of pollution abatement. A reviewing court, asked by petitioners to declare an administrative action “arbitrary” or “an abuse of discretion,” is not to substitute its judgment for that of the agency. The Court must make a careful inquiry, however, to ascertain whether the decision of the agency was “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” By this standard, set forth in Citizens to Preserve Overton Park v. Volpe, the conclusions of the Administrator with respect to the cost of applying the best practicable control technology would appear to be arbitrary. The record does not adequately demonstrate that his decision on the 1977 guidelines for existing point sources was based on a consideration of all the relevant factors. Section 304(b)(1)(B) instructs the Administrator to consider “the total cost of application of [the best practicable control technology currently available] in relation to the effluent reduction benefits to be achieved from such application . ” when establishing guidelines for the 1977 effluent limitations. The elements of the total cost of applying the technology are not identified in the law itself. However, the legislative history of the Act may be used to support the notion that the term “total costs of application” encompasses not only the expense of erecting pollution control facilities but also the “external cost of potential unemployment, dislocation, and rural area development sustained by the community. . . . ” Having accounted for the total costs of applying the requisite technology, the Administrator must consider those costs in relation to the benefits to be achieved from the application of the technology. The Act does not mandate an exacting quantitative comparison in the form of a technical benefit/cost analysis. Nevertheless, from the remarks of Senator Muskie in support of the conference bill it appears that, with respect to the 1977 guidelines, the Act does require the Administrator to make an analysis sufficient to indicate that “the additional degree of effluent reduction is [not] wholly out of proportion to the costs of achieving such marginal level of reduction. . . . ” There is no doubt that Congress understood the difficulty and perhaps even the impossibility of reducing to monetary terms all, or even many, of the benefits from moderating pollution. The Administrator’s duty is to make the difficult comparison of the quantified and the unquantifiable. Nonetheless, by direefing the Administrator, when developing the guidelines for 1977, to consider the costs in relation to the benefits, even if only to the extent of determining that costs and benefits are not “wholly out of proportion,” Congress may reasonably be understood to have required that the Administrator survey both costs and benefits thoroughly, each in the terms best suited to understanding its significance. Costs and benefits could not be accurately compared, if the Administrator were to omit significant benefits, or significant costs, in evaluating pollution control technologies for 1977. Only on the basis of a comprehensive survey could the Administrator conscientiously determine that the costs and benefits of reducing pollution were in some way proportionate. Without the aid of such a survey, decisions might be rendered which distort the priorities intended by Congress. In this ease, the Administrator has considered the plant costs of applying the control technology; however, his calculations in this respect are incomplete. In particular, he has assumed that all treatment facilities will be constructed on “green field” sites. Consequently, he has neglected to estimate any average costs for site clearance and preparation. Sites are assumed to need no extensive preparation such as rock excavation, pilings, drainage, grading, or tree removal. In addition, “[l]and acquisition costs are not included in cost estimates.” Other costs not considered in the Administrator’s calculations include the costs of expanding utility support systems and interconnecting utility runs. Although the steel companies have presented only conclusory assertions regarding the significance of these excluded costs, the Administrator would seem to be obliged by the Act to consider these items-as part of “the total cost of technology.” He cannot leave utterly out of account what might reasonably be expected to be significant cost factors. If the Administrator is required to consider the external or secondary costs of applying the best practicable pollution control technology, it appears that he has also failed to satisfy the Act in this respect. Although a report commissioned by the Administrator noted the possibility of some plant closings, which would create unemployment and dislocate local economies, the Administrator does not set forth the weight he attached to these considerations. Nor does he find the possibility of plant closings too remote to be considered. If some closings are reasonably foreseeable, the report cannot be said to have presented adequate estimates of the total cost of such eventualities. Similarly, the record does not reveal that the Administrator has discounted the necessity for a choice between expanded production capacity and the application of pollution control technology. If such a choice must be made, the Administrator should examine the possibility of any substantial economic impact associated with it. To the extent that Congress intended “total costs” to include secondary costs, the Administrator, it seems to me, should give explicit consideration to whether such costs, if they are significant, are likely to be passed on to other industries and ultimately to consumers. Where costs are to be evaluated “in relation to” the benefits of reducing pollution, as in the case of the 1977 guidelines, the Administrator should survey the extent of the benefits as well as the costs that the pollution control technology may be expected to provide. The Final Development Document, however, describes only the types of harm that pollution control technology will help to abate. It does not account for the extent of the injury to be alleviated by the control technology. Consequently, it cannot be ascertained from the record whether the benefits to be attained are substantial. The Administrator has concluded that “the benefits of reducing the pollutants discharged justify the associated costs .” of applying pollution control technology to Phase I iron and steel op-©rations. However, the failure of the Administrator to account fully for the costs of the control technology and to indicate in any way the extent of the benefits to be derived from reducing pollution, would seem to preclude meaningful comparison of costs and benefits. Any conclusions drawn from inadequate data would be without foundation. In view of these omissions, the Administrator’s determination cannot be said to be based on a consideration of the relevant factors. Accordingly, it would not appear to meet the test of Overton Park. It is quite conceivable that if all the facts were set forth, the Administrator’s determination would not be a “clear error of judgment.” But it is not the function of the appellate courts to “supply a reasoned basis for the agency’s action.” Although courts are obliged to uphold an Administrator’s position when the path to his decision is reasonably discernible, the proceeding here presents this Court with an unblazed trail. It is no small matter to which the Administrator is to direct his attention. A decision to protect the environment necessarily imposes heavy costs on the accustomed ways of production, employment, and consumption in this country. In passing the Water Pollution Control Act of 1972, Congress attempted to balance the improvement in the quality of our water with the costs of that worthy endeavor. Despite the ambitious goals expressed in section 101 of the Act, Congress has ordained a measured national effort at the first stage of enforcement, from 1977 to 1983, requiring pollution abatement at existing point sources to be bounded by some proportionality to its cost. The guidelines and effluent limitations to be established by the Administrator have the potential to affect management’s investment decisions and, thereby, the employment prospects of thousands of citizens and the economic future of many communities. When an administrator’s action has such ramifications, he would appear to have an obligation to move cautiously, taking care that his judgments at each important step of the way are founded on sound analysis and detailed study. It does not appear that the Administrator has acted with care sufficient to satisfy his obligations under section 304(b)(1)(B). For that reason I conclude that the inadequate consideration of the element of cost in setting the guidelines for best practicable control technology is an additional ground for remanding this action to the Administrator. . § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) (Supp. Ill 1973). . Id. (b)(2)(A). . § 101(a), 33 U.S.C. § 1251(a) (Supp. Ill 1973). . 33 U.S.C. 1151 et seq. (1970), as amended 33 U.S.C. § 1251 et seq. (Supp. Ill 1973). . § 402(a), 33 U.S.C. § 1342(a) (Supp. Ill 1973). . § 510, 33 U.S.C. § 1370 (Supp. Ill 1973). . § 401(a)(1), 33 U.S.C. § 1341(a)(1) (Supp. Ill 1973). . § 402(c)(2), 33 U.S.C. § 1342(c)(2) (Supp. Ill 1973). . Id. (b), (c). . Id. (d). . Id. (c)(3). . CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975). . See Franklin Nat’l Bank v. New York, 347 U.S. 373, 378-79, 74 S.Ct. 550, 98 L.Ed. 767 (1954); Palmer v. Massachusetts, 308 U.S. 79, 84, 60 S.Ct. 34, 84 L.Ed. 93 (1939). Cf. Douglas v. City of Jeannette, 319 U.S. 157, 162-63, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). . Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971); Duquesne Light Co. v. EPA, 522 F.2d 1186, 1192 (3d Cir. 1975). . 33 U.S.C. § 1314(b)(1)(B) (Supp. Ill 1973). We note that the specific mandate to consider costs in relation to benefits is limited to the 1977 existing point source standards and does not appear to apply to the 1983 standards under subsection (b)(2)(B) or to new sources under section 306(b)(1)(B). In those sections the Administrator is, however, admonished to take costs “into account” or “into consideration.” The admonition may be taken to imply some kind of comparison of costs and benefits, although the proportionality between costs and benefits, indicated by section 304(b)(1)(B), would not seem to be required for these other sections. . See Library of Congress, Environmental Policy Division, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. 231 (Comm. Print 1973). (Remarks of Rep. Jones). . See id. 170 (Remarks of Sen. Muskie). Cf. id. 1466 (Senate Report discussing the analysis of costs and benefits required by § 302). . See id. 1466. . Senator Muskie’s references to the “additional degree of effluent reduction” and to “such marginal level of reduction” seem to indicate that the comparison required by Congress is not between total benefits and total costs, but between the costs and benefits attributable to each significant step in pollution abatement. Presumably an incremental analysis would avoid the risk of hidden imbalances between cost and benefit. Such imbalances could be of serious magnitude where, as here, major industries are the subjects of regulation. An incremental analysis would, of course, be more complex than a simple comparison of total costs and benefits. To the extent that estimates of total costs and benefits are aggregates of the costs and benefits of each step in the pollution abatement process, however, the basic data for incremental analysis should be readily available. . The costs in question will vary according to the conditions of each site, and the Administrator cannot be expected to produce exact costs for each site. He may, however, resort to estimated average figures. . The Administrator appears to adopt the report and its supplement by his statement at 39 Fed.Reg. 24118 (1974) that “[t]he total cost of implementing the effluent limitations guidelines includes . . . the indirect economic costs identified in the supplementary report entitled “Economic Analysis of the Proposed Effluent Guidelines for the Integrated Iron and Steel Industry” (February 1974). The Administrator does not appear to engage in any more detailed discussion of indirect costs in the Final Development Document. . As justification for a determination that there is no need for an investment choice between expansion of capacity and pollution control, the Administrator submits newspaper articles on the financial condition of the steel industry that have appeared subsequent to the promulgation of the regulations. The Court accepts those materials, relying on the reasoning of Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722, 729 n.10 (1974). In the circumstances of this case, where the regulations are to be remanded to the Administrator for reconsideration in many respects, it appears to be unnecessary and perhaps inappropriate for the Court to take notice in this fashion of subsequently developed information. As a general principle, moreover, it is disturbing that courts should consider subsequently developed information to determine whether an administrative decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To entertain such information may encourage the use of the courts as mere extensions of a continuous administrative process. It may also encourage some administrators to issue decisions that may well be arbitrary at the time of promulgation, hoping like Micawber that “something will turn up.” Neither of these consequences would appear to enhance the efficiency of the courts or the confidence of citizens in the fairness of the administrative process. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947); SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943). . 39 Fed.Reg. 24118 (1974). . 401 U.S. at 416, 91 S.Ct. 814. . See Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). . See id. 286, 95 S.Ct. 438.

Colorado Public Interest Research Group, Inc. v. Train

McWILLIAMS, Circuit Judge. This is a citizen suit brought by plaintiffs against the United States Environmental Protection Agency, and Russell Train as its Administrator, wherein the plaintiffs, under the provisions of the Federal Water Pollution Control Act, as amended, sought to compel the Administrator to perform what was alleged to be a nondiscretionary duty to control discharges of radioactive materials into navigable waters. Both plaintiffs and defendants moved for summary judgment on the ground that there were no genuine issues of fact and both agreed that the sole issue was a pure question of law as to the meaning of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (Supp.1973). The trial court granted defendants’ motion for summary judgment and entered summary judgment for defendants. Plaintiffs now appeal the judgment thus entered. We reverse. We are here concerned with the amendments made in 1972 to the Federal Water Pollution Control Act, and the regulations issued pursuant thereto. The amendments thus made to the Act will hereinafter be referred to as the 1972 Amendments. This is a statutory construction case, and accordingly we shall now refer to the particular statutes and administrative regulations with which we are here concerned. 33 U.S.C. § 1311(a) (Supp.1973) provides, in effect, that the discharge of any pollutant by any person into navigable waters shall be unlawful except in compliance with the various sections of the 1972 Amendments. Under 33 U.S.C. § 1342(a)(1) (Supp.1973) the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, upon the meeting of such conditions as the Administrator determines to be necessary to carry out the several provisions in the Act, as amended. 33 U.S.C. § 1362(6) (Supp.1973) defines “pollutants” and reads as follows: “The term ‘pollutant’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) ‘sewage from vessels’ within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.” (Emphasis added). The Administrator, pursuant to his obligations under 33 U.S.C. § 1342 (Supp.1973), issued regulations which became effective July 1, 1973, regarding permits to discharge pollutants. 40 C. F.R. § 125.1 (x) (1973) reads in pertinent part as follows: “§ 125.1 Definitions “(x) The term ‘pollutant’ means * * * radioactive materials * * * discharged into water. [Fifteen other listed pollutants omitted.] * * *. “COMMENT. — The legislative history of the [Federal Water Pollution Control] Act ‘Amendments of 1972’ reflects that the term ‘radioactive materials’ as included within the definition of ‘pollutant’ in section 502 of the Act covers only radioactive materials which are not encompassed in the definition of source, by-product, or special nuclear materials as defined by the Atomic Energy Act of 1954, as amended, and regulated pursuant to the latter Act. Examples of radioactive materials not covered by the Atomic Energy Act and, therefore, included within the term ‘pollutant’ are radium and accelerator produced isotopes. (H.R.Rep. 92-911, 92d Cong.2d Sess., 131, March 11, 1972; 117 Cong.Rec. 17401, daily ed., November 2, 1971; 118 Cong.Rec. 9115, daily ed., October 4, 1972.)” The foregoing COMMENT is at the heart of the present dispute and perhaps deserves a rereading. Another section of the 1972 Amendments, 33 U.S.C. § 1371(a) (Supp. 1973), relied on by the defendants, reads in pertinent part as follows: “This chapter shall not be construed as (1) limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter-, * * (Emphasis added). Although neither is a party to the present proceeding, the Atomic Energy Commission and the Public Service Company of Colorado are to a degree, at least, involved. The Atomic Energy Commission owns the Rocky Flats Plant located between Golden and Boulder, Colorado, which plant until recently has been operated for the Commission by the Dow Chemical Company. The Public Service Company of Colorado under license from the Atomic Energy Commission owns and maintains the Fort St. Vrain Nuclear Generating Station located at Platteville, Colorado. Radioactive materials, including “by-products materials,” “source material,” and “special nuclear material” are, or will be, discharged into navigable waters within the state of Colorado by operation of the Rocky Flats Plant and the Fort St. Vrain Nuclear Generating Station. We are advised that both nuclear facilities have applied to the EPA Administrator for a permit to authorize the discharge of liquid effluents into Colorado waters and that in each instance the Administrator, in line with the COMMENT set forth above, has refused to regulate the discharge of radioactive materials from these facilities. It was in this general setting that the plaintiffs brought their citizen suit as provided in 33 U.S.C. § 1365(a)(2) (Supp.1973) against the Administrator seeking to compel him to exercise his regulatory duties under the 1972 Amendments as concerns the discharge of radioactive materials into navigable waters. It is the plaintiffs’ basic position that the statute means what it says, and that under the definition of “pollutant,” as set forth in 33 U.S.C. § 1362(6) (Supp.1973), it is the duty of the Administrator to regulate the discharge of all radioactive materials into navigable waters. The defendants’ basic position is as set forth above in the COMMENT to 40 C.F.R. § 125.1 (x) (1973), namely, that those radioactive materials which are “by-product materials,” “source material,” and “special nuclear material” are not encompassed in the 1972 Amendments and are hence subject to only such regulation as is provided under the Atomic Energy Act of 1954. The trial court adopted the view of the Administrator and it was on this basis that summary judgment was entered for the defendants. We disagree with this disposition of the matter. Brief reference to the general law relating to statutory construction-may be helpful. It is a basic rule of statutory construction that statutes are to be construed in a manner so as to effectuate the intent of the enacting body, and that in construing a statute the court should first look to the language of the statute itself. If the language is clear and the purpose appears with reasonable certainty, there is no need to resort to other rules of construction to ascertain its meaning. United States v. Ray, 488 F.2d 15 (10th Cir. 1973). An unambiguous statute must be given effect according to its plain and obvious meaning. United States v. Western Pacific Railroad Company, 385 F.2d 161 (10th Cir. 1967). Another cardinal rule of statutory construction is that where the legislature has acted to except certain categories from the operation of a particular law, it is to be presumed that the legislature in its exceptions intended to go only as far as it did, and that additional exceptions are not warranted. In other words, where there be express exceptions to a statute, additional exceptions by implication are not favored. In re Monks Club, Inc., 64 Wash.2d 845, 394 P.2d 804 (1964), and Knapczyk v. Ribicoff, 201 F.Supp. 283 (N.D.Ill.1962). See also 2A Sands, Statutes and Statutory Construction, § 47.11 (4th ed. 1973), where it is stated that when there is an express exception to a statute, no other exceptions will be implied. See also § 47.07 in that same treatise which states, in part, that a statute which declares what a term “means,” is to be given a strict interpretation and is not subject to expansion. Here, the statute declares not only what the term pollutant “means,” but what it “does not mean.” And a final rule of construction which has applicability to the present controversy is that the legislative history of a statute cannot be used to change the meaning of a clear and unambiguous statute. United States v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961), and Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207 (1949). Or, as was well stated in Gemsco, Inc. v. Walling, 324 U.S. 244, at 260, 65 S.Ct. 605, at 615, 89 L.Ed. 921 (1945), “the plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” See also United States v. Zions Savings & Loan Association, 313 F.2d 331 (10th Cir. 1963), and Haskell v. United States, 241 F.2d 790 (10th Cir. 1957). Keeping these general rules in mind let us look at the various statutory provisions with which we are here concerned. It was the expressed general intent of Congress in the 1972 Amendments to enact a comprehensive program looking towards the eventual elimination of all pollution of the Nation’s waterways so as to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 (Supp.1973). And the term “pollution” was defined as meaning “the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water.” 33 U.S.C. § 1362(19) (Supp.1973). The EPA Administrator was generally charged with carrying out the intent behind the 1972 Amendments, and was specifically charged with the administration and enforcement of the several provisions of the statute. In essence the sections referred to at the outset of this opinion prohibit the discharge of pollutants into navigable waters unless a permit to do so be granted by the EPA Administrator, and the EPA Administrator in considering a request to thus discharge pollutants is subject to the various requirements and limitations provided for in the Act and amendments thereto. The statute then defines the term “pollutant,” and states that among other things the term “pollutant means * * * radioactive materials * * The statute does not say “some” radioactive materials, or radioactive materials “except for,” just “radioactive materials.” So, it would seem to us that if we give the words thus used in the statute their plain and obvious meaning, the EPA Administrator is charged with the duty of regulating the discharge of radioactive materials into navigable waters. No exceptions having been set forth in the statute as concerns radioactive materials, it would follow that the term “radioactive materials” means all radioactive materials, and we so hold. We are fortified in our conclusion in this regard by the fact that the statute defining “pollutants” does contain two exceptions, neither of which modifies the term “radioactive materials.” Under the rule of construction referred to above, where a statute contains express exceptions, the courts should be exceedingly slow in implying unexpressed exceptions, lest the courts thereby thwart the legislative intent. In our view, then, the statute is plain and unambiguous and should be given its obvious meaning. Such being the case, under the authorities above cited, we need not here concern ourselves with the legislative history of the 1972 Amendments. In this regard we would note parenthetically that in our view the legislative history of the 1972 Amendments is conflicting and inconclusive. Be that as it may, in the case before us there is no need to address ourselves to the ofttimes difficult task of ascertaining legislative intent through legislative history. Here, the legislative intent is clearly manifested in the language of the statute itself, and we need not resort to legislative history. United States v. Oregon, supra, and Ex Parte Collette, supra. As indicated, the main thrust of the defendants’ argument in this court is that if there is not in fact an ambiguity in the 1972 Amendments, at least the 1972 Amendments are possessed of an “unfinished character” which requires it to be juxtaposed with the Atomic Energy Act of 1954. The defendants urge that if the 1972 Amendments be so considered, then “by-products materials,” “source material,” and “special nuclear material” are under the Atomic Energy Act of 1954 specifically subjected to the control of the Atomic Energy Commission, which control includes the exclusive power to regulate the discharge of such radioactive materials; and that the Atomic Energy Commission has been, and is, thus regulating the discharge of such radioactive materials. Thus, according to the defendants, the Administrator under the 1972 Amendments only regulates the discharge of “other radioactive materials, such as radium and accelerator produced isotopes. All of which is of course in line with the COMMENT of the EPA in 40 C.F.R. 125.1 (x) (1973). Suffice it to say that this line of argument does not square with our reading of the 1972 Amendments. In this regard we are of course mindful of the rule that the construction given a statute by the administrative officer charged with carrying out its provisions is to be given weight. Board of Dir. & & O., Forbes Fed. Cr. U. v. National Cr. U. Adm., 477 F.2d 777 (10th Cir. 1973). However, such should not be permitted to overrule the express language of a statute, else the administrative officer will himself be thwarting the will of Congress. Or, as was said in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), “administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction." In support of its general line of reasoning the defendants cite that section of the statute which states that the 1972 Amendments are not to be construed as limiting the functions of any officer or agency acting under any other law or regulation “not inconsistent with this chapter.” 33 U.S.C. § 1371(a) (Supp. 1973). Our answer to that is that the 1972 Amendments are inconsistent, in the particulars indicated, with the Atomic Energy Act of 1954. We are advised that this is a ease of first impression. However, a case which addressed itself to a somewhat similar problem is Scenic Hudson Preservation Conference v. Callaway, 370 F.Supp. 162 (S.D.N.Y.1973), aff’d 499 F.2d 127 (2nd Cir. 1974). The 1972 Amendments provide that a permit to discharge dredged or fill material is to be obtained from the Secretary of the Army, acting through the Chief of Engineers, rather than the Administrator. 33 U.S.C. § 1344 (Supp.1973). However, Consolidated Edison, which was in the process of trying to build a hydroelectric generating plant, contended that since it was under the general jurisdiction of the Federal Power Commission, it was not required to get a permit from the Army Corps of Engineers. In rejecting such contention, that court stated as follows: “ * * * Con Ed would infer an exception from the Amendments for hydroelectric plants on the theory that Congress could not have intended to interfere with the jurisdiction of the FPC in view of the long settled policy, discussed above, of allowing that agency unique control over the production of hydroelectric power. The argument is persuasive at first blush, but even more plausible is plaintiffs’ contention that Congress would not design an Act which on its face is all-inclusive, but for specifically enumerated exceptions, and yet intend to establish an unmentioned exception of the scale suggested here. Without any indication that Con Ed’s reading of the Congressional will is accurate, the carving out of so major an exception would be improper. If this was Congress’ intention and the omission is mere oversight, the remedy rests in Congress’ hands, and Congress has shown, by its recent amendments to the Alaska pipeline legislation, that it will not hesitate to remove an obstacle to energy production when it believes a change of requirements is necessary in the public interest.” We generally concur with the reasoning of this Scenic Hudson case. We are advised in the instant case that “by-product material,” “source material,” and “special nuclear materials” constitute virtually all of the radioactive materials that are of significant concern to water quality, and if such materials are excepted from the 1972 Amendments, then the exception is devouring the general policy of the statute. Edward B. Marks Music Corp. v. Colorado Mag., Inc., 497 F.2d 285 (10th Cir. 1974). In any event, if in the 1972 Amendments Congress intended to except “by-product materials,” “source material,” and “special nuclear material” when it used the unmodified term “radioactive material,” then the omission should be corrected by Congress, and not the courts. A case mentioned by the trial court in its memorandum opinion and cited here by the defendants is Northern States Power Company v. State of Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). We do not deem that case to be particularly helpful in our resolution of the present case. That case stands for the proposition that Congress in enacting the Atomic Energy Act of 1954 preempted the field to the exclusion of the several states as concerns the regulation of radioactive waste releases from nuclear power plants. Assuming the correctness of this proposition, such does not mean that Congress is thereafter foreclosed from later deciding, as we believe it did, to vest the Environmental Protection Agency with the duty of regulating the discharge of all radioactive materials into navigable waters. In sum, then, the 1972 Amendments charge the EPA Administrator with the duty of regulating the discharge of all radioactive materials into the Nation’s waters, and the trial court erred in granting the defendants’ motion for summary judgment. The trial court denied plaintiffs’ request for reasonable attorney fees as provided in 33 U.S.C. § 1365(d) (Supp. 1973). Plaintiffs appeal this ruling and contend that such constituted an abuse of discretion on the part of the trial court. In view of our disposition of the appeal, we need not here address ourselves to the merit of that particular matter. Judgment reversed and cause remanded for further proceedings consonant with the views herein expressed. . See Colorado Public Interest Group, Inc. v. Train, 373 F.Supp. 991 (D.C.Colo.1974).

United States v. Kennebec Log Driving Co.

COFFIN, Chief Judge. Defendant Kennebec Log Driving Company' is in the business of driving pulp logs down the Kennebec River to paper mills downstream. Defendants Scott Paper Company and Hudson Pulp and Paper Corporation have in the past engaged Kennebec Log Driving Company to perform this service for them, although at the present time only Scott Paper Company continues to do so. The United States claims that this activity violates two provisions of the Rivers and Harbors Act of 1899 in that the floating of masses of logs and the erection and maintenance of booms to guide and collect these logs constitutes obstruction to navigation on a navigable water of the United States without a permit in violation of section 10 of the Act (33 U.S.C. § 403), and that the sinking of some waterlogged timber and the sloughing off of significant quantities of bark from the floating logs constitutes deposit of refuse in a navigable water of the United States without a permit in contravention of section 13 of the Act (33 U.S.C. § 407). The government sought an injunction against further log driving and a court order requiring affirmative remedial action including the removal of all sunken logs from the Kennebec and the dismantling of all logging booms on the river. On cross motions for summary judgment the court below, 356 F.Supp. 344 (D.Me.1973), found that the Act of May 9, 1900 (33 U.S.C. § 410) created an exception from the provisions of the Rivers and Harbors Act of 1899 for log driving on rivers where log driving is the principal form of navigation, and, since it was uncontested that the Kennebec falls into that category of river, that the activities of defendants are legal despite the lack of any permits. I This case requires us, in the eighth decade of the twentieth century, to scrutinize the legislative history of two statutes passed at the turn of the century, as well as the wording of the statutes themselves, to see how they apply to a lawsuit impelled by contemporary concern over the quality of our environment. The sole issue presented to us involves interpretation of the Act of May 9, 1900 and of certain provisions of the Rivers and Harbors Act of 1899. Our concern is with the scope of the Act of 1900 and the extent to which it overrode the earlier Act as applied to log driving on rivers like the Kennebec. Log driving has been carried out on the upper Kennebec River by the defendant log driving company since 1835 and the techniques involved have remained essentially unchanged down to the present. Pulpwood logs are placed in the river and allowed to float downstream on the force of the current. Booms, usually consisting of strings of logs fastened together with chains, are placed so as to guide the logs away from inlets and obstacles. Where there is insufficient current to carry the logs downstream they are collected in large booms and gathered together and formed into rafts which are towed by small boats to a point where the logs can again be released into the current. Where dams block the river the logs are sluiced over them. At the mill site the logs are guided toward the shore and removed from the river. In the course of a drive a number of logs inevitably become waterlogged and sink to the bottom. Another acknowledged side effect of the practice of log driving is the deposit into the river of quantities of bark which peel off the floating logs. No permits have ever been sought by defendants from any federal government agency for their log driving activities. Recent widespread concern over the quality of the environment has resulted in vigorous remedial action in a number of areas, including the enactment of comprehensive air and water quality legislation by the Congress. Although the 1970 Federal Water Pollution Control Act and the 1972 amendments do not deal directly with the ecological impact of log driving upon the rivers used for such purposes, concern over this problem in the state of Maine has led to action designed to curtail and eventually eliminate logging in the state’s rivers. In 1971 the Great Northern Paper Company forecast the end of its log drives on the West Branch of the Penobscot River by 1972 at the latest, and Scott Paper Company announced publicly that it would terminate log driving on the Kennebec, the very activity in issue here, no later than October 1, 1976. And in May of 1971 the Maine legislature enacted a statutory prohibition against all log driving on Maine rivers effective October 1, 1976, 38 M.R.S.A. § 418. In order to discuss the proper application of the Acts of 1899 and 1900 to the activity in issue a brief description of these Acts, and their legislative history, is appropriate. Section 10 of the Act of 1899 bans the creation of obstructions to the navigable capacity of navigable waters of the United States, including the “building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any navigable river” unless permission is obtained beforehand from the Secretary of the Army (on recommendation of the Chief of Engineers). Section 13 of the Rivers and Harbors Act of 1899 is the now famous Refuse Act and bans the deposit of refuse matter into navigable waters of the United States, either from floating craft or from the shore, or the deposit of material on the banks of any navigable water which might be washed into the water and obstruct navigation, unless prior permission is obtained from the Secretary of the Army. Section 15 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 409) bans certain specific activities when conducted in such a way as to obstruct navigation. Relevant to our discussion is the prohibition contained in this section on the floating of “loose timber and logs” and “sack rafts of timber and logs” on streams or channels actually navigated by steamboats whenever it might “obstruct, impede, or endanger navigation”. Section 15 contains no provision for permits; its proscriptions, unlike those of sections 10 and 13, are absolute. The legislative history of the Rivers and Harbors Act in 1899 in general, and of sections 10 and 13 of that Act in particular, has been explored in some depth by the Supreme Court in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and, most recently, in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). It is clear that the Act was considered by Congress to be not much more than a compilation of various preexisting enactments. An 1897 report of the Chief of Army Engineers, submitted to Congress by the Secretary of War, had set out the text of all federal laws concerning the protection of navigable waters and had recommended a new statute which would assemble the previously scattered legislation on the subject and would clarify some of the language. The understanding of the Congress as to this proposed new law was that in relation to prior law “There are not ten words changed in the entire thirteen sections”. As passed the Act of 1899 was said to contain “no essential changes in the existing law.” But despite the congressional impression that very little that was new was contained in the Rivers and Harbors Act of 1899 the language in section 15 concerning log driving apparently originated in the Chief of Engineer’s report. Unlike sections 10 and 13, this part of section 15 appears to have no statutory antecedents. Since the Act of 1899 engendered relatively little legislative comment or debate, and what there is does not mention log driving, the complete ban on this activity written into federal law in section 15 comes down to us without the usual clarifying light of legislative history. The sweep of the prohibition on log driving contained in section 15 very quickly led to congressional reappraisal. The legislative history leading up to the adoption the next year of what is now 33 U.S.C. § 410 indicates that the concern which led to this amendment of section 15 related to the conflict between the needs of those who used the rivers to navigate steamboats and those who used the same rivers to float logs downstream to mill sites. The language of section 15 resulted in a great over-weighting of the balance in favor of the steamboat, which imbalance the later Act was meant to rectify. A bill to remove the log driving prohibition from section 15 was introduced in the first days of the very next session of Congress and referred to the House Committee on Rivers and Harbors. The committee reported back a bill which would have exempted the Mississippi River above the St. Paul boom, and certain of its tributaries, from the reach of section 15, with provision for the regulation of log driving on those waterways by the Secretary of War. The report submitted to the House by the committee discussed the methodology of log driving on the rivers in question, and also discussed the extent of steamboat navigation. It found that “the inevitable result of carrying on this logging business in the way it is carried on is to obstruct, impede, and endanger such steamboat navigation at certain seasons of the year”, but concluded that section 15 was too harsh a remedy. After House passage of this bill the Senate Committee on Commerce reported an amended bill which would have extended to any river, rather than just the upper Mississippi, the provision for regulation of log driving of the House bill, “whenever in [the Secretary of War’s] judgment such regulations are necessary to equitably adjust and govern the conflicting interests of logging and other forms of navigation.” The bill also provided that whenever such regulations had been issued the river affected would then be exempt from section 15. The Conference Committee then devised the compromise measure which became the Act of May 9, 1900. It extended an exemption to section 15’s ban on log driving to those rivers on which log driving is the principal form of navigation and also provided that the Secretary of War (now the Secretary of the Army) was empowered to issue regulations “so framed as to equitably adjust conflicting interests between the different methods or forms of navigation” on such rivers. II The parties disagree as to the significance to be accorded to the fact that defendants are now barred by Maine law from continuing the activity at issue here after October 1, 1976. Defendants contend that the 1976 deadline makes this case, while obviously not technically moot, realistically unnecessary and undeserving of expenditure of the parties’ and the court’s energies. There are a number of reasons why we are unpersuaded by such arguments. First, the cessation of further log driving only goes to one aspect of the case, the propriety of a court order enjoining the activity, and does not affect the question of whether any remedial relief should be granted. Second, it is always possible that the present state deadline might be extended or eliminated. Third, three years is a fairly long time, long enough for the deposit on the bottom of the Kennebec of a not insubstantial number of logs, as well as loose bark. Most important, this suit, although belated, charges a violation of federal laws designed to protect and conserve our rivers, described by the Supreme Court (quoting Mr. Justice Holmes) as “more than an amenity ... a treasure.” Resolution of the issue presented in this case, with its possibility of recurrence wherever log driving is still carried on, presents us with what we consider to be an important question, and one which it is our duty to resolve. It is clear that the upper Kennebec River, where the defendants engage in log driving, is one on which the principal form of navigation is log driving and thus is within the purview of the Act of May 9, 1900 (33 U.S.C. § 410). The government argues, however, that any exemptions from the provisions of the Rivers and Harbors Act of 1899 contained in the later Act are conditioned upon prior promulgation by the Secretary of the Army of regulations' adjusting navigational conflicts. We cannot accept that analysis. The structure of the Act is such as to make the government’s interpretation improbable. It begins with a flat and unconditional exemption from the prohibition contained in section 15 as to log driving. It then provides that such exempted activity shall be subject to regulations prescribed by the Secretary of the Army and states that the Secretary is “authorized and directed” to prescribe rules and regulations, so framed as to adjust conflicts between modes of navigation. Logically, this format is consistent only with the view that the promulgation of regulations is a condition subsequent, not a condition precedent, to the exemption. We conclude that the duty of the Secretary of the Army, under the Act of May 9, 1900, to issue rules and regulations is not a condition precedent to the exemption contained in the Act to the ban on log driving contained in section 15 of the Rivers and Harbors Act of 1899. We now come to the heart of the issue. The district court, in a thoughtful and well documented opinion, concluded that the Act of May 9, 1900 not only exempted log driving on rivers like the Kennebec from the flat prohibition of section 15 of the Rivers and Harbors Act of 1899, but from sections 10 and 13 as well. It thought such a result required because otherwise one would have to “attribute to Congress an intent to legalize log driving and at the same time to prohibit its unavoidable side effects.” While we agree with the district court, for reasons set forth below, that the exemption to section 15 of the 1899 Act in the Act of 1900 necessarily extends as well to section 10, we do not agree that it also extends to the pollution control aspects of section 13. First of all, there is no logical dilemma in finding log driving on rivers like the Kennebec exempt from section 15 but not exempt from section 13. Section 13 does not operate as a complete prohibition on any activity. Discharge of refuse is illegal only if no permit is obtained beforehand. There is a vast array of human activity, particularly commercial activity, which requires prior governmental permission. But one does not in common sense terms think of such activity as prohibited. Rather, it is thought that it is limited or controlled. The very sweep of section 13 argues against the view that Congress could have meant it as a stark ban on all behavior encompassed within its broad terms. Instead, it was envisaged as a means of regulating and bringing under scrutiny actions which might threaten the well-being of the nation’s waterways. In contrast, section 15 is absolute. There is no way to escape its proscription other than to entirely cease the illegal conduct. Congress, in retaining the applicability of section 13 to log driving, did not legalize log driving and at the same time prohibit its unavoidable side effects and so produce a contradictory result. It merely quite logically exempted it from the absolute ban of section 15 while retaining the much more limited restriction produced by section 13. Such a reading of the scope of the Act of 1900 produces a consistent and reasonable legislative scheme. Furthermore, Congress did not say in the Act of May 9, 1900, as it very easily could have, that log driving on the particular rivers was to be exempt from all provisions of the prior Act. In terms the exemption extends only to section 15. The legislative history demonstrates that the concern of Congress in enacting the Act of 1900 was the navigational conflict between steamboat traffic and log driving, which conflict section 15 of the 1899 Act had resolved entirely in favor of the steamboat. It was in the context of the lifting of the complete ban of section 15 that statements were made to the effect that log driving was being legalized. However, there is not a word in the legislative history, or in the 1900 Act, concerning the sinking of waterlogged timber, the sloughing of bark, or the pollution caused by log driving. After exhaustive research into the history and purposes of the Rivers and Harbors Act of 1899 the Supreme Court has concluded that section 13 of that Act was intended by the Congress to prevent pollution, as well as obstruction, of navigable waters. As found by the Court, “the ‘serious injury’ to our watercourses . sought to be remedied [by the Rivers and Harbors Act] was caused in part by obstacles that impeded navigation and in part by pollution”, and that the term “refuse” as used in section 13 “includes all foreign substances and pollutants . . . United States v. Standard Oil Co., 384 U.S. 224, 228-29, 230, 86 S.Ct. 1427, 1429, 16 L.Ed.2d 492 (1966), a finding strongly reaffirmed in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 671, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). See also Illinois v. City of Milwaukee, 406 U.S. 91, 101, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). The Court has also repeatedly admonished that the Refuse Act be dealt with by the courts “charitably”, an admonishment that would not be heeded by us were we to find an exception to the operation of section 13 by virtue of a later statute which does not even mention section 13, or pollution, and whose legislative history is barren of the least hint that the creation of such an exception was contemplated. But while the matter of pollution is not mentioned or dealt with in the Act of 1900, the use of booms in the navigation of floating logs was recognized by reference to booms in the House Report. Moreover, the use of booms is an integral part of the control of floating timber. Many of the regulations promulgated pursuant to the Act of May 9, 1900 recognize that the location and use of logging booms is often vital to any plan to minimize navigational conflicts. Under these circumstances, it is clear that the district court was correct in finding that in exempting logging from the navigational restrictions of section 15 of the Act of 1899 the Congress must necessarily have also meant to exempt logging booms from any restriction contained in any other sections. This same analysis includes other aspects of log driving which might have a navigational impact. The purposes served by section 10 (and one of the purposes served by section 18) and the purposes served by section 15 in this matter are essentially the same. Furthermore, these interests are in large part preserved by the provision in the Act of 1900 for promulgation of rules and regulations to adjust navigational conflict. The regulations which the Secretary of the Army is empowered to issue under the Act of 1900 are confined to the question of navigational conflicts, unlike the permits authorized under section 13 of the Rivers and Harbors Act of 1899 which are not so limited in terms. This is consistent with the view that Congress conceived of the Act of 1900 as resolving the navigational conflict between logging on waterways like the upper Kennebec River and other forms of water transport in favor of logging, but that it had no intent to exempt this activity from the pollution control features of section 13 of the 1899 Act. We therefore find that the Act of May 9, 1900 exempts log driving on the upper Kennebec (and its necessary incidents, including the use of logging booms) from the provisions of the Rivers and Harbors Act of 1899 concerned with obstruction to navigation, and conflicts with other modes of navigation, but that nothing in the Act or its legislative history exempts this activity from the restrictions on pollution of navigable waters found in the Refuse Act (33 U. S.C. § 407). III The district court found that section 13 is “facially applicable” to defendants’ activities and that “peeled bark and sunken logs on the river bottom are deposits of ‘refuse matter’ within the meaning of section 13”. We concur with these findings and remand for a determination of the question which the court below felt that it did not have to reach; whether there are certain deposits of material into navigable waters so intimately related to the actual conduct of navigation by water that despite the facial applicability of the statute it could not have been in the contemplation of Congress that it apply in such instances. If the district court finds a violation of section 13 of the Rivers and Harbors Act of 1899 it will then be faced with the question of appropriate relief. We have been advised by counsel that a permit program is now in effect. Should this not be so, this fact will of course be taken into account in framing any equitable decree affecting future log driving. Insofar as relief in the nature of removing the accumulated refuse of three quarters of a century is concerned, we recognize that the burden of removing all of the logs which may have sunk to the bottom of the river in seventy-three years is obviously an extremely heavy one. Hercules, asked to clean the Augean stables, diverted the courses of two rivers, but he had clean rivers to work with. Furthermore, defendants may be able to argue that they relied on long standing government action or inaction. While such reliance will not excuse disobedience to the law it may be a consideration to be weighed in the framing of broad equitable relief. The requirements of fairness invoked by the Court in United States v. Pennsylvania Industrial Chemical Corp., supra, in gauging the propriety of criminal sanctions, may also apply when extreme hardship may be caused by an equity decree in this type of case. On the other hand, those who defend our nation’s waterways confront us with compelling and urgent problems, in the words of the Supreme Court, a “crisis”, which requires that the courts act in the broad public interest. The preservation of our rivers was the task undertaken by the Congress when it enacted the Rivers and Harbors Act of 1899. That the age and obscurity of this statute does not diminish its force and that the prevention of pollution was at least one of its aims was made entirely clear in Pennsylvania Industrial Chemical Corp., which was handed down by the Supreme Court after the decision below. Thus, while awareness of the economic and practical burdens which might be placed upon those who use the rivers for logging may measurably limit the scope of relief given, it cannot today justify ignoring the terms of section 13 of the Rivers and Harbors Act of 1899. Judgment vacated. Remanded to the District Court for proceedings not inconsistent with this opinion. STATUTORY APPENDIX 33 U.S.C. § 403 (Section 10 of the Rivers and Harbors Act of 1899) The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. 33 U.S.C. § 407 (Section IS of the Rivers and Harbors Act of 1899) It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful. 33 U.S.C. § 409 (Section 15 of the Rivers and Harbors Act of 1899) It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as “sack rafts or timber and logs” in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. . 33 U.S.C. § 410 (Act of May 9, 1900) The prohibition contained in section 409 of this title against floating loose timber and logs, or sack rafts, so called, of timber and logs in streams or channels actually navigated by steamboats, shall not apply to any navigable river or waterway of the United States or any part thereof whereon the floating of loose timber and logs and sack rafts of timber and logs is the principal method of navigation. But such method of navigation on such river or waterway or part thereof shall be subject to the rules and regulations prescribed by the Secretary of the Army as provided in this section. The Secretary of the Army shall have power, and he is authorized and directed to prescribe rules and regulations which he may at any time modify, to govern and regulate the floating of loose timber and logs, and sack rafts, (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, heretofore in this section described. The said rules and regulations shall be so framed as to equitably adjust conflicting interests between the different methods or forms of navigation; and the said rules and regulations shall be published at least once in such newspaper or newspapers of general circulation as in the opinion of the Secretary of the Army shall be best adapted to give notice of said rules and regulations to persons affected thereby and locally interested therein. . . . . In 1971 Hudson Pulp and Paper Corporation indicated that it intended to terminate its relationship with the Kennebec Log Driving Company and it now no longer placee logs in the river. . Defendants conceded below that the upper Kennebec is a navigable water of the United States within the purview of the Rivers and Harbors Act of 1899. . Private and Special Laws of Maine of 1829-35, ch. 590 (1835). . According to the minimum figure presented to the district court, 1.98% of the pulpwood placed in the river sinks to the bottom. . 33 U.S.C. §§ 1151-1175. . 33 U.S.C. §§ 1251-1376. . The parties agree that the recent legislation has no direct bearing on this litigation. . See 1 Maine Leg.Ree. 470, 497 (1971). . H.R.Doc.No.293, 54th Cong., 2d Sess. (1897). . Statement of Senator Frye, Chairman of the Senate Rivers and Harbors Committee, 32 Cong.Rec. 2297 (1899). . Statement of House Conferees, 32 Cong. Rec. 2923 (1899). . See II.R.Rep.N0.731, 56 Cong., 1st Sess. (1900). . 33 Cong-.Ree. 840 (1900). . H.R.Rep.No. 731, 56 Cong., 1st Sess. (1900) at 3. . 33 Cong.Rec. 4405 (1900), Sen.Rep.No. 1035, 56 Cong., 1st Sess. (1900). . 31 Stat. 172, now codified as 33 U.S.C. § 410. . Based upon the figure, given in oral argument, of 300,000 cords of wood floated down the river each year and accepting approximately 2% as the rate that such logs sink to the bottom (see n. 4 supra) then in three years about 18,000 cords—or 2,304,000 cubic feet—of waterlogged wood would be deposited in the upper Kennebec. . United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), quoting from New Jersey v. New York, 283 U.S. 336, 342, 51 S.Ct. 478, 75 L.Ed. 1104 (1931). . Had Congress intended to make the exemption from section 15’s ban on log driving conditional upon prior promulgation of navigational rules it could clearly have chosen a more apparent means than the wording of the Act of 1900. Particularly is this so in view of the clear and unequivocal way in which Congress framed sections 10 and 13 of the Act of 1899. In those sections certain behavior is illegal unless prior permission is obtained. Furthermore, in the legislative history of the Act of 1900 an alternative phrasing was considered and rejected which would have created an exemption only after rules and regulations had in fact been promulgated for the particular river. It is also highly unlikely that Congress intended an entire set of rules and regulations, as distinguished from a permit as in sections 10 and 13, to be a condition precedent to legal behavior. And where a river like the upper Kennebec is concerned, on which, as found below, no significant navigation other than by log driving has ever taken place, there would appear to be little logic in requiring that regulations be issued for the purpose of resolving a nonexistent conflict between forms of navigation, before the exemption would be effective. . The government also contends that the language used in the Act of 1900, “floating loose timber and logs, or sack rafts, so called, of timber and logs” does not refer to the entire practice of log driving but only those aspects literally encompassed in the language used. But there is not the slightest reason to believe that Congress meant the statute to have such a cramped and unnatural reading. The terms set out above were obviously a way to describe the traditional log drive as a whole and were the very terms used in section 15 of the Rivers and Harbors Act of 1899. Moreover, the language used rather adequately described the Kennebec log drive as it is carried on today. “Moating of loose timber and logs” is the way logs are moved by defendants on those stretches of the Kennebec where the current is strong enough to carry the logs downstream, and “sack rafts ... of timber and logs” refers to the means used to move logs across the places lacking strong current. (For descriptions of sack rafts see The Mary, 123 F. 609, 611, 613 (S.D.Ala.1903) and The Athabasca, 45 F. 651, 653 (W.D.Mich., N.D.1890)). Therefore, we find that the traditional log drive, as carried out on the Kennebec, is encompassed by the terms used in 33 U.S.C. § 410. The government also makes arguments based upon the premise that the first paragraph of 33 U.S.C. § 410 which refers to “floating loose timber and logs, or sack rafts, so called, of timber and logs” is more limited in scope than the second paragraph which refers to “floating of loose timber and logs, and sack rafts (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, heretofore in this section one hereof described [first paragraph of this section].” [Emphasis added.] But since the second paragraph has to do with the authority of the Secretary of the Army to promulgate regulations, the reference to “other methods of navigation” is not meant as a description of additional aspects of the practice of log driving, but as a description of entirely different, modes of river navigation with which log driving can potentially conflict, and thus to which regulations resolving navigational conflicts would refer. We therefore find no basis in the statutory language, and also find no basis in the legislative history, or in logic, for the offered premise and reject the arguments based thereon. . There is no legal precedent on the precise point presented in this appeal. The only reported cases involving challenges to logging practices under the Rivers and Harbors Act of 1899 or its predecessor statutes did find that booms were subject to challenge as obstructions to navigation, United States v. Bellingham Bay Boom Co., 176 U.S. 211, 20 S.Ct. 343, 44 L.Ed. 437 (1900), United States v. Wishkah Boom Co., 136 F. 42 (9th Cir. 1905), but Bellingham was decided prior to passage of the Act of May 9, 1900 and Wishkah, although it presented a case where the Act of 1900 would appear to have been at least facially applicable, simply ignored that statute. In United States v. Martliinson, 58 F. 765 (D.S.C.1893), the court found that the provisions of the Rivers and Harbors Act of 1890 barring obstruction to the navigable capacity of rivers did not apply to the floating of logs or rafts of logs. . See H.R.Rep.No.731, 56 Cong., 1st Sess. (1900). For examples of the kinds of conflicts that had arisen between log driving and steamboats, see. e. g., The Mary, 123 F. 609 (S.D.Ala.1903), Hall v. Chisholm, 117 F. 807 (6th Cir. 1902), The Athabasca, 45 F. 651 (W.D.Mich., N.D.1890). . We therefore disagree with the view expressed by the Seventh Circuit in United States v. United States Steel Corp., 482 F.2d 439 (1973), to the effect that while Congress may have intended that the Refuse Act ban deposit of any matter of any kind, Congress thought that the Secretary of War would have no authority to deny a permit purely on non-navigational grounds. A fair reading of the Supreme Court’s pronouncements on this subject, particularly United States v. Pa. Indust. Chem. Corp., which was handed down after the U.S. Steel Corp. decision, can only lead to the conclusion that its study of the Rivers and Harbors Act of 1899 and its history convince the Court that the Congress was concerned with pollution ab initio. This view is supported by the wording of section 13, in that while the ban on dumping of material on the banks of waterways is illegal only if obstruction to navigation results, the ban on dumping of matter directly into the water. is not so limited. Furthermore, predecessor statutes had included in the list of particular materials barred from deposit materials like the “sawmill waste”, “ballast”, “steam-boat ashes”, “oysters and rubbish” referred to by Mr. Justice Douglas in United States v. Standard Oil Co., 384 U.S. 224, 229, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and characterized by him as “pollutants”. Contemporary concern in the Congress over the hazard to the public welfare posed by water pollution can be discerned in II.R.Rep.No.89, 56 Cong., 1st Sess. (1900), in which the House Committee on Commerce proposed the creation of a scientific commission to investigate water pollution, saying in part, “It is one of the inalienable rights of the people to have the water for drinking, for watering stock, for manufacturing, agricultural, and domestic uses, come to them in its natural accustomed flow, free from pollution or sewage cast into it . . . . ” . H.R.Rep.No.731, 56 Cong., 1st Sess. (1900) at 3. . See 33 C.F.R. §§ 207.380, 207.360, 207.-780, 207.663 (1972). . In discussing the proviso in section 13 authorizing the issuance of permits the Supreme Court has said, “In exercising that authority the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary’s authority discretionary—i. e., it provides that the Secretary ‘may permit’ the deposit.” United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 662, 93 S.Ct. 1804, 1810, 36 L.Ed.2d 567 (1973). . We mean to intimate no view as to whether or not any such interpretation of the language of the statute can be justified, nor, if it can, whether defendants can take advantage of it. . United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966).

United States v. Pennsylvania Industrial Chemical Corp.

OPINION OF THE COURT ADAMS, Circuit Judge. The issues in this appeal center on the parameters of the Rivers and Harbors Act of 1899 with regard to discharges from an industrial plant into the Monongahela River, whether in the circumstances of this case a ■ crime has been committed within the terms of the Act, and whether, if the Act applies, the conviction in this case comports with due process considerations. In August, 1970, two teachers at the McKeesport Campus of the Pennsylvania State University canoed along the Monongahela River for the purpose of determining whether manufacturing operations on the river were discharging pollutants into it. They took samples on two different days — August 7 and 19 —at two outfalls owned by the defendant, Pennsylvania Industrial Chemical Corp. (PICCO). These were sent to the Allegheny County Testing Laboratory for analysis. Based on the results, the United States Attorney filed a criminal information against PICCO on April 6, 1971. Trial commenced before a jury on June 24, 1971, and the jury returned a verdict of guilty on June 29, 1971. The points with which we deal in this appeal fall into three broad categories: (1) The general applicability of the statute; (2) Its applicability to the particular circumstances of this ease; and (3) The due process grounds to be considered even if the statute would otherwise make PICCO’s activities criminal. I. The Statute is Generally Applicable Before evidence was presented, the district court preliminarily instructed the jury that the Government, in order to secure a conviction, was required to prove beyond a reasonable doubt that PICCO had discharged “refuse” matter from its plant, that the “refuse” was discharged into a “navigable water of the United States,” and that the discharge was not “flowing from streets and sewers and passing therefrom in a liquid state,” one of the exemptions set forth in the Act. The parties stipulated that PICCO owned the pipes through which the discharges entered the river, and that the Monongahela River is a “navigable water of the United States”, thereby narrowing the issues for the jury. PICCO first contends that the Act was intended to make criminal only the discharge of refuse which would impede navigation. Although the legislative history is equivocal on this point, we need look no further, however, than United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (3d Cir. 1967), for this Court’s holding that the Government need not prove that the discharge created an impediment to navigation in order to secure a conviction. There, petroleum products were spilled on the defendant’s land, and, by force of gravity, flowed into navigable water. Both sides there agreed that the defendant was not guilty of violating the second clause of section 407, which forbids the impeding or obstruction of navigation. Yet this court affirmed the conviction based on the first clause, dealing with the discharge of “any refuse”. Thus, the Act does apply to discharges of the type here in question, and gives no one the right to discharge “refuse matter of any kind” into “any navigable water of the United States.” Next, PICCO contends that, even assuming arguendo that the industrial wastes discharged by it were “refuse”, the portion of section 407 excepting refuse matter “flowing from streets and sewers and passing therefrom in a liquid state” from the coverage of the Act applies to the discharges here in issue as a matter of law. To support this position, PICCO relies on various texts and dictionary definitions written circa 1899, the year the Act became law, for the proposition that sewage was commonly-defined to include industrial wastes. Congress, however, appears to have had a very different concern when it enacted the exception dealing with refuse matter “flowing from streets and sewers.” As one legal scholar has noted: “[T]he sewage exception in the 1899 federal Refuse Act was designed to differentiate locally authorized from, unauthorized discharges. By excepting refuse ‘flowing from streets and sewers . . in a liquid state,’ Congress expressed awareness of the construction of public sewers, taking cognizance of the practice of the day of combining storm and sanitary sewers. The important point was not that waste made it through the system in a ‘liquid state’, but rather that local authorities had some control over who connected to a sewer system.” Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 778 (1971) (footnote omitted); cf. United States v. Republic Steel Corp., 362 U.S. 482, 506 n. 27, 80 S.Ct. 884, 4 L.Ed.2d 903 (Harlan, J., dissenting). In addition, the definition of sewage suggested by the Supreme Court does not materially differ from that employed by the district court, United States v. Republic Steel, supra, at 490, 80 S.Ct. 884. Moreover, to assert, as does PICCO, that any pipe carrying any wastes may be called a sewer, would erode the salutary command of Congress as stated in the Act in favor of a particular exception. As a matter of law, then, liquid industrial waste flowing through pipes into navigable water is not exempt from the proscriptions of the Act. The final argument advanced by PICCO in this area of statutory interpretation is that unless section 407 is read in conjunction with the Water Pollution Control Act of 1948, 33 U.S.C. § 1151 et seq., its amendments of 1961 and 1965, and the Water and Environmental Quality Improvement Act of 1970, a conflict among the statutes is created. PICCO contends that, in order to resolve the conflict, the district court should have defined “refuse” to incorporate the water quality standards established pursuant to 33 U.S.C. § 1160(c)(1). Under the Rivers and Harbors Act of 1899, the discharge of any refuse is made subject to a permit program while the newer statutes provide that discharges are proscribed only when they exceed the applicable water quality control standards. The federal standards set by the newer water quality statutes rely primarily on those of the states, with the proviso that in certain circumstances a federal standard may be applied. PICCO offered to prove at the trial that it had a permit from the Commonwealth of Pennsylvania to discharge its effluents into the Monongahela River, and that the discharges met the federal standards by complying with the criteria established by Pennsylvania. PICCO reasons that if the Government prevails on this appeal, PICCO will be branded a criminal under one statute while it meticulously observes a companion provision aimed at the same goal. PICCO contends that we should resolve this apparent conflict by reading all the pollution acts in pari materia to reach an accommodation in the same fashion that the Supreme Court in Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), reconciled the anti-injunction provision of the Norris-LaGuardia Act, 29 U.S.C. § 104, with the portion of the Labor Management Relations Act directing the federal courts to take jurisdiction in certain labor disputes, 29 U.S.C. § 185(a). Such a course of action would be unjustified under the circumstances of this case on a number of grounds. It is crucial to note that beginning with the Water Pollution Control Act of 1948, Congress has on four separate occasions in the past 24 years specifically stated that section 407 of the Rivers and Harbors Act, banning “any refuse matter”, was not affected by the subsequent legislation. Moreover, the Rivers and Harbors Act and the Water Pollution Control Act were designed to accomplish what may be viewed as the same end by different means. The Rivers and Harbors Act, by its terms, stipulates criminal penalties; the Water Pollution Control Act provides for civil actions only. The Rivers and Harbors Act may be enforced against those discharging refuse into any navigable water of the United States, while the Water Pollution Control Act may be used only if the pollution has an interstate effect. Finally, under the Rivers and Harbors Act there is no need for the 180-day notice period prior to the commencement of a civil proceeding as required by the Water Pollution Control Act. In view of these significant differences in approach, and the “cardinal rule that repeals [of legislation] by implication are not favored,” the district court was correct when it declined to define “refuse” as used in the Rivers and Harbors Act in terms of the water quality standards established pursuant to section 1160-(c) (1) of the Water Pollution Control Act. II. The Circumstances Here Demonstrate That No Crime Was Committed Although we have held above that it would be improper to accommodate the 1899 Act with recent water pollution legislation by redefining the word “refuse” in the 1899 Act, the provision of a permit program in the 1899 Act is important if some sense is to be made of these statutes. It should first be pointed out that neither United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., supra, nor United States v. Esso Standard Oil Co. of Puerto Rico, supra, dealt with the existence or non-existence of a permit program under the 1899 Act. In Republic Steel, it was clear that the discharges impeded navigation and that no permit was sought or held by the company, while in both Standard Oil cases the existence of a permit program was irrelevant because of the accidental nature of the discharges involved. For present purposes, the significance of these cases is that the courts there found a congressional intent that all discharges of refuse of any kind, including discharges of refuse which do not adversely affect navigation, should be subject to regulation. They did not, however, find that Congress intended to prohibit all such discharges. The conclusion that section 407 of the Rivers and Harbors Act was intended to establish a regulatory program rather than a general prohibition is indicated not only by practical considerations relating to the drastic impact that a general prohibition against discharging any “foreign substance” would have had on the nation’s economy even in 1899, but also by Congress’ subsequent enactments in the water quality field. There would appear to be something fundamentally inconsistent between the program of developing and enforcing water quality standards under the Water Quality Act and section 407 of the Rivers and Harbors Act, if the effect of the latter is to prohibit all discharges of industrial waste into navigable waters. Congress, however, obviously thought that the two statutes were compatible or it would not have expressly disavowed any intention to repeal or affect section 407 when it enacted the Water Quality Act of 1965. What makes the two statutes compatible is the permit program contemplated by Section 13. The Government recognizes this fact when it describes the purpose of the 1965 and 1970 water quality acts as follows: “Congress sought to establish minimum standards under the new laws; the older law was retained, however (33 U.S.C. § 1174), as a foundation. It announces the federal policy that no person or corporation has a right to discharge into any navigable stream unless permitted to do so. The new law proceeds to state that such permission may not be granted to one whose discharge would violate the standards to be established.” The situation in August of 1970, when the discharges here in issue were made, must be evaluated with this in mind. In short, following the Standard Oil case it was clear that discharges of refuse not tending adversely to affect navigation were within the scope of section 407. It was also clear, at least by the time of the enactment of the Water Quality Act of 1965, that Congress intended the Secretary of the Army and the Corps of Engineers to administer section 407 not as a vehicle for protecting navigable waters from all discharges of industrial refuse, but rather as a vehicle for furthering the national conservation policy. PICCO offered to prove in the court below that the executive branch of the Government simply failed to respond to this congressional directive insofar as it related to discharges having no significance for navigation until December of 1970, when the institution of a permit program under section 407 was announced by the President. There would appear to be substantial support for this contention. From 1965 until December of 1968, the only regulation pertaining to section 407 of the Rivers and Harbors Act provided as follows: “§ 209.395. Deposit of refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of ‘refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state’. The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.” 33 C.F.R. § 209.-395 (1967) PICCO tendered in evidence a publication of the Corps of Engineers dated March 18, 1968. This publication contains the following statements, among others: “1. Sections 10 and 13 of the River and Harbor Act ... is (sic) designed to protect navigation and the navigable capacity of Federal navigable waters and places responsibility for enforcement upon the Department of the Army. 2. The instructions and program that follow in this paragraph deal with the problem of illegal deposits in navigable waterways under the law which explicitly concerns navigation. The Corps of Engineers has a responsibility for pollution abatement and is carrying out that responsibility under various other media. 3. The concern of the Department of the Army in industrial waste under this program lies in the effect the suspended solids contained in the effluent from industrial outfalls have on navigable capacity of the waterway. The Department is primarily concerned under this program with the shoaling of authorized improved navigation channels and in placing the responsibility and/or cost for moving these shoals on those industries that are causing them.” In December of 1968 the Corps of Engineers of the Department of the Army published a complete revision of Part 209 of the Code of Federal Regulations. While the revision served notice that the Corps of Engineers would consider pollution and other conservation factors in passing on applications under sections 9 and 10 of the Rivers and Harbors Act for permits for “work in navigable waters” (33 C.F.R. § 209.120(d), the sole reference to section 407 again described it in terms limited to problems of navigation: This version of Part 209 remained in effect in August of 1970. “(2) Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 C.F.R. § 209.-200(e) (2). The materials which PICCO submitted to the district court appear to indicate that the agency responsible for administering the regulatory program under Section 13 made no determination that its congressional commission required it to deny permits on a blanket basis to all seeking to discharge industrial refuse having no adverse effect on navigation. Nor would the absence of a permit program in this area appear to be the product of a temporary administrative moratorium pending development of appropriate policies and procedures. Rather it would appear that the Corps of Engineers, perhaps as a result of a mistake of law, made a conscious decision to decline to undertake the responsibility imposed upon it by Congress. There is a certain appeal to the crisp conclusion of the district court that Congress intended criminal penalties for one who discharged without a permit and that PICCO concededly had no permit. When viewed in the context of this case and tested with the touchstone of congressional intent, however, this analysis produces an unsound result. Congress contemplated a regulatory program pursuant to which persons in PICCO’s position would be able to discharge industrial refuse at the discretion of the Secretary of the Army. It intended criminal penalties for those who failed to comply with this regulatory program. Congress did not, however, intend criminal penalties for people who failed to comply with a non-existent regulatory program. The members of Congress who enacted the Water Quality Acts of 1965 and 1970 with their “saving provisions” for section 407 of the Rivers and Harbors Act might well be astonished by the broad implications inherent in the judgment of conviction entered below. Similarly unsound is the Government’s contention that the absence of a permit program is irrelevant because PICCO never applied for a permit. If PICCO proves what it has offered to prove and if, as we have concluded, Congress did not intend to make failure to comply with a nonexistent program a crime, we do not believe that the axe can stay or fall depending upon whether the defendant did or did not go through the charade of making an application for something which did not exist. Out of an abundance of caution, we hasten to add that what we have said would have no relevance whatever to any discharge occurring after the implementation of the permit program. Compliance with the water quality standards should not, of course, be a defense to an action brought under section 407 against one who has discharged without a permit. Congress intended that the executive branch of the Government have advance notice of proposed discharges and an opportunity to determine whether such discharges will be consistent with national, policy. Accordingly, one who discharges without a permit undermines the program regardless of the character of the discharge. There is a vast difference, however, between a conviction of one who fails to secure an available permit and a conviction of one who fails to secure a permit which is unavailable. If this case falls in the latter category, we hold that PICCO has been convicted of a crime which Congress has never created. III. Even If The Act of 1899 Were Construed To Make PICCO’s Activities Criminal, Due Process Considerations Would Require A Reversal Because of the importance of this case in the ecology field, we are constrained to set forth an alternative basis for our order directing a reversal of the conviction and a remand. The proposition is advanced that when we take together the vagueness of the Act, its history, the administrative interpretation of the Act by the Corps of Engineers, and other actions of the Government, it would be unreasonable to expect an individual or a corporation to conclude that the Act would apply to industrial discharges not affecting navigation. One of the important aspects of PICCO’s contentions relates to the portion of section 407 that authorizes “The Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, [to] permit the deposit of any material above mentioned in navigable waters * * * ” The Government agrees that possession of a permit issued by the Secretary would constitute a complete defense to the prosecution. The uncontradicted testimony of Mr. William Johnston, a Vice-president of PICCO, showed that at least since 1944 no permit program had been established by the Corps of Engineers for discharges into the Monongahela River. In fact, it was not until December 23, 1970, more than four months after the commission of the act alleged in the indictment, that by Executive Order 11574, 35 Fed.Reg. 19627, the President announced the institution of a permit program under section 407 to achieve compliance with federal water quality standards. Mr. Johnston also testified that in 1949 he had spoken with an individual in the Corps of Engineers office in Pittsburgh and that as a result of that conversation, PICCO never applied for a permit to discharge refuse into the river. PICCO thus takes exception to that portion of the district court’s charge which stated, “But it is not the contention of the Defendant that the act was done unknowingly or unintentionally.” PICCO objects on the basis that it was acting in a manner consistent with what it thought the law required, and that Mr. Johnston had been told by a member of the Corps of Engineers that the statute did not require a permit for the discharge of industrial wastes not affecting navigation. The test to determine whether these facts, if true, would be sufficient to make out a due process violation is set forth in the leading case of Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926): “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it that conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law: and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” In the situation presented here, however, PICCO claims it was misled by interpretation given to the statute by the Corps of Engineers, the body primarily responsible for the navigable waters of the United States. Cf. United States v. Painter, 314 F.2d 939 (4th Cir.), cert. denied, 374 U.S. 831, 83 S.Ct. 1873, 10 L.Ed.2d 1054 (1963); United States v. Mancuso, 139 F.2d 90 (3d Cir. 1944). There is evidence that prior to December, 1970, the Corps of Engineers, in its published regulations, had consistently interpreted section 407 to require a permit for industrial discharges only when the effect of the discharges would be to impede navigation, e. g., a deposit of solids on the river bed tending to lower the water level of a navigable channel. The only reference to section 407 in the Corps’ regulations governing the issuance of the various permits under the 1899 Act is found at 33 C.F.R. § 209.200(e), reproduced supra at 14. Moreover, in an internal regulation published in March, 1968, reproduced supra at 14, the Corps noted its concern for navigation only. Because this Court must give great weight to the consistent interpretation of a statute by the agency primarily responsible for its enforcement, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), PICCO also should be permitted to rely on the Corps’ reading of section 407. It is the position of the Government, on the other hand, that the statute does not require a showing of scienter — criminal intent — and the mere lack of a permit program should not constitute a defense to a criminal charge under section 407. In its two major decisions concerning the 1899 Act the Supreme Court has not given any indication whether scienter may be a necessary element of the offense under section 407. United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). In fact, in the Standard Oil case, the Court specifically left open the scienter question. 384 U.S. at 230, 86 S.Ct. 1427. The Government conceives PICCO’s argument as encompassing nothing more than the traditionally rejected defense that ignorance of the law is an excuse. PICCO does not claim that it did not know the law existed. Its proofs showed that it was well aware of section 407. Rather, PICCO asserts that it was affirmatively misled by the Corps of Engineers to believe that the Act would be inapplicable to discharges of waste that did not impede navigation. Thus the assertion is not that PICCO was ignorant of the law’s application to it and therefore lacked scienter. Instead, it is contended that had it not been for misleading behavior — whether intentional or not — of the Corps of Engineers, PICCO would have been able to decide if it should apply for a permit from the Corps, and depending on the Corps’ response to an application, PICCO could have planned its behavior accordingly. It might be maintained that, if nothing else, the Supreme Court’s decisions in Republic Steel and Standard Oil should have given PICCO notice that it was in violation of the 1899 Act. In Republic Steel, it is clear that the industrial discharges impeded navigation contrary to the command of the second clause of section 407. PICCO has claimed throughout the litigation, and the claim is uncontradicted, that its discharges have no navigational effect. Standard Oil, on the other hand, dealt with the accidental discharge of aviation fuel, and the Court decided only that commercially valuable substances could be “refuse” for purposes of section 407. Similarly, our decision in United States v. Standard Oil of Puerto Rico, supra, is insufficient to have made PICCO aware of its alleged continuing violation of the Act. The issue there was whether the defendant could be responsible for gasoline deposited into navigable waters not directly and intentionally, but which had spilled on defendant’s land and by force of gravity flowed into the water. That the 1899 Act has been employed to prosecute onetime accidental deposits of refuse has been clear for some time. See, e. g., La Merced, 84 F.2d 444 (9th Cir. 1936). No decision has been brought to our attention, however, holding criminally responsible an industrial firm whose discharges were not one-time accidents or whose day-to-day discharges had no navigational effect. In much the same way, the Government’s contention that lack of a permit program will not constitute a defense misses the point here. We are presented with much more than the mere absence of a permit program. To begin, it was not unreasonable for PICCO to read section 407 as permitting the discharge of wastes not affecting navigation. The Corps of Engineers, in published regulations, appeared to read the Act in the same way. Until 1970, the Department of Justice concurred in this interpretation of the Act. According to an Assistant Attorney General, “Only until early last year, this statute was administered in the Department of Justice strictly as a criminal statute and it was usually applied to discharges into the navigable waters of the United States which impeded navigation.” Proceedings, Refuse Act of 1899, 30 Fed.B.J. 327, 328 (1971). When we add to this the proffered testimony of Mr. Johnston that a member of the Corps of Engineers told him no permit would be necessary if the discharges would not impede navigation, it is clear that PICCO does not rely on the mere lack of a permit program. It relies, rather, on the alleged fact that it was affirmatively misled into not applying for a permit. In such circumstances, the apparent position of the Government may well have been unfair to the point that PICCO’s conviction violated due process. The concept of fair play is implicit in our basic notions of what is meant by due process of law. In this regard, an individual or corporation should not be held criminally responsible for activities which could not reasonably have been anticipated to be illegal based on 70 years of consistent government interpretation and subsequent behavior. Cf., Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 803, 98 L.Ed. 989 (1954). We hold, in the alternative, therefore, because evidence which would have been relevant to PICCO’s defense was incorrectly excluded by the district court and because the jury was not instructed regarding such defense, that PICCO is entitled to a new trial. IV. Proceedings On Remand Based on our holding in Part II, supra, PICCO should be given the opportunity to prove the non-existence of a permit program at the time of the alleged offenses. Should the evidence show that, in fact, a permit program did exist at the relevant time, then, based on Part III, supra, PICCO should be allowed to attempt to prove that the Corps of Engineers affirmatively misled it into believing that a permit was not necessary in its situation. Accordingly, the judgment of conviction will be reversed and the cause remanded to the district court for proceedings consistent with this opinion. . Section 13 of the Act, 33 U.S.C. § 407 provides: “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed : Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” . Based on the data received from the teachers, informations were filed on the same day against United States Steel Corp., Jones & Laughlin Steel Corp., and Wheeling Pittsburgh Steel Corp. Although PICCO elected to go to trial immediately on its indictment, the other three defendants moved to dismiss the indictments against them in the district court. The motions are now in abeyance pending the outcome of this appeal, and the three were granted status as amici in this case. . Throughout the trial PICCO attempted to show that the matter flowing through its pipes into the river contained solids in solution, rather than suspension, thereby hoping to prove that its discharges would not “impede navigation”. The district court sustained certain objections of the Government to these offers, and did not charge the jury that PICCO’s discharges must have impeded navigation. In light of the decision in Standard Oil and the above discussion, this proof would not have constituted a defense. PICCO was not entitled to the charge, and, therefore, the trial court did not err in its rulings in this regard. . 33 U.S.C. § 1174. . Lynch v. Household Finance Corp., 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822 (1972) citing Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). . While Congress did not until the AVater Quality Improvement Act of 1970 add to its water quality control legislation an express prohibition against the granting of a § 407 permit for discharges not meeting the water quality standards, this action was an explicit recognition of what Congress must have assumed when it enacted the AVater Quality Act of 1965— that applications for permits under § 407 would be acted upon with an eye to the water quality acts. . The Corps’ § 4 jurisdiction was described in the preceding paragraph as follows: "(1) Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419), authorizes the Secretary of the Army to prescribe regulations to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of dredgings and other refuse materials whenever ■in his judgment such regulations are required in the interest of navigation.” (Emjiliasis supplied) 33 C.F.R. § 209.-200(e) (1). . Research lias revealed only one case where the prosecuting authorities have pressed criminal charges under comparable circumstances. The conviction was overturned. Brown v. State, 74 Tex.Cr.R. 108, 167 S.W. 348 (Ct.App.1914). See also Mitchell v. Dixon, 140 Tex. 520, 168 S.W.2d 654 (Texas Com.App.1943). . We do not intend to convey the impression that by reversing the conviction here we are indifferent to the need for environmental improvement. However, because federal water quality standards may be enforced vigorously as soon as a permit program is implemented, our decision today should have very little effect on the ecological well-being of our nation in the future, and, in fact, this case will have only small implications for the past. . See, Sanders, The Refuse Act of 1899; Key to Clean Water, 58 A.B.A.J. 468, 469 (1972). . We are quiek to point out that because of the nature of our alternative basis for decision, certain of the rationales advanced here may appear to be inconsistent with those set forth in Part II, supra. . Adding to the claimed confusion is the Water Quality Act of 3965, according to which if PICCO obeyed state standards and obtained a state permit, its discharges would not be subject to abatement. Although we held above that PICCO’s belief was erroneous that it was not in violation of § 407 because of its alleged compliance with the 1965 Act, PICCO’s belief appears not to have been unreasonable or held in bad faith. Moreover, PICCO asserts that to accept the Government’s view of the Act, might well create a confiscatory impact. If it is true that no discharge permits have been available from the Corps of Engineers, every industrial concern along the Monongahela, and perhaps throughout a substantial portion of the nation, which uses water from navigable waters in the operation of its plant and puts back something other than pure water would be in violation of the Act. Indeed, for practical purposes, many of these plants might not be able to operate at all. . Although the Government points to a Corps pamphlet published in 1968 to show its concern with pollution, we do not find the passage to convey clearly the meaning ascribed, and we have grave doubts that PICCO can be held to have knowledge of such materials. See Hotch v. United States, 212 F.2d 280, 14 Alaska 594 (9th Cir. 1954). . In this regard it is interesting to note that if the Federal Criminal Code proposed by the National Commission on Reform of Federal Criminal Laws were the law, PICCO would appear to have a defense under § 609 whch reads: “Except as otherwise expressly provided, a person’s good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in: (a) a statute or other enactment; (b) a judicial decision, opinion, order or judgment; (c) an administrative order or grant of permission; or (d) an official interpretation of the public servant or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the crime.” As explained in Working Papers, National Commission on Reform of Federal Criminal Laws 138 (1970), “If a defense of reasonable reliance on a competent (official or unofficial) statement of the law is omitted, prosecutors can be counted on to decline prosecutions where the defense would be plainly and fully applicable. There are, indeed, remarkably few reported cases in which the defense has been at issue. Judges will not be likely to impose severe sentences in the eases brought by a too zealous prosecutor. Nevertheless, a person who would not have violated the law if his reasonable understanding of the law, gained by his own efforts to obtain legal advice or from reliable official statements, had not been mistaken should not find himself in the position of having to depend on the prosecutor’s or trial judge’s decision not to prosecute for a crime which, in law, lie committed.” In this case, the prosecutor did elect to proceed and PICCO was given the maximum fine. . It should also be pointed out that even the Attorney General of the United States, when considering the purpose of a direct predecessor of the 1899 Act, stated : “You should be governed only by considerations affecting the navigation of the river and, if there be none now, then by considerations which may affect future navigation, whether it is likely to become important or not, which Congress must be presumed to have had in mind in authorizing the present and large expenditures which have been made in the improvement of the river.” 21 Op.Atty.Gen. 305, 308 (1896). . The holdings of parts II and III of this opinion are limited to the record with which we have been presented.

United States v. Pennsylvania Industrial Chemical Corp.

STAPLETON, District Judge (concurring) . I concur in the views expressed in the first two sections of the majority’s opinion. I am unable, however, to subscribe to the views stated in the third section of that opinion. In United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 1430, 16 L.Ed.2d 492 (1966) the Supreme Court of the United States concluded that “the word ‘refuse’ [as used in Section 13 of the Rivers and Harbors Act] includes all foreign substances and pollutants and sewers and passing therefrom in a apart from those ‘flowing from streets liquid state’ into the watercourse.” In United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (3rd Cir. 1967), this Court followed suit by upholding a conviction under Section 13 in a case where there was no evidence that the discharge might adversely affect navigation. I find it difficult to assign to these pronouncements the limited significance given them in the third section of the majority’s opinion. As I read this portion of the majority’s opinion, it holds that despite the pronouncements of the courts in these cases, PICCO may successfully assert a defense that it was affirmatively misled by the regulations of the Corps of Engineers into believing that Section 13 did not apply to discharges which would not adversely affect navigation. While I agree that the Due Process Clause may require a court to recognize the defense suggested by Section 609 of the proposed Federal Criminal Code'and may encompass a theory of estoppel even in criminal cases, I do not believe that a citizen may reasonably rely on a statement in an administrative regulation when the judicial branch of the government has clearly declared the contrary. . See Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046 (1969). nation.

United States v. Esso Standard Oil Co. of Puerto Rico

OPINION OF THE COURT STALEY, Chief Judge. Esso Standard Oil Company of Puerto Rico (hereinafter “Esso”) was convicted on two charges of the offense of discharging refuse into navigable waters in violation of § 13 of the Rivers and Harbors Act, 33 U.S.C.A. § 407 (1957), and was fined $1,000 for each violation. The trial judge, sitting without a jury, found that on two occasions, Esso had caused liquid petroleum products to be spilled upon its land, that these products flowed over the ground into the ocean, and that such conduct violated § 13. Esso urged that its conduct was not within the acts proscribed by § 13, and that there was insufficient evidence before the trial judge to support the convictions. Viewing the evidence in the light most favorable to the Government, as we must, the following facts were established. Esso operated a “tank farm” near Frederiksted, St. Croix. The tank farm consisted of storage tanks and pumps and was used by Esso as a distribution station for “white” petroleum products, i. e., diesel fuel, kerosene, and regular and premium gasoline. The tank farm was located close to the shoreline. Between Esso’s plant and the shore was a dirt road and a concrete apron belonging to a local rum distillery. Upon this apron were pumps used by the distillery for molasses and “navy special,” a dark fuel oil. At the time of the events in question, Esso employed one Louis Soto as plant supervisor, and this person was in exclusive charge of the loading operations conducted at the Esso plant. During the latter part of December, 1964, some of the persons living along the coast near Esso’s tank farm complained to the Coast Guard that Esso was causing petroleum pollution in the adjoining coastal waters. Gn December 23, 1964,. one of the neighbors, Admiral John H. Schultz (Ret.) called the Coast Guard to complain of renewed pollution, and asked that one of the Coast Guardsmen meet him at the Es30 tank farm. Then Admiral Schultz and Mr. Theodore Smejkal, operator of a nearby resort, went over to Esso’s establishment. At the trial, both Admiral Schultz and Mr. Smejkal testified that they observed and photographed heavy spillage of a clear, irridescent petroleum product at the Esso tank farm. Their pictures, introduced into evidence, show this spillage running from the area where Esso’s pumps are located, across the road in front of Esso’s establishment, down the side of the distillery’s apron, and through a hole cut in the curbing of the apron and thence to the rocks below and the sea. The oil remaining on the road, the apron and in pools between the rocks below the apron was described as clear. Admiral Schultz testified that when he said to the Esso attendant that the attendant had spilled kerosene, the attendant replied, “No, it is diesel oil.” A member of the Coast Guard testified that he had responded to the various complaints, and had visited the Esso tank farm pursuant thereto to try to correct the problem. While the Coast Guardsman was not able to verify the pollution of the 23rd of December because he arrived too late in the day, he did testify that there was evidence of pollution about the premises and the shore when he visited the tank farm on the 29th of December. On the basis of the testimony before him, the district judge denied Esso’s motions for acquittal and found Esso guilty on both counts. A motion for a new trial was denied, and sentences were imposed. Esso argued in the district court and on appeal that it could not have violated § 13 of the Rivers and Harbors Act as a matter of law. Section 13 provides as follows: “Deposit of refuse in navigable waters generally. “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or in to any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed * * Section 16 of the Act, 33 U.S.C.A. § 411 (1957), makes violation of § 13 a misdemeanor punishable, in the case of a corporation, by a fine not to exceed $2500 with one. half of the fine to be paid to the person giving information leading to the conviction. These sections are made applicable to the Virgin Islands by 48 U.S.C. § 1399 (1952). Esso urges that the remoteness of its activities from the shoreline isolates it from liability under the Act. As Esso points out, § 13 creates two separate offenses: (1) the discharge of refuse into any navigable water, and (2) the deposit of material on the bank of navigable water where it is likely that the material will be washed into the water and impede or obstruct navigation. United States v. Ballard Oil Co., 195 F.2d 369, 370 (C.A.2, 1952); La Merced, 84 F.2d 444, 445 (C.A.9, 1936). Both Esso and the United States agreed here that Esso did not violate the second clause because there is no suggestion that navigation was impeded or obstructed. Esso further argues that the first clause of § 13 contemplates only “direct” discharges of refuse into navigable water, and that therefore the evidence showing the remote spillage of á liquid petroleum product and the flow of this liquid over a road and another company’s property and into the sea does not establish a violation of the first clause of § 13. We cannot agree with Esso’s construction of § 13. Just last year the Supreme Court, holding that 100-octane gasoline was refuse within § 13, announced that § 13 must not be given a “narrow, cramped reading” to defeat its purposes. United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). See United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). It seems clear to us that the first clause of § 13 does reach “indirect” deposits of refuse in navigable water. This first clause expressly proscribes the deposit of refuse into non-navigable water where the refuse will in turn wash into navigable water. That other “indirect” deposits are within the contemplation of the first clause is clearly implied by the express exemption of one type of indirect deposit — the collection and discharge of sewage, i. e., “refuse * * * flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water * * * or tributary of any navigable water * United States v. Republic Steel Corp., 362 U.S. at 490-491, 80 S.Ct. 884. Here, though Esso did not run a pipe to the water’s edge and discharge petroleum products directly into the sea, Esso’s discharge of the oil was in such close proximity to the sea that the oil flowed there by gravity alone. While there may be cases where the defense of remoteness would be available, this is not such a case. To accept the construction urged upon us by Esso would indeed constitute the adoption of a technical or “cramped” reading of the section contrary to the mandate of the Supreme Court, supra. Our interpretation of § 13 finds support in the Ballard Oil case, supra. In Ballard Oil, the court affirmed a conviction of the oil company where the defendant pumped too much oil into tanks on the shore, the oil overflowed into waste pipes and was discharged into the river. The defendant was prosecuted under the first clause of § 13. The Second Circuit held that the sole reason for the overlap between the first and second clauses of § 13 was that the second clause reached materials deposited on shore “which gravity alone will not carry into a stream.” 195 F.2d at 370-371. Thus in Ballard Oil the oil pollution accomplished “indirectly” through the agency of a waste pipe constituted a violation of § 13. Esso also argues that the Government’s evidence was insufficient to support a criminal conviction. The findings of fact by the trial judge are supported by adequate testimony and we will not interfere with them on appeal. Government of the Virgin Islands v. Du Boyce, 4 V.I. 107, 267 F.2d 512 (C.A.8, 1959). The judgment of the district court will be affirmed.

United States v. 531.13 Acres of Land

ALBERT V. BRYAN, Circuit Judge: These two eminent domain cases arise out of the establishment by the United States of the Hartwell Dam and Reservoir Project, a flood control venture on the Savannah River, the South Carolina-Georgia boundary. In each, claim was made for just compensation for “rights” extinguished by the waters impounded by the Dam. In No. 10,421, the claimant is J. P. Stevens & Company, Inc.; in No. 10,422 the Duke Power Company. Claimants were riparian owners along the Seneca River, a source-tributary in South Carolina of the Savannah. Acceptable compensation has been made to them for such fast land as was acquired or inundated by the Government in the undertaking. The sole question is whether it must also compensate Stevens for the loss of its waste-disposal use of the Seneca, and Duke for the loss of water power, all of which were enjoyed before, but were lost contemporaneously with, the impounding of the water. The action against Stevens was begun August 9, 1960, that against Duke on October 21, 1960. A Commission was appointed by consent under F.R.Civ.P. 71A(h) to hear these and other cases together. It reported the claims as sustained in fact and in law, and fixed the compensation considered just and reasonable therefor. The District Court reached the same conclusions on independent findings as well as in approval of those made by the Commission. On the Government’s appeal opposing any allowance whatsoever for the alleged losses, we reverse, holding that neither claim represents a vested property right of the condemnee. The Seneca River commences in Anderson County, South Carolina, as a continuation of the Keowee River, and courses southeasterly for approximately 27 miles before joining the Tugaloo, at the now abandoned town of Anderson-ville, to form the Savannah River. The Stevens property, on which stands its Utica Mohawk textile plant, is located on the Seneca, about 22.5 miles upstream from the Savannah’s beginning at Andersonville. The Duke property, consisting of a dam, reservoir and hydroelectric machinery, is also on the Seneca at Portman Shoals, 8 miles above the formation of the Savannah. The Hart-Well Dam is on the Savannah, 5 miles below Andersonville. In width from 100 to 200 feet, with well-defined banks, the Seneca has an average depth of 3 to 4 feet. In its 27-mile reach to the Savannah, it falls 111 feet. Along the way, Portman Shoals extends for about 3 miles, descending 52 feet or an average of 17.37 feet per mile. Its depth at the Shoals varies from 1 to 2i/2 feet. The navigability of the Savannah at Hartwell Dam is undisputed. The chief controversy at trial was whether the Seneca was navigable as far up, respectively, as the Stevens and Duke holdings. Both the Commission and the District Court found it not to be a navigable stream at and between these locations. The allowance of Stevens’ and Duke’s claims rested on this determination. The reasoning was that the sovereign power of the United States over its waters, derived from the Commerce Clause of the Constitution, United States v. Appalachian Power Co., 311 U.S. 377, 404, 61 S.Ct. 291, 85 L.Ed. 243 (1940), does not embrace nonnavigable streams; that the privileges enjoyed by Stevens and Duke, and erased by the impoundment of the Hartwell Dam, were not being exercised in a navigable stream; and therefore these were private rights which could not be taken without compensation. As our decision is not based in either instance upon the navigability or nonnavigability of the Seneca, we have no occasion to deal with this question. The Stevens Case The Stevens property consisted of 905.64 acres, of which the Government took 509.64 in fee and 21.49 in easements, a total affected acreage of 531.13. The original tract was roughly square, the Seneca River forming its east boundary, and Martin’s Creek, which eventually enters the Seneca, forming most of the south boundary. The textile plant occupied 17 acres in the center of the square, but it was not included in the condemnation. Waste waters from the plant were discharged into an open ditch about 2800 feet in length, which emptied into Martin’s Creek. The latter ran for 3300 feet before it joined the Seneca, some 22% miles above Andersonville. For this distance Stevens owned, in fee or by easement, both sides of Martin’s Creek. The Government’s take embraced all of Stevens’ interest in Martin’s Creek, the open ditch and the land lying between the plant and the Seneca, extending to the river’s ordinary high-water line. The wastes, aside from treated domestic sewage, consisted daily of some 2,-500,000 gallons of water, originally taken from the river and used in bleaching, dyeing, and finishing cloth. In the process starches and spent dye-stuffs were picked up, with the result that the discharge had a color of “strong coffee to weak tea”. Indisputably, the waters of the creek were “heavily” or “grossly” polluted thereby. The contamination, principally, was a strong caustic alkalinity, not injurious to fish, livestock, irrigation and probably inconsequential to swimmers. Despite this infiltration, the Seneca waters, before the coming of the Hartwell Reservoir, met the Class C rating of the South Carolina Pollution Control Authority. It had issued a Class C permit to Stevens for the discharge into Martin’s Creek and the Seneca. The Hartwell Dam created a vast storage reservoir or lake behind it, overflowing and obscuring large areas beside the upper tributaries of the Savannah. This impound was devoted incidentally to public recreational purposes, such as boating, fishing and swimming. Important here, the backup of the waters destroyed the flow and outfall from Stevens’ open ditch into Martin’s Creek and the flow of the latter into the Seneca. In view of the reservoir’s recreational functions, the State Water Pollution Authority, in admittedly valid procedings, reclassified the receiving waters of the Seneca to Class A. This change, dictated by the “human element” — concern for the health of swimmers — meant that the river must be maintained in a purer condition than Class C waters, the higher standard excluding the reception of Stevens’ wastes. After conferences and the rejection of several of its proposals, Stevens obtained a Class A permit on condition that it build, as it did, a disposal facility. This unit consists of a tower located on the Seneca’s bank, with a foundation 60 feet beneath the lake’s surface. The wastes are piped to the tower, there diluted with lake water, then pumped into a dispersal system and thence discharged into the lake through nozzles 50 feet below the lake level. Stevens’ argument for compensation is this: with Martin’s Creek and the Seneca in their natural condition, the dumping of its untreated wastes into them was permissible as an inherent riparian property right; the Hartwell Project, in converting the creek and river into public recreational waters, brought about the river’s reclassification; ergo the necessity for the installation of the disposal plant was directly and immediately attributable to the Government’s action. In this connection Stevens refers to the testimony of the Authority’s director that, but for the creation of the storage pool, Stevens could have continued indefinitely with the ditch-creek-river discharge. In this fashion Stevens endeavors to counter the Government’s assertion that the decision of the Authority, and not the act of the United States, was the real cause of the river’s reclassification and Stevens’ outlay for the disposal plant. The Commission and the District Court found that the cost of the construction and operation of this plant represented the fair value of the disposal privileges enjoyed by Stevens before the creation of the reservoir. As compensation for this loss, Stevens was awarded $550,000. The justness of this amount, if by law recoverable, is not challenged. In our opinion Stevens’ position is untenable, and the award cannot stand. Even if the Government is chargeable with preventing this use of the streams by Stevens, in doing so it took nothing belonging to Stevens. No absolute right, we hold, was vested in Stevens under the law of South Carolina to discharge industrial wastes into Martin’s Creek or the Seneca River. Utilization of the South Carolina streams is subject to the rights of other riparian owners, enforceable by them or by the Pollution Authority. The latter’s control was exerted here in the reclassification and the legality of this action is not disputed. Indeed, the State’s power was acknowledged by Stevens in seeking and obtaining initially the Class C permit and later the Class A permit. The fundamental and determinative question in this control, either at the instance of another proprietor or of the State, is the reasonableness of the use. The State statute outlaws the discharge into streams of anything that may “cause or tend to cause a condition of pollution in contravention of the standards adopted by the Authority”. § 70-116. Control of this kind by the State is unassailable. Texas Co. v. Montgomery, 73 F.Supp. 527, 534 (E.D.La.1947) (3-judge court) aff’d 332 U.S. 827, 68 S.Ct. 209, 92 L.Ed. 402. The common law of South Carolina provides a downstream owner with equivalent civil protection. Thus, even without the creation of the lake, Stevens could not with immunity have continued the objectionable efflux if a lower owner on the Seneca had adapted his riparian proprietorship to recreational purposes, undeniably a reasonable use. The effluence could have been stopped under either the common law or the statute. In Duncan v. Union-Buffalo Mills Co., 110 S.C. 302, 96 S.E. 522, 524 (1917) the following jury instruction was approved : “ ‘Owners of land on the banks of a stream are entitled to the reasonable use of the stream; that they can use the stream for their own purposes to a reasonable extent; that while it is true that a stream must not be polluted, still this does not mean that nothing can be put in the stream; but that nothing can be put therein that will deprive the landowners below to the reasonable use of the stream.’ ” (Accent added.) No contrary pronouncement of the South Carolina common law was uttered in Omelvany v. Jaggers, 2 Hill (SC) 634 (1835). The case is cited by Stevens as support for its contention that the Government cannot destroy, without indemnification, a use by Stevens which was reasonable under the natural conditions of the river. Omelvany simply held that a lower owner could not by a dam or other construction “throw back” the water so as to interfere with the flow past the upper riparian owner’s property. Also cited, White v. Whitney Mfg. Co., 60 S.C. 254, 38 S.E. 456 (1901) is to the same effect. But that of course is not Stevens’ complaint. Its grievance is that it can no longer put refuse into Martin’s Creek or the Seneca. Plainly this is not a problem of flow, but rather of what ingredients can be put in the water. Stevens’ difficulty is the prohibition against pouring a deleterious additive into the creek or river. We see no merit in this plaint. , Throughout it must be remembered that Stevens does not complain that it has been robbed of the natural drainage of surface waters from its land. Hence we are not called upon to say whether under the law of South Carolina such drainage is an appurtenant right. Cf. United States v. Kansas City Life Ins. Co., 339 U.S. 799, 810, 814, 70 S.Ct. 885, 94 L.Ed. 1277 (1950) and dissenting opinion. Nor has Stevens’ access to the river for riddance of its wastes been blocked, notwithstanding the taking of the area between the industrial plant and the river. For our decision, it may be assumed that before the condemnation Stevens’ ownership extended to the center of Seneca’s bed, thus conceding arguendo Stevens’ contention that the river was nonnavigable. The bar interposed by the Water Pollution Authority to Stevens’ dumping of wastes into the river was, obviously, undertaken as a health measure well within the State’s police power. The United States had not protested the infusion of the wastes into the reservoir. The objection emanated from the Authority. Thus, if Stevens deemed the restriction unreasonable, its remedy was to apply to the Authority for relief and if unsuccessful there, to pursue the further corrective steps provided by the statute. Certainly the ban created no obligation upon the United States to make good the loss. Our decision to disallow compensation is not at odds with Town of Clarksville, Virginia v. United States, 198 F.2d 238 (4 Cir. 1952), cert. den. 344 U.S. 927, 73 S.Ct. 495, 97 L.Ed. 714 (1953). The United States by damming the adjacent nonnavigable river flooded almost half of the Town, the condemnee, and rendered its sewerage system useless. As compensation for what it destroyed the Government agreed to provide, or pay for, an equivalent substitute system. It also agreed to include therewith a sewerage treatment plant, pumping or lift stations and the cost of the latter’s operation should the condemnation court hold that such accessories were indispensable to constitute the new system a just equivalent of the old. The State Water Control Board had ruled that the new system could not empty into the river unless a treatment plant was installed, although none had been included previously.. We held that the District Court erred in not requiring the Government to provide these additional facilities, because they were thought necessary to fulfill the Government’s pledge that the new should be equal of the old system. But here the Government, to repeat, took no part of Stevens’ disposal plant and conceded no obligation whatsoever to the condemnee, as it did in Clarksville. The only question there was the amount of compensation; here liability for any amount at all is the issue. Stevens had no vested right to contaminate the watercourses. It was creating the wastes as a part of a private operation and the elimination of the pollution was Stevens’ responsibility. The cost of a satisfactory alternate method must be borne by Stevens, and cannot be shifted to the United States. The noncompensability of Stevens’ claim has thus far been pitched upon State laws, under which continued indulgence to defile a stream has been found not to be a legal right. Recently, Congress by Act of October 2, 1965, P.L. 89-234, 79 Stat. 903, 33 U.S.C. § 466 et seq., has undertaken to protect not only interstate waters but also the tributaries thereof from pollution. While we do not place our decision on Federal statutes, we mention them to show that National policy buttresses South Carolina’s. The Duke Case Duke owned 954.2 acres of land along the Seneca, including 106.40 acres in its bed. The United States condemned 531.1 of them, excluding any portion of the bed but including 27.4 acres occupied by Duke’s dam and reservoir. These units, plus a powerhouse, substation and transmission lines, together constituting the hydroelectric facilities, were entirely obliterated by the lake. Built in 1898 and located at Portman Shoals, they were 14 miles below Stevens’ plant, 8 miles above the Savannah and 13 miles up from the Hartwell Dam. The Commission’s report, approved by the Court, allotted Duke $37,775 for the 503.7 acres exclusive of the dam and reservoir. Duke was also awarded $500,-000 as the fair value of the hydroelectric facilities. The Government does not contest the computation or fairness of these figures, if as a matter of law the components are recoverable. The controversial point posed by the Government’s brief is the allowance of any amount whatsoever for the productivity of the hydroelectric power, the predominant factor in the $500,000 judgment. Here again the issue raised is the navigability of the Seneca. Duke asserts that its dam and reservoir are situated in nonnavigable waters, and that the Constitutional power of the United States to regulate navigation does not empower the Government, without making compensation, to take or destroy property not situate within navigable waters. The United States’ opposing argument, aside from its basic assertion of the navigability of the entire Seneca, is two-fold. First, it is that the Commission and the District Court did not find the Seneca waters to be nonnavigable below Portman Shoals; that Duke’s dam, at the foot of the Shoals, uses this section of the Seneca as a tail race; and that this dam is therefore within the Government’s control over navigable waters. Secondly, the United States says that in any event the Seneca River is subject to the control of the Government as a tributary, though nonnavigable, of the navigable Savannah, and that the United States took nothing from Duke when it abolished Duke’s continued adaptation of the Seneca waters for the generation of electricity. We accept the latter postulate, and so have no reason to consider the scope or correctness of the findings below in regard to the Seneca’s navigability. The Commerce Clause in its application to the waterways of the United States is not limited to the control of navigation. In United States v. Appalachian Power Co., supra, 311 U.S. 377, 426, 61 S.Ct. 291, 308 (1940), the comprehensiveness of the Constitutional provision was stated: “In our view, it cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.” The Acts authorizing the United States to expropriate the property and other rights included in these cases are predicated on this extensive power of control. That tributaries of navigable waters are within its comprehension is no longer debatable. This is made quite plain in State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941). There the Constitutional prerogatives of the Government in respect to the control of inland waters in the advancement of interstate commerce are exhaustively examined. The enormous expansiveness of this power is described. Congress had authorized the construction in Oklahoma of a dam across the Red River, a nonnavigable tributary of the Mississippi River. The enterprise was held well within the power of the Federal Government to provide flood control and regulate navigation. The Court demonstrated the close relationship of the two, and made these pertinent observations: “It is true that ‘no part of the [Red] river within Oklahoma is navigable.’ ” (p. 523, 61 S.Ct. p. 1058) ****** “ * * * it is clear that Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.” (p. 523, 61 S.Ct. p. 1058) ****** “Congress was not unmindful of the effect of this project on the navigable capacity of the river.” (p. 523, S.Ct. p. 1058) ***** “There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries.” (p. 525, 61 S.Ct. p. 1059) ****** “And we now add that the power of flood control extends to the tributaries of navigable streams. For, just as control over the non-navi gable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in part in flood control on its tributaries.” (p. 525-526, 61 S.Ct. pp. 1059-1060) The pertinency of these words presently is underscored when we bear in mind that the Seneca and the Savannah are not different rivers. Although bearing different names they constitute a single waterway. Consequently, as just quoted, the Federal power of control over the Seneca may be justified as control over a nonnavigable stretch of the navigable Savannah. Some analogy may also be found in the facts of United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913) where the Government was accorded paramount rights in the non-navigable falls and rapids in the St. Marys River, the outlet of Lake Superi- or’s waters. Furthermore, State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., supra, 313 U.S. 508, 61 S.Ct. 1050, held that the Government’s determination that a particular project is needed to properly regulate navigation is conclusive. Thus we are not at liberty to inquire whether the Hartwell Dam and Reservoir was an appropriate exercise of Federal jurisdiction. Here we are dealing only with the flow of the Seneca. Wherever the Government has submerged or otherwise deprived the proprietor of rights above the river’s ordinary high-water mark, uncontested recompense has been made. The attack on the Duke award is concentrated upon its allowance for water power. This component is not compensable, we have said, and United States v. Grand River Dam Authority, 363 U.S. 229, 233, 80 S.Ct. 1134, 1137, 4 L.Ed.2d 1186 (1960), sustained this proposition in these words: “When the United States appropriates the flow either of a navigable or a nonnavigable stream pursuant to its superior power under the Commerce Clause, it is exercising established prerogatives and is beholden to no one." (Accent added.) This had in effect been the pronouncement of the Court in United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945). Undebatably, United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917), in the Kelly appeal No. 718, relied upon by Duke is a holding contrary to our conclusion here. There on the construction by the Government of a dam across a navigable river, water was backed up in an unnavigable tributary, thus raising its level above the ordinary high water mark of the tributary. The result was to destroy the power of a mill dam, essential to the value of the mill, by leaving only a one foot drop over the crest of the mill dam. The owner was allowed compensation. However, Cress on the Kelly appeal has been so severely pared as a precedent on the present point that we do not feel justified in allowing it to prevail here. Its scope was sharply straitened by United States v. Willow River Power Co., supra, 324 U.S. 499, 506, 65 S.Ct. 761; the diminution was noted in the dissent. Finally, Grand River, supra, 363 U.S. 229, 80 S.Ct. 1134, squarely refutes and rebukes the thought that Cress warrants recovery by Duke. The contention of Duke that Congress by statute, 33 U.S.C. § 701c-1, has directed payment to Duke for its facilities at Portman Shoals, we find without merit. The judgments awarding compensation for the contested items in these cases will be reversed, and the actions remanded to the District Court for the entry of appropriate orders denying the present claims of Stevens and Duke. Reversed and remanded. . Act of December 22, 1944, P.L. 534, 78th Congress, 58 Stat. 887; Act of May 17, 1950, P.L. 516, 81st Congress, 64 Stat. 163; Act of September 10, 1959, P.L. 86-254, 73 Stat. 491. . Code of Laws of South Carolina, 1962, § 70-101 et seq. . § 70-131. . See citations in footnote 1, supra. . Authorities excluding flow in a navigable stream as an element of valuation in the condemnation of riparian properties are not cited because the questions in the instant cases are raised with specific ref- , erence to nonnavigable waters. For ex-ampies of such other authorities, see United States v. Virginia Electric & Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961); United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956).

United States v. Republic Steel Corp.

Mr. Justice Douglas delivered the opinion of the Court. This is a suit by the United States to enjoin respondent companies from depositing industrial solids in the Calumet River (which flows out of Lake Michigan and connects eventually with the Mississippi) without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits and to order and direct them to restore the depth of the channel to 21 feet by removing portions of existing deposits. The District Court found that the Calumet was used by vessels requiring a 21-foot draft, and that that depth has been maintained by the Corps of Engineers. Respondents, who operate mills on the banks of the river for the production of iron and related products, use large quantities of the water from the river, returning it through numerous sewers. The processes they use create industrial waste containing various solids. A substantial quantity of these solids is recovered in settling basins but, according to the findings, many fine particles are discharged into the river and they flocculate into larger units and are deposited in the river, bottom. Soundings show a progressive decrease in the depth of the river in the vicinity of respondents’ mills. But respondents have refused, since 1951, the demand of the Corps of Engineers that they dredge that portion of the river. The shoaling conditions being created in the vicinity of these plants were found by the District Court to be created by the waste discharged from the mills of respondents. This shoaling was found to have reduced the depth of the channel to 17 feet in some places and to 12 feet in others. The District Court made findings which credited respondents with 81.5% of the waste deposited in the channel, and it allocated that in various proportions among the three respondents. See 155 F. Supp. 442. The Court of Appeals did not review the sufficiency of evidence. It dealt only with questions of law and directed that the complaint be dismissed. 264 F. 2d 289. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the questions tendered. 359 U. S. 1010. Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U. S. C. § 403, provides in part: “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; . . .” (Italics added.) The section goes on to outlaw various structures “in” any navigable waters except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that “it shall not be lawful to excavate or fill, or in any manner to alter or modify the . . . capacity of . . . the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” A criminal penalty is added by § 12; and § 12 further provides that the United States may sue to have “any structures or parts of structures erected” in violation of the Act removed. Section 17 directs the Department of Justice to “conduct the legal proceedings necessary to enforce” the provisions of the Act, including § 10. Section 13 forbids the discharge of “any refuse matter of any kind or description whatever other than that flow.-ing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States”; but § 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him. Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an “obstruction” within the meaning of § 10 of the Act and are discharges not exempt under § 13. We also conclude that the District Court was authorized to grant the relief. The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, where the Court held “there is no common law of the United States” which prohibits “obstructions” in our navigable rivers. Congress acted promptly, forbidding by § 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, “the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity” of any waters of the United States. The 1899 Act followed a report to Congress by the Secretary of War, which at the direction of Congress, 29 Stat. 234, contained a compilation and revision of existing laws relating to navigable waters. The 1899 Act was said to contain “no essential changes in the existing law.” Certainly so far as outlawry of any “obstructions” in navigable rivers is concerned there was no change relevant to our present problem. It is argued that “obstruction” means some kind of structure. The design of § 10 should be enough to refute that argument, since the ban of “any obstruction,” unless approved by Congress, appears in the first part of § 10, followed by a semicolon and another provision which bans various kinds of structures unless authorized by the Secretary of the Army. The reach of § 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected “in” any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify “the course, location, condition, or capacity of” a navigable river be made unless “the work” has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits “the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity” of such rivers. We can only conclude that Congress planned to ban any type of “obstruction,” not merely those specifically made subject to approval by the Secretary of the Army. It seems, moreover, that the first clause being specifically aimed at “navigable capacity” serves an end that may at times be broader than those served by the other clauses. Some structures mentioned in the second clause may only deter movements in commerce, falling short of adversely affecting navigable capacity. And navigable capacity of a waterway may conceivably be affected by means other than the excavations and fills mentioned in the third clause. We would need to strain hard to conclude that the only obstructions banned by § 10 are those enumerated in the second and third clauses. In short, the first clause is aimed at protecting “navigable capacity,” though it is adversely affected in ways other than those specified in the other clauses. There is an argument that § 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words “any obstruction” in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Irrigation Co., 174 U. S. 690, 708, decided not long after the 1890 Act became effective, gave the concept of “obstruction,” as used in § 10, a broad sweep: “It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition.” This broad construction given § 10 of the 1890 Act was carried over to § 10 of the 1899 Act in Sanitary District v. United States, 266 U. S. 405, 429, the Court citing United States v. Rio Grande Irrigation Co., supra, with approval and saying that § 10 of the 1899 Act was “a broad expression of policy in unmistakable terms, advancing upon” § 10 of the 1890 Act. The decision in Sanitary District v. United States, supra, seems to us to be decisive. There the Court affirmed a decree enjoining the diversion of water from Lake Michigan through this same river. Mr. Justice Holmes, writing for the Court, did not read § 10 narrowly but in the spirit in which Congress moved to fill the gap created by Willamette Iron Bridge Co. v. Hatch, supra. That which affects the water level may, he said, amount to an “obstruction” within the meaning of § 10: “Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case.” Sanitary District v. United States, supra, 426. “There is neither reason nor opportunity for a construction that would not cover the present case. As now applied it concerns a change in the condition of the Lakes and the Chicago River, admitted to be navigable, and, if that be necessary, an obstruction to their navigable capacity . . . .” Id., at 429. It is said that that case is distinguishable because it involved the erections of “structures,” prohibited by the second clause of § 10. The “structures” erected, however, were not “in” navigable waters. The Sanitary District had reversed the flow of the Chicago River, “formerly a little stream flowing into Lake Michigan,” 266 U. S., at 424, and used it as a sluiceway to draw down the waters of the Great Lakes to a dangerous degree. Moreover, the Court did not rely on the second clause of § 10 but on the first and the third. Id., at 428. The decree in that case did not run against any “structure”; it merely enjoined the diversion of water from Lake Michigan in excess of 250,000 cubic feet per minute. That broad construction of § 10 was reaffirmed in Wisconsin v. Illinois, 278 U. S. 367, 414, another case involving the reduction of the water level of the Great Lakes by means of withdrawals through the Chicago River. And the Court, speaking through Chief Justice Taft (id., at 406, 414, 417), made clear that it adhered to what Mr. Justice Holmes had earlier said, “This withdrawal is prohibited by Congress, except so far as it may be authorized by the Secretary of War.” Satnitary District v. United States, supra, at 429. The teaching of those cases is that the term “obstruction” as used in § 10 is broad enough to include diminution of the navigable capacity of a waterway by means not included in the second or third clauses. In the Sanitary District case it was caused by lowering the water level. Here it is caused by clogging the channel with deposits of inorganic solids. Each affected the navigable “capacity” of the river. The concept of “obstruction” which was broad enough to include the former seems to us plainly adequate to include the latter. As noted, § 13 bans the discharge in any navigable water of “any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.” The materials carried here are “industrial solids,” as the District Court found. The particles creating the present obstruction were in suspension, not in solution. Articles in suspension, such as organic matter in sewage, may undergo chemical change. Others settle out. All matter in suspension is not saved by the exception clause in § 13. Refuse flowing from “sewers” in a “liquid state” means to us “sewage.” Any doubts are resolved by a consistent administrative construction which refused to give immunity to industrial wastes resulting in the deposit of solids in the very river in question. The fact that discharges from streets and sewers may contain some articles in suspension that settle out and potentially impair navigability is no reason for us to enlarge the group to include these industrial discharges. We follow the line Congress has drawn and cannot accept the invitation to broaden the exception in § 13 because other matters “in a liquid state” might logically have been treated as favorably as sewage is treated. We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U. S. 336, 342, that “A river is more than an amenity, it is a treasure,” forbids a narrow, cramped reading either of § 13 or of § 10. The Court of Appeals concluded that even if violations were shown, no relief by injunction is permitted. Yet § 17 provides, as we have seen, that “the Department of Justice shall conduct the legal proceedings necessary to enforce” the provisions of the Act, including § 10. It is true that § 12 in specifically providing for relief by injunction refers only to the removal of “structures” erected in violation of the Act (see United States v. Bigan, 274 F. 2d 729), while § 10 of the 1890 Act provided for the enjoining of any “obstruction.” Here again Sanitary District v. United States, supra, is answer enough. It was argued in that case that relief by injunction was restricted to removal of “structures.” See 266 U. S., at 408. But the Court replied, “The Attorney General by virtue of his office may bring this proceeding and no statute is necessary to authorize the suit.” Id., at 426. The authority cited was United States v. San Jacinto Tin Co., 125 U. S. 273, where a suit was brought by the Attorney General to set aside a fraudulent patent to public lands. The Court held that the Attorney General could bring suit, even though Congress had not given specific authority. The test was whether the United States had an interest to protect or defend. Section 10 of the present Act defines the interest of the United States which the injunction serves. Protection of the water level of the Great Lakes through injunctive relief, Sanitary District v. United States, supra, is precedent enough for ordering that the navigable capacity of the Calumet River be restored. The void which was left by Willamette Iron Bridge Co. v. Hatch, supra, need not be filled by detailed codes which provide for every contingency. Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation. This is for us the meaning of Sanitary District v. United States, supra, on this procedural point. Since the Court of Appeals dealt only with these questions of law and not with subsidiary questions raised by the appeal, we remand the case to it for proceedings in conformity with this opinion. Reversed. Memorandum of A House Report contains similar animadversions. H. R. Rep. No. 1345, 83d Cong., 2d Sess., p. 10. Section 10 provides in full: “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and if shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” H. R. Doc. No. 293, 54th Cong., 2d Sess. 32 Cong. Rec., Pt. 3, p. 2923, which reports the statement by the House Conferees. For the discussion in the Senate see 32 Cong. Rec. 2296-2298. We have a rather precise history of administrative construction of the 1899 Act as it applies to the deposit of solids in the Calumet River by mills located on it. The Army Engineers, beginning in 1909, warned a steel company of the accumulation of solids from industrial wastes being poured into the Calumet. In 1918, 1920, 1924, 1927, 1928, 1931, and 1937 the District Engineer required these deposits to be removed. An improvement in the Calumet was authorized by the Act of August 30, 1935, 49 Stat. 1028, 1036, on the basis of a report from the Army Engineers. See H. R. Doc. No. 494, 72d Cong., 2d Sess. The costs were computed on the basis that shoals created by the deposit of solids would be removed by the company creating them. The report states, at p. 24, “It is assumed, in this estimate, that the shoal adjacent to the outer bulkhead of the Illinois Steel Co. will be removed by that company to the depth of 21 feet originally provided by the United States.” This long-standing administrative construction, while not conclusive of course, is entitled to “great weight” even though it arose out of cases “settled by consent rather than in litigation.” Federal Trade Comm’n v. Mandel Brothers, Inc., 359 U. S. 385, 391. For references in public documents to this administrative construction see H. R. Doc. No. 237, 63d Cong., 1st Sess., pp. 77, 160; S. Rep. No. 66, 68th Cong., 1st Sess., p. 2; H. R. Doc. No. 494, 72d Cong., 2d Sess., pp. 24, 34; S. Rep. No. 2225, 74th Cong., 2d Sess., p. 2; Hearings, Civil Functions, Department of the Army Appropriations for 1955, Subcommittee of House Committee on Appropriations, 83d Cong., 2d Sess., Pt. 1, pp. 695-696; H. R. Rep. No. 1345, 83d Cong., 2d Sess., p. 10. H. R. Doc. No. 417, 69th Cong., 1st Sess., p. 9, states: “In some instances the organic solid matter in sewage and wastes causes temporary shoaling in the vicinity of the point of discharge, but in most cases of this kind nature eventually decomposes this organic matter and rectifies the condition. In a few instances, where large quantities of sewage are discharged into sluggish and restricted waters, overpollution results and the oxygen content remains insufficient to enable nature to break up the solids. In such cases permanent shoaling in the vicinity of the point of discharge results and dredging must be resorted to. As a rule such dredging is well attended to by municipal authorities.” The “main ground” advanced was the interest of the United States in removing obstructions to commerce. 266 U. S., at 426. Another ground was a treaty with Great Britain. Id., at 425-426. But these were alternative grounds, the treaty rights being treated as lesser or subordinate interests. Id., at 426. See Comment, Substantive and Remedial Problems in Preventing Interferences with Navigation: The Republic Steel Case, 59 Col. L. Rev. 1065, 1079.

United States v. Republic Steel Corp.

Mr. Justice Frankfurter, dissenting. In the absence of comprehensive legislation by Congress dealing with the matter, I would go a long way to sustain the power of the United States, as parens patriae, to enjoin a nuisance that seriously obstructs navigation. But that road to judicial relief in this case is, in light of Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, barred by the Rivers and Harbors Act of 1899. For the reasons set forth by my Brother Harlan, the structure and history of that Act, reflected by the very particularities of its provisions, make it unavailable for the situation now before the Court.

United States v. Republic Steel Corp.

Mr. Justice Harlan, with whom Mr. Justice Frankfurter, Mr. Justice Whittaker and Mr. Justice Stewart join, dissenting. In my opinion this decision cannot be reconciled with the terms of the Rivers and Harbors Act of 1899, apart from which the Court, as I understand its opinion, does not suggest the United States may prevail in this case. Far from presenting the clear and simple statutory scheme depicted by the Court, the provisions of the governing statute are complex and their legislative history tortuous. My disagreement with the Court rests on four grounds: (1) that the term “any obstruction” in § 10 of the Act was not used at large, so to speak, but refers only to the particular kinds of obstructions specifically enumerated in the Act; (2) that the discharge of this liquid matter from the respondents’ mills does not fall within any of the Act’s specific proscriptions; (3) that in any event injunc-tive relief was not authorized; and (4) that Sanitary District v. United States, 266 U. S. 405, does not militate against any of these conclusions. Five sections of the Act are relevant to this case: (1) Section 9, 33 U. S. C. § 401, makes it unlawful to construct any bridge, dam, dike, or causeway without the consent of Congress and the approval of the Chief of Engineers and the Secretary of War. (2) Section 10, 33 U. S. C. § 403, contains three clauses: Clause 1 provides “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited.” Clause 2 makes it unlawful to build any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structure without complying with certain conditions. Clause 8 makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of . . . the channel of any navigable water” without the authorization of the Secretary of War. (3) Section 12, 33 U. S. C. § 406, provides that violation of § 9, § 10, or § 11 (the last not being material here) constitutes a misdemeanor, and that removal of any “structures or parts of structures” erected in violation of said sections may be enforced by injunction. (4) Section 13, 33 U. S. C. § 407, makes it unlawful to place in navigable waters any refuse of any kind other than “that flowing from streets and sewers and passing therefrom in a liquid state . ..." (5) Section 16, 33 U. S. C. § 411, makes violation of § 13, § 14, or § 15 (the latter two not being involved here) a misdemeanor. No injunctive relief is provided for. The Court holds that respondents have violated §§10 and 13, and that injunctive relief is authorized under the present circumstances. A closer examination of the Act and its history than that undertaken in the Court’s opinion, in my view, refutes both conclusions. I. The Court relies primarily on the first clause of § 10, which provides: "That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited . . . .” If that clause stood in isolation, it might bear the broad meaning which the Court now attributes to it. However, it is but one part of an involved and comprehensive statute which has emerged from a long legislative course. The bare words of the clause cannot be considered apart from that context. Two circumstances apparent on the face of the statute immediately raise a doubt whether the term “any obstruction” can be taken in its fullest literal sense. First, the clause is surrounded in the statute by an exhaustive enumeration of particular types of obstructions and cognate activities, that is, “bridge, dam, dike, or causeway” (§ 9); “wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures” (§ 10, cl. 2); “excavate,” “fill,” “alter,” “modify” (§10, cl. 3); and “any refuse matter of any kind” (§ 13). If the “any obstruction” clause were intended to cover a category of obstructions not included within any of the specific enumerations, it is strange that it should be inserted at the beginning of a section which lists several specific obstructions and which is itself both preceded and followed by other sections making similar enumerations. Second, the lawful creation of the structural obstructions mentioned in § 9 requires the approval of Congress, while those listed in clauses 2 and 3 of § 10 and in § 13 can be lawfully accomplished with only the authorization of the Secretary of War. Yet clause 1 of § 10 says that “any obstruction” must be affirmatively authorized by Congress. If the clause is taken in its literal sense, the condition of congressional approval therein prescribed is difficult to square with the condition of approval by the Secretary of War prescribed as to many of the obstructions specifically enumerated. Because of the doubts raised by these considerations, it becomes necessary to explore the derivation of the 1899 Act. When this is done, I believe it will be found that “any obstruction” will not bear the broad meaning given it by the Court, but that it must be taken as embracing only the particular obstructions specified in the statute. The provisions of the 1899 Act dealing with obstructions derive ultimately from a proposal made by the Chief of Engineers and transmitted to Congress by the Secretary of War in 1877. A bill based on this recommendation was three times introduced in Congress, and came to be known as the Dolph bill. It was reported favorably all three times, and was passed by the Senate twice. It enumerated the proscribed obstructions in terms virtually identical to those contained in the 1899 Act, but did not' contain the “any obstruction” clause found in % 10 of that Act. After the Senate had for the second time passed the Dolph bill but before the House had acted on it, the annual rivers and harbors appropriation bill, which was to become the Rivers and Harbors Act of 1890, came up for consideration on the floor of Congress. The bill already contained a set of provisions dealing with the power of the Secretary of War to order the alteration or removal of bridges which obstructed navigation. During the Senate debate on those provisions, Senator Edmunds of Vermont offered as an amendment an additional section which provided as follows: “Every obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction is hereby prohibited. . . . Every person and every corporation which shall be guilty of creating or continuing any such obstruction in this section mentioned shall be deemed guilty of a misdemeanor .... The creating or continuing of any obstruction in this section mentioned may be prevented by the injunction of any circuit court . . . Subsequently, the Dolph bill was offered in to to as a further amendment. The Senate accepted the Edmunds amendment and passed the appropriation bill as so amended, but it refused to add the Dolph bill. In conference, however, it was decided to accept both by combining them. The penal section of the Dolph bill, which followed all of the sections enumerating particular obstructions, had provided simply that every offender against any provision of the Act should forfeit a $250 penalty and be liable for actual damages. The conferees deleted that entire section and replaced it with an adaptation of the Edmunds amendment. The latter, which was enacted into law as § 10 of the Rivers and Harbors Act of 1890, read as follows: “That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. . . . Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor . . . [T]he creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any circuit court . . . Thus, the Edmunds amendment, in which the “any obstruction” clause had first appeared, and which carried both penal and injunctive sanctions, was substituted for a section which theretofore had contained purely penal provisions and had followed an exhaustive enumeration of those particular obstructions to which the penalties applied. It is to be further noted that while the original Edmunds amendment had made its remedial provisions applicable to any person creating “any such obstruction in this section mentioned,” Congress, in incorporating the Edmunds amendment into the Dolph bill, made such provisions applicable to any person creating “any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act . . . (Emphasis added.) In both instances, the word “such” clearly referred back to the initial sentence of the section prohibiting “any obstruction,” the only place in either bill where that term appears. Whatever the meaning of “any obstruction” may have been in the original Edmunds amendment, Congress made it clear in § 10 of the 1890 Act that “such” obstruction meant those obstructions “in this act mentioned.” To consider “any obstruction” in that section as embracing something more than the kinds of obstructions specifically enumerated in the Act would lead to the conclusion that the remedial provisions of § 10 did not cover all the obstructions proscribed by the first sentence of the section. Definition of an additional set of offenders — those “who shall violate the provisions of the last four preceding sections of this act” — was made necessary by the fact that the Dolph bill contained prohibitions of several practices which might not amount to obstructions. From this background, I think the reasonable conclusion to be drawn is that “any obstruction” in § 10 of the 1890 Act referred only to those obstructions enumerated in the preceding sections of the Act, and not to obstruction in the catchall sense. The Rivers and Harbors Act of 1899, with which the present case is directly concerned, came about as a result of Congress’ direction to the Secretary of War in 1896 to prepare a compilation and revision of existing general laws relating to navigable waters. The Secretary’s report purported only to codify existing law with no substantive changes, and Senator Frye, the Chairman of the Commerce Committee, and the conferees on the bill as ultimately passed, confirmed that the legislation was to have no new substantive effect. This indeed is recognized by the Court. As part of the codification, Congress took the first sentence of § 10 of the 1890 Act and inserted it as the first sentence of one of the provisions enumerating several specific obstructions which then became § 10 of the 1899 Act. There is nothing to indicate that in so doing, Congress departed from its announced intention to leave the substance of the Act unchanged. Thus the “any obstruction” language of the first sentence of new § 10 was, as it had been in the old § 10, simply declaratory of all the obstructions specifically proscribed throughout the Act, whether of a structural or nonstructural nature. II. I cannot agree that respondents’ practices are prohibited by any of the specific provisions of the Act of which § 10, cl. 1, is declaratory. The Court seems to rely in part on § 10, cl. 3, on the theory that the discharge from respondents’ plants “alter or modify the . . . capacity” of the Calumet River. But again, this provision must be read in context. It is evident that in §§ 9 and 10 Congress was dealing with obstructions which are constructed, in a conventional sense, reserving for § 13 the treatment of discharges of refuse which may eventually create obstructions. The structure of § 10, cl. 3, itself confirms this. The basic prohibition of the clause relates to excavations and fills, both of which represent construction in the ordinary sense of that term. The immediately following phrase, “or in any manner to alter or modify the . . . capacity ... of the channel of any navigable water,” must be read as referring to the same general class of things as the basic prohibition of the clause. If there could be any doubt about the clause’s frame of reference, it is dispelled by the concluding words: “unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.” (Emphasis added.) Finally, I do not believe that § 13 can be construed to proscribe respondents’ practices. The term “any refuse matter of any kind or description whatever” undoubtedly embraces the matter discharged from respondents’ mills. However, § 13 expressly exempts refuse “flowing from streets and sewers and passing therefrom in a liquid state.” The Court says that materials in “a liquid state” must mean materials which do not settle out. But it is difficult to believe that a nineteenth century Congress, in carving out an exception for liquid sewage, meant to establish an absolute standard of purity which not only bore no relation to the prevailing practice of sewage disposal at the time, but also is impossible to achieve even under present-day technology. It is conceded that despite respondents’ best efforts to separate out industrial solids, a few minute particles remain. These comprise a small fraction of 1% of the total solution and the most damaging of them are too small to be seen under a microscope. One need not be an expert to say that the refuse discharged by an ordinary sewer pipe today, and a fortiori 60 years ago, undoubtedly contains far more solid matter in suspension than respondents’ discharges. And the statute affords no basis for differentiating, as the Court suggests, between industrial and domestic refuse. III. Even if a violation of § 10 or § 13 could be established, injunctive relief would not be authorized. The Court seems to avoid saying that the statute provides for injunc-tive relief under the present circumstances, but holds that the propriety of such relief can somehow be “inferred” from the statute. However, where, as in this statute, Congress has provided a detailed and limited scheme of remedies, it seems to me the Court is precluded from drawing on any source outside the Act. One need go no farther than the plain words of § 16, which prescribes the penalties for violation of § 13, to see that an injunction against violation of the latter section is not authorized. As to violations of § 10, section 12 provides only that “the removal of any structures or parts of structures erected in violation of” § 9, § 10, or §11- may be enforced by injunction. (Emphasis added.) The Government relies heavily on the fact that the comparable provision in § 10 of the 1890 Act authorized injunctive relief against “any unlawful obstruction.” A closer examination of that section, however, undermines the Government’s conclusion. It authorized criminal penalties in two instances: First, for the creation of any unlawful obstruction mentioned in the Act, and second, for violation of the preceding four sections. By contrast, the section authorized injunctive relief only in the first instance — the creation of any unlawful obstruction “in this act mentioned.” To me this indicates that a deliberate distinction was' drawn betwéen those prohibitions relating to obstructions created by construction in the ordinary sense and those relating to other types of interferences with navigation, including the discharge of refuse. In the 1899 Act, the provisions relating to the erection of particular types of obstructions were gathered together in §§ 9, 10, and 11 and subjected to the penalties of § 12. The criminal penalties of § 12 are applicable to any violation of the preceding three sections (and any rule promulgated by the Secretary of the Army under § 14), while injunctive relief is limited to “structures or parts of structures,” thus reflecting the same distinction made in the 1890 Act. The provisions relating to violations not involving the erection of any structures, such as discharge of refuse, unauthorized use of government navigational installations, and careless sinking of vessels, were gathered together in §§ 13, 14, and 15 and subjected to the penalties of § 16. The last-mentioned section is conspicuously lacking in any reference to injunctive relief, thus again reflecting the distinction established by the 1890 Act. Since the deposits attributable to respondents’ mills are not “structures” within the meaning of § 12, their removal, as I read the Act, cannot be enforced by injunction. The Court seems to say that § 17, which directs the Department of Justice to conduct the legal proceedings necessary to enforce the Act, itself authorizes injunctive relief. But it would have been futile for Congress to prescribe and carefully limit the relief available for violation of the Act if § 17 were meant to authorize a disregard of those limitations. Section 17, in my view, does no more than allocate within the Government the responsibility for the .invocation of those remedies already authorized by Congress. IV. The case of Sanitary District v. United States, supra, is not, in my opinion, the “decisive” authority which the Court finds it to be, either as to the question whether a violation has taken place or as to whether injunctive relief would be authorized under the present circumstances, given a violation of the Act. The United States in that case had originally sought an injunction against the construction of the Calumet-Sag channel and later against the diversion thereby of water from Lake Michigan in excess of the amount authorized by the Secretary of War. There is no doubt that a substantive violation of the Act was made out under §§ 9 and 10, since the complained-of diversion and consequent alteration in the navigable capacity of the Great Lakes had been brought about by the excavation of a channel and the construction of pumping stations, intercepting sewers, movable dams, and navigational locks. By contrast, respondents in the present case have erected no structures which could give rise to either a violation of the Act or a right to injunctive relief. To the extent that Sanitary District relied on the inherent power of the United States, apart from the statute, it is wide of the mark in this situation. The Court here seems to concede that the Sanitary case is no authority for inferring a substantive cause of action arising from the constitutional power of the United States over navigable waters. Indeed, no other conclusion could well be reached in view of the holding in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, that “there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers,” and of the opinion in Wisconsin v. Illinois, 278 U. S. 367, 414, which said of the Sanitary case that “[t]he decision there reached and the decree entered can not be sustained, except on the theory that the Court decided . . . that Congress had exercised the power to prevent injury to the navigability of Lake Michigan . . . .” The Court nevertheless seems to find in the Sanitary case an authorization to infer that the United States has a right to injunctive relief, despite the statute’s failure to provide for it. Whatever the validity of that proposition may have been in the context of Sanitary, it can have no applicability here. For in the former case, the effect of the complained-of practices was to lower the level of the entire Great Lakes system. The Government there argued that a right to injunctive relief could be inferred because of the repercussions of the State’s action beyond its own borders, and the Court expressly relied upon the “sovereign interest” of the United States in all the Great Lakes and upon a treaty with Great Britain touching the use of Canadian boundary waters. In the present case, the waters affected consist of a few miles of the Calumet River lying wholly within the State of Illinois, and no treaty or international obligation is involved. What has happened here is clear. In order to reach what it considers a just result the Court, in the name of “charitably” construing the Act, has felt justified in reading into the statute things that actually are not there. However appealing the attempt to make this old piece of legislation fit modern-day conditions may be, such a course is not a permissible one for a court of law, whose function it is to take a statute as it finds it. The filling of deficiencies in the statute, so that the burdens of maintaining the integrity of our great navigable rivers and harbors may be fairly allocated between those using them and the Government, is a matter for Congress, not for this Court. I would affirm. Section 9 provides in full as follows: “That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of War, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War." Section 10 provides in full as follows: “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inelosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.” Section 11 deals with the power of the Secretary of War to establish harbor lines. Section 12 provides in full as follows: “That every person and every corporation that shall violate any of the provisions of sections nine, ten, and eleven of this Act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said section fourteen, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any circuit court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney-General of the United States.” Section 13 provides in full as follows: “That it shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of War, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.” Section 14 deals with unauthorized use and occupation of federal navigational installations. Section 15 deals with floating obstructions and sunken vessels. Section 16 provides in full as follows: “That every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections thirteen, fourteen, and fifteen of this Act shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction. And any and every master, pilot, and engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with any material specified in section thirteen of this Act to any point or place of deposit or discharge in any harbor or navigable water, elsewhere than within the limits defined and permitted by the Secretary of War, or who shall willfully injure or destroy any work of the United States contemplated in section fourteen of this Act, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section fifteen of this Act, shall be deemed guilty of a violation of this Act, and shall upon conviction be punished as hereinbefore provided in this section, and shall also have his license revoked or suspended for a term to be fixed by the judge before whom tried and convicted. And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections thirteen, fourteen, and fifteen of this Act shall be liable for the pecuniary penalties specified in this section, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.” It is to be noted that if § 10, el. 1, is construed to cover obstructions not within any of the Act’s specific prohibitions, and if the respondents’ practices are held to fall only within § 10, el. 1, then the relief granted by the District Court would not in any event be proper, since its decree required only the approval of the Chief of Engineers of the Department of the Army. 155 F. Supp. 442, 453. The letters are reprinted in S. Rep. No. 224, 50th Cong., 1st Sess. H. R. 2007, 49th Cong., 1st Sess.; S. 27, 50th Cong., 1st Sess.; S. Rep. No. 224, 50th Cong., 1st Sess.; H. R. Rep. No. 2760, 50th Cong., 1st Sess.; S. 88 and H. R. 394, 51st Cong., 1st Sess.; H. R. Rep. No. 1635, 51st Cong., 1st Sess.; H. R. Rep. No. 477, 51st Cong., 1st Sess. 19 Cong. Rec. 2338, 21 Cong. Rec. 1319. 26 Stat. 426. 21 Cong. Rec. 8607. 21 Cong. Rec. 8684. 21 Cong. Rec. 8608, 8691. 21 Cong. Rec. 8685. 21 Cong. Ree. 9558. 26 Stat. 454. The scanty legislative history in connection with the Edmunds amendment does not militate against this view. It was reported from the Senate Judiciary Committee with no explanation three days before the floor consideration of the appropriation bill. See 21 Cong. Rec. 8603. It was first discussed in the context of its effect on the problem of bridges and its relation to the provisions already in the appropriation bill dealing with the Secretary of War’s power over bridges. Id., 8603-8605. Subsequent discussion centered on the meaning of the term “not affirmatively authorized by law.” Id., 8607. Two isolated statements which might be read to attribute a catchall meaning to “any obstruction” are inconclusive. Senator Edmunds referred to an example -which had been brought to the Judiciary Committee’s attention, involving a railroad company which had been tumbling rocks into a navigable river. Ibid. However, it seems that even the specific “refuse” provisions of the Dolph bill would have covered such a practice, and in any event, discussion of the Edmunds amendment out of the context of the Dolph bill can hardly be significant as to the scope of the “any obstruction” clause with relation to the Dolph bill. Senator Carlisle referred to the Edmunds amendment as covering not only bridges, but “all obstructions of every kind whatsoever.” Id., 8689. Apart from the fact that this statement was made prior to the adaptation of the Edmunds amendment for purposes of incorporation into the Dolph bill, Senator Carlisle’s own subsequent proposal to eliminate the Edmunds amendment but to incorporate its provisions for judicial proceedings into the section of the bill dealing with bridges, thereby “harmonizing” the two provisions, ibid., casts grave doubt on whether the Senator himself believed that the Edmunds amendment covered any obstructions other than those created by bridges. The Court asserts that a contrary construction of § 10 of the 1890 Act was established by United States v. Rio Grande Irrigation Co., 174 U. S. 690. The defendant there attempted to build a dam across the Rio Grande River in New Mexico. The building of dams was specifically prohibited by § 7 of the 1890 Act. The defendant, however, contended that the Act did not apply because the Rio Grande was nonnavigable at the point where the dam was to be built. The very passage of which the Court quotes only a part deals simply with that contention: “It is urged that the true construction of this act limits its applicability to obstructions in the navigable portion of a navigable stream, and that as it appears that although the Rio Grande may be navigable for a certain distance above its mouth, it is not navigable in the Territory of New Mexico, this statute has no applicability. The language is general, and must be given full scope. It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition. ... [I]t would be to improperly ignore the scope of this language to limit it to the acts done within the very limits of navigation of a navigable stream.” Id., at 70S. The Court was obviously not remotely concerned with the issue in the present case, i. e., whether the first clause of § 10 covers obstructions not enumerated in the remainder of the Act, since the dam there involved was specifically covered by § 7. 29 Stat. 234. H. R. Doc. No. 293, 54th Cong., 2d Sess. 32 Cong. Rec. 2296-2297, 2923. The identity of the numbers of the respective sections in the new and old Acts is purely coincidental. This construction of the first clause of § 10 seems to have been assumed, though not expressly passed on, by this Court in Wisconsin v. Illinois, 278 U. S. 367, 412-413. The phrase “not affirmatively authorized by law" was changed to “not affirmatively authorized by Congress” simply to overcome the holding of a lower court that authorization by state law was sufficient. United States v. Bellingham Bay Boom Co., 72 F. 585 (C. C. D. Wash. 1896), aff’d, 81 F. 658 (C. C. A. 9th Cir. 1897), rev’d on other grounds, 176 U. S. 211 (1900). See Sanitary District v. United States, 266 U. S. 405, 429; Wisconsin v. Illinois, supra, at 412. Since the prohibition of the clause covers both those obstructions which require congressional approval and those which require only approval of the Secretary of War, the phrase “authorized by Congress” must be read to mean authorized by Congress or the agency designated by it. Wisconsin v. Illinois, supra, at 412-413. While a refuse provision was contained in the Dolph bill which became the 1890 Act, the liquid-sewage exception was first added in 1894, 28 Stat. 363, and carried forward into the 1899 Act. There was no discussion in the reports or debates of the meaning of the exception. In 1900, only 4% of the urban population having sewage facilities provided any treatment at all for domestic and trade wastes. Modern Sewage Disposal (1938), p. 13 (Federation of Sewage Works Assns., Langdon Pearse, editor, Anniversary Book, Lancaster Press, Inc.). Brief for Appellant, pp. 5-14. It is to be noted that the Sanitary-District did not challenge the propriety of injunctive relief in the District Court, and indeed invited it to avoid criminal penalties in testing its right to maintain the channel and divert the complained-of amount of water. 266 U. S., at 431-432; Record on Appeal, Vol. VIII, pp. 129, 151-152; Brief for Appellee, pp. 66-67, 284-285. Brief for Appellee, pp. 123-158.

United States v. Dexter Corp.

HASTIE, Senior Circuit Judge. In this case an information charged that Dexter Corporation, a manufacturer, and appellant North Shore Sanitary District, a municipal corporation, “did cause . . . to be discharged and deposited from out of The Dexter Corporation’s Midland Division plant facility and . . . The North Shore Sanitary District sewer system, refuse matter, to wit: phenolic resin, into Lake Michigan . . .; in violation of Title 33, United States Code, Sections 407 and 411”. Section 407, originally Section 13 of the Rivers and Harbors Act of 1899, declares that “[i]t shall not be lawful to cause . . to be discharged, or deposited either from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water . . ..” Section 411 makes a violation of Section 407 a misdemeanor. Dexter Corporation pleaded nolo con-tendere, was fined $500 and is not before us now. North Shore Sanitary District went to trial before the district court, sitting without a jury. The essential facts were stipulated. North Shore Sanitary District is a municipal corporation of the State of Illinois and, as duly authorized, operates a sanitary sewer system in Lake County. Dexter Corporation’s manufacturing plant connects with and utilizes this municipal system for the discharge of waste and storm water. In its manufacturing operation Dexter uses phenolic resin, a toxic and to some extent corrosive liquid that is lighter than water. During a rainstorm, an employee at the Dexter plant accidentally caused a substantial quantity of phenolic resin to be discharged into the sanitary sewer system where its subsequent course was diverted through a by-pass, which the Sanitary District used at times of heavy rainfall, and thence into Lake Michigan. Under normal conditions the Sanitary District’s processing of sewerage would have prevented the phenolic resin from reaching the lake. But in this case the rainy weather by-pass had been opened and the toxic liquid flowed untreated from the sewer into the lake. There, being lighter than water, it was discovered on the surface. On these facts the district court found the Sanitary District guilty of violating Section 407 and imposed a $500 fine. This appeal followed. We now consider whether the exception stated in Section 407 makes the section’s general prohibitory language inapplicable here. Certainly, the phenolic resin in this case comes within the comprehensive statutory designation of “any refuse matter of any kind or description whatever” discharged from a “manufacturing establishment”. But the statute proceeds to exclude from its coverage refuse matter “flowing from streets and sewers and passing therefrom in a liquid state”. On its face this exclusionary language seems applicable to the effluent in this case. The parties have stipulated and the government concedes that the Sanitary District caused the refuse in question to pass through its sewers into the lake and that the refuse was at all times a liquid. There was a rational basis for this explicit exception in the circumstances of the statute’s enactment. Concern to eliminate immediate and potential hazards to navigation moved Congress to enact late Nineteenth Century legislation that culminated in the Rivers and Harbors Act of 1899. Thus, though Section 13 of the 1899 Act has also served in more recent times to provide some protection for the quality of bodies of water, its essential design was to safeguard their navigability. In this historic context, the statutory exception that governs this case is understandable. Although the statutory prohibition of the deposit or discharge of refuse into streams covered liquids as well as solids, an influx of liquid, free of solids in suspension, posed no significant immediate or potential hazard to navigability. At the same time local communities were progressively developing sanitary and storm sewerage systems and regulating their effluent. It is not surprising, therefore, that Congress in 1899 should see fit to leave the treatment and disposition of all liquid waste handled by local public sewerage systems to local regulation, exercising federal control thereover only to the extent necessary to prevent public sewers from becoming conduits for solids that might accumulate in and eventually impair the navigability of adjacent waters. In any event, the language of the statutory exception is clear and unambiguous. At argument, the appellee predicated a contrary interpretation of the controlling statutory language upon United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903. However, that ease involved only “industrial solids” and held that such matter, discharged through a sewerage system in the form of particles suspended in water, is not within the Section 407 exception. It is true that, in this context, the opinion of the Court spoke of two categories of “articles in suspension”, namely, “organic matter in sewage” and “industrial solids”. The significance of these categories is not clear, particularly since no such breakdown is undertaken in the statute. In any event, the case was concerned only with industrial solids and decided merely that under Section 407 such solids in suspension were not refuse in a liquid state. Subsequently, a few courts, incorrectly we think, have relied on United States v. Republic Steel Corp., as authority for making the Section 407 exception inapplicable to liquid waste of industrial origin that is passed through public sewers. But the Republic Steel holding does not require and rational reading of the simple language of Section 407 does not permit that interpretation. In a single sentence the statute prohibits the deposit or discharge in navigable water of “refuse matter of any kind or description whatever”, except for “that flowing from . . . sewers . . in a liquid state”. The quoted pronoun “that”, must refer to the subject phrase, “refuse matter of any kind”. Thus, the exception is not limited to refuse of domestic origin. We will not substitute for what the statute says our notions of what might preferably have been said. The judgment is reversed. Reversed. . Cf. United States v. Standard Oil Co., 1966, 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492; United States v. Esso Standard Oil Co. of Puerto Rico, 3 Cir. 1967, 375 F.2d 621. . See S.Rep. No. 224, 50th Cong., 1st Sess., 2 (1888); H.R.Rep. No. 1826, 55th Cong., 3d Sess., 3^4 (1899). The history of the 1899 Act is sketched in United States v. Pennsylvania Industrial Chemical Corp., 1973, 411 U.S. 655, 663-666, 93 S.Ct. 1804, 36 L.Ed.2d 567. . See cases cited in note 1, supra. Supplementing the earlier legislation Congress has more recently inaugurated an elaborate program of pollution control. 33 U.S.C. c. 23, entitled Pollution Control of Navigable Waters. . See Rodgers, Jr., Industrial Water Pollution and the Refuse Act, 1971, 119 U.Pa.L.Rev. 761, 778. . The opinion writer, Mr. Justice Douglas, seems to have used “sewage”, a word that does not appear in the statute, to mean human or other domestic waste. . E. g., United States v. Granite State Packing Co., D.N.H.1972, 343 F.Supp. 57, 61. . This seems to have been the contemporary reading of the statute by Attorney General, later Associate Justice, Joseph McKenna. 1897, 21 Op.Atty.Gen. 594, 595.

United States v. Massachusetts Bay Transportation Authority

ALDRICH, Senior Circuit Judge. The single question in this case, in which the facts were stipulated, is whether Massachusetts Bay Transportation Authority (MBTA) is subject to civil penalties pursuant to 33 U.S.C. § 1321 for causing oil spills into navigable waters. Section 1321 provides, in part, as follows. (a) For the purpose of this section, the term— (6) “owner or operator” means . in the case of an onshore facility . any person owning or operating such onshore facility . . . ; (7) “person” includes an individual, firm, corporation, association, and a partnership; (b)(1) The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States (3) The discharge of oil or hazardous substances (i) into or upon the navigable waters of the United States ... in such quantities as may be harmful as determined by the President ... is prohibited, except [in certain circumstances not here material]. (6) Any owner, operator, or person in charge of any onshore facility . from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary . MBTA takes the position that it is not a designated owner or operator of the facility from which oil was discharged because it is not a “person” within section 1321(a)(7), ante. First, it says that it is not a “corporation” under that section because although it has certain corporate features, it is basically a political subdivision of a state, and the statute draws this distinction. For present purposes we will so assume. The government counters by invoking the general definitional section, § 1362. This provides, Except as otherwise specifically provided, when used in this chapter: (5) The term “person” means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body. MBTA denies the applicability of this section on the ground that section 1321(a)(7) “otherwise specifically provided.” The district court agreed, stating, “The plain language of ... § 1321(a)(7) excludes public authorities.” This appeal followed. We do not find the matter that plain as a matter of language. “Specifically provided” is a strong expression. Manifestly no specific alternative is affirmatively set forth in section 1321(a)(7); “includes” has, at most, merely an implication of exclusion. The principle “expressio unius est exclusio alterius” is a suggestive guide to interpretation, Comtronics, Inc. v. Puerto Rico Tel. Co., 1 Cir., 1977, 553 F.2d 701, 707, appropriately applied to determine whether specifying one or more matters negates the implication of others. Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 1 Cir., 1963, 312 F.2d 214, 220, affirmed, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268. However, “includes” is not a finite word of limitation; its use destroys the basis for implying the negative. This would seem particularly so when the statute elsewhere uses “means.” Thus in Highway & City Freight Drivers, Dockmen & Helpers v. Gordon Transports, Inc., 8 Cir., 1978, 576 F.2d 1285, cert. denied, 439 U.S. 1002, 99 S.Ct. 612, 58 L.Ed.2d 678, the court said, at 1289, Section 1(8) uses the word ‘includes’ when setting out the types of organizations that come within the definition rather than the word ‘means.’ When a statute is phrased in this manner, the fact that the statute does not specifically mention a particular entity (in this case labor unions) does not imply that the entity falls outside of the definition.” (footnote omitted) See also American Fed’n of Television & Radio Artists v. NLRB, D.C. Cir., 1972, 149 U.S.App.D.C. 272, 274-75, 462 F.2d 887, 889-90. For this reason, the Second Circuit, in a case on all fours, has resolved the present statute against a municipality. United States v. City of New York, 614 F.2d 1292 (2 Cir. 1979), memo aff’g on the opinion of the district court, S.D.N.Y., 1979, 481 F.Supp. 4. There are additional reasons, beyond our reading of the word “includes,” for reaching such a holding. MBTA’s suggested interpretation would render the statute internally inconsistent. By virtue of §§ 1321(a)(3) and (4) vessels owned by a “political subdivision” are in some circumstances excluded, and in others included, within the section. This does not jibe with a construction of § 1321(a)(7) that would exclude political subdivisions altogether. Of ultimate importance, however, is the substantive effect that MBTA’s interpretation would have upon this section. There are several aspects to section 1321. One is a blanket requirement that the responsible party notify the government of any discharge, irrespective of fault in causing it. § 1321(b)(5). This, obviously, is to permit prompt countermeasures pursuant to § 1321(c). The aspect of the section with which we are here concerned, § 1321(b)(6), imposes a penalty for the discharge itself. If MBTA is not a “person” subject to subsection (b)(6), neither is it a person subject to subsection (b)(5). No possible reason suggests itself for exempting states, municipalities, and the like from this duty to notify. Nor is there any general policy in the act to exempt them from penalties. See § 1319. It may be true that we do not know why Congress chose the particular language it did for section 1321(a)(7). However, the fact that we might ask questions of the draftsman does not suggest that we should take language to mean other than what it appears to say, or construe it to create inconsistencies, or construe it contrary to the statute’s manifest purpose. The defendant must be held accountable under the statute. Since there are no other defenses, the judgment of the district court is vacated and the court is ordered to enter judgment for the plaintiff. . Compare Samuel Goldwyn’s noted use, “Include me out.” A. Johnston, The Great Goldwyn. . In addition to other subsections of § 1321(a) and § 1362 using “means,” see definitional subsections 1319(c)(3) and 1322(a)(8).

United States v. Chevron Oil Co.

RONEY, Circuit Judge: This appears to be the first appellate case concerning harm to the environment within the context of the penalty provisions of the Federal Water Pollution Control Act Amendments of 1972. In this case the issue is clearly presented as to whether or not the definition of harm to the environment promulgated by the Executive Branch pursuant to the statute must yield in a particular situation when the evidence shows that no harm in fact resulted to the environment from the spill in question. In this action brought by the United States against defendant Chevron Oil Company to enforce a civil penalty for discharging oil into the navigable waters, the district court granted summary judgment for the Government. We reverse and remand for entry of summary judgment for Chevron. The statutory scheme in question prohibits discharges of “harmful quantities” of oil, and the administrative regulations state that any spill that causes a “sheen” on the water is harmful. While we hold that the regulation establishing the “sheen test” is generally valid, it is invalid as applied to the facts of this case in which .the uncontradicted evidence at the administrative hearing showed that although this spill produced a sheen, it did not have a harmful effect. Statutory Scheme: 33 U.S.C.A. § 1321(b) and the “Sheen Test” The statutory section in question, presently codified at 33 U.S.C.A. § 1321(b), was added by Congress in 1970 as part of the Water Quality Improvement Act of 1970 [Pub.L.No. 91-224, 84 Stat. 91], and amended in 1972 by the Federal Water Pollution Control Act Amendments of 1972 [Pub. L.No. 92-500, 86 Stat. 862]. It was most recently amended by the Clean Water Act of 1977 [Pub.L.No. 95-217, 91 Stat. 1593, codified at 33 U.S.C.A. § 1251 et seq.]. Since the changes made by the 1977 Amendment do not affect this case, we will refer in this opinion to the current version of § 1321(b). Section 1321(b)(3) prohibits the discharge of oil “in harmful quantities as determined by the President under” § 1321(b)(4). Section 1321(b)(4) instructs the President to issue regulations indicating “those quantities of oil . . . the discharge of which, at such times, locations, circumstances, and conditions, will be harmful . . . .” Enforcement of these provisions is provided for by § 1321(b)(6). When a discharge of oil in violation of § 1321(b)(3) occurs, the Coast Guard may assess the owner, operator, or person in charge of the vessel or facility a civil penalty of up to $5,000, provided that notice and an opportunity for a hearing is provided. 33 U.S.C.A. § 1321(b)(6). Finally to aid in the detection of oil spills, § 1321(b)(5) requires any “person in charge” of a vessel or facility to immediately report any discharge in violation of § 1321(b)(3) to the appropriate agency. The section also provides criminal penalties for a failure to so notify. From this summary of the statutory scheme, it is apparent that the entire regulatory structure of the Act hinges on the term “harmful quantities as determined by the President.” The President exercised the authority given him by Congress and determined that “at all times and locations and under all circumstances and conditions,” discharges of oil which cause “a film or sheen upon or discoloration of the surface of the water” are determined to be harmful. 40 C.F.R. § 110.3 (1977). Chevron challenges the validity of this regulation known as the “sheen test” as applied to the facts of this case in which the uncontra-dicted evidence showed that Chevron’s oil spill caused a sheen but was not “harmful.” Chevron’s Oil Spill The facts concerning this spill were developed at an administrative hearing before the Coast Guard, a transcript of which is in the record, and are not in dispute. Chevron is the owner-operator of an oil and gas producing structure located in Lake Salvadore in St. Charles Parish, Louisiana. This structure stands in about eleven feet of water and is approximately two miles from the nearest shore. A vent or flare pipe is found some 150 feet away. On November 7,1972, a malfunction resulted in the discharge through the vent pipe of approximately one-half to one barrel of crude oil. Since a barrel of crude oil contains 42 gallons, 21 to 42 gallons of oil were spilled. A Chevron employee corrected the malfunction and recovered about one-half barrel of the discharged oil which had remained within the casing surrounding the vent pipe. He also noticed a “slight sheen” on the water which he estimated was about 20 feet in width and 50 feet in length. Chevron notified the Coast Guard of the spill as required by § 1321(b)(5). The Coast Guard proposed that Chevron be fined $1,000 for the oil spill pursuant to § 1321(b)(6). The statutorily guaranteed hearing was held at Chevron’s request. At that hearing, the above facts were elicited from Chevron personnel, and Chevron called Dr. John Mackin as an expert witness. He was accepted by the Coast Guard “as an expert biologist in the field of marine life and marine organisms and as an expert in the effect of oil in such marine life and organisms.” He testified that under the circumstances of the spill as testified to at the hearing, it was his opinion that this spill did not have a harmful effect on the environment of Lake Salvadore, despite the presence of a “sheen” upon the water. Dr. Mackin also testified that the toxicity of oil is a function of its concentration, and a sheen does not show quantity or concentration. He felt that the sheen test of 40 C.F.R. § 110.3 was inappropriate for determining the harmful effects of an oil spill. The Government did not produce any evidence at the hearing. After the hearing, the Coast Guard confirmed the $1,000 penalty assessment, and Chevron exhausted its administrative remedies. The Government then brought this suit in district court to collect the penalty. 23 U.S.C.A. § 1355. Both sides moved for summary judgment on the basis of the undisputed facts set out above. In addition, over Chevron’s objections, the Government submitted to the district court an affidavit of Kenneth Biglane, the Director of the Division of Oil and Special Materials Control for the Environmental Protection Agency. The affidavit dealt not with the specific facts of the present spill but with the reasons for the sheen test’s adoption. Mr. Biglane stated that “smaller spills [of 10 barrels or less] have a seriously degrading effect on the environment.” He averred that the “environmental damage caused by discharges of oil in quantities sufficient to produce a sheen on the surface of the water has been widely recognized,” and he mentioned several scientific studies and reports which supported that statement. Therefore, it was his opinion “that an oil spill sufficient to produce a film or sheen on the surface of the water is large enough to cause harm to the environment.” Based on this premise and the “enforcement workability of the sheen test,” he concluded that the test “is well suited to define a discharge which damages the environment . . . .” The district court found that the differences of opinion between Chevron’s expert, Dr. Mackin, and those who promulgated the sheen test regulation “would appear to be inevitable and unavoidable in any determination as subjective as the definition of harmful quantities of oil” and that these differences did not make the regulation unreasonable or arbitrary. The judge therefore granted summary judgment for the Goyernment, relying primarily on the Ninth Circuit case of United States v. Boyd, 491 F.2d 1163 (9th Cir. 1973). United States v. Boyd and Its Progeny Boyd involved a criminal prosecution for failure to report a spill of “approximately thirty gallons” in which the validity of the sheen test was challenged as applied to the § 1321(b)(5) duty to report harmful discharges. Boyd challenged the sheen test on the ground that it “defines as ‘harmful’ a broader class of oil discharges than Congress intended . . . .” Id. at 1166. The Ninth Circuit upheld the sheen test on the facts of the case before it. It relied on the legislative history and the same Biglane affidavit which was submitted to the district court in the case sub judice. Id. at 1167-1169. One factor which the court found persuasive in the reporting context was the “workability” and “simplicity” of application of the sheen test: [Ojne salutary aspect of the sheen test is the simplicity of its application. The statute and Regulation read together amount to a clear command to a ship captain: “If you can see the spill, report it!” Id. at 1169. The court also relied on Biglane’s conclusion that a discharge large enough to cause a sheen is large enough to cause harm to the environment, noting that this statement was supported by the scientific studies cited in the affidavit and was not refuted by Boyd. Id. The court upheld the sheen test, concluding that “[njothing has been shown, on the facts in this case, to indicate that the Department’s Regulations determining harmfulness go beyond the statutory mandate.” Id. at 1170. Several district courts have upheld the sheen test’s validity as a definition of harmfulness in suits brought by the Government to collect § 1321(b)(6) civil penalties. See Ward v. Coleman, 423 F.Supp. 1352, 1357-1359 (W.D.Okla.1976); United States v. Beatty, Inc., 401 F.Supp. 1040, 1043-1044 (W.D.Ky.1975); United States v. Eureka Pipeline Co., 401 F.Supp. 934, 942-943 (N.D.W.Va.1975). Those cases rely on Boyd and its reasoning without discussion of any possible distinctions between § 1321(b)(5) reporting cases and § 1321(b)(6) penalty cases. In addition, like Boyd, there was no proof in any of these cases that the sheen test might cover de minimis oil spills. These cases merely followed Boyd without adding anything to it. The present case requires us to analyze Boyd and to determine whether its reasoning is still controlling where there is evidence that the spill was not harmful even though it caused a “sheen” on the water. Validity of the Sheen Test as a Basis for Imposing a Civil Penalty for Chevron’s Spill Congress could have prohibited all oil spills in the navigable waters of the United States. Indeed, the Senate version of the Water Quality Improvement Act of 1970 prohibited all discharges. See [1970] U.S.Code Cong. & Admin.News, p. 2691, at 2719. The House version of the bill prohibited only “substantial” discharges. Id. at 2692-2693, 2700, 2713-2714. The conference committee substituted the present prohibition on “harmful quantities as determined by the President.” Id. at 2722-2723. It is clear from this that certain de minimis discharges are not prohibited by § 1321(b). Congress delegated to the President the authority to enact regulations to separate these nonprohibited de minimis quantities from prohibited “harmful” quantities. Of course, instead of allowing the President to define “harmful quantities,” Congress could have enacted the “sheen test” as part of § 1321(b). Had Congress done so, Chevron concedes that the sheen test would have been valid even as applied to the facts of this case. For the reasons given in the Biglane affidavit and in the Boyd opinion, there is a reasonable basis for the sheen test even if the test is somewhat broader than necessary to achieve the congressional objective of prohibiting only harmful oil spills. As a regulation, however, the sheen test cannot be any broader than congressionally authorized. Boyd and its progeny upheld the sheen test because there was no evidence in those cases that the test exceeded the statutory mandate. The court in Boyd refused to hypothesize such a situation in the absence of proof in the record: Arguing against validity, Boyd asks the Court to judicially notice that not every quantity of oil creating a sheen or discoloration on a water surface is “harmful”; that, for example, a single drop is not harmful. Here the prosecution was for a spill of some thirty gallons. The facts in this case, not hypothetical situations, should govern our decision. Even assuming that Boyd might have standing to complain of hypothetical applications of the sheen test, he cannot rely upon judicial notice as to the effect of oil spills. Boyd’s argument is, therefore, speculation, unsupported by the record. 491 F.2d at 1168 (citations omitted). In the case sub judice, the “hypothetical” situation mentioned in Boyd has become a reality. According to the uncontradicted evidence of Chevron’s expert, Dr. Mackin, Chevron’s spill was not harmful despite the fact that it caused a sheen. Thus it would appear that the sheen test as applied to the facts of this case exceeds the scope of the congressionally delegated authority. We need not, however, strike down the regulation. As the court in Boyd found, the sheen test is very workable, and there is a proven scientific connection between a sheen and harmful quantities of oil. The sheen test provides a useful general criterion, but one which will occasionally cover nonprohibited de minimis spills. Any quantification adopted in an area such as this is liable to hit nonharmful spills in certain circumstances. The solution to the problem can be found in the hearing provided by § 1321(b)(6). A defendant must be allowed to offer proof at that hearing that its spill was not harmful despite the presence of a sheen. By “not harmful” we mean only that the quantity of oil spilled was de minimis, not that a harmful quantity was spilled but fortunately did not actually cause any harm. Because the sheen test provides a generally valid and useful standard, it creates a rebuttable presumption that any spill which causes a sheen is “harmful” and therefore prohibited by § 1321(b)(3). Evidence of a sheen thus provides a sufficient basis for the Government to assess the § 1321(b)(6) civil penalty unless a defendant proves that its spill was not harmful under the circumstances. If a defendant introduces such evidence, as Chevron did here through Dr. Mackin, the Government must rebut with evidence that defendant’s spill was of a harmful quantity under the circumstances. Since the Government in the case sub judiee did not come forward with any evidence at the administrative hearing, the penalty cannot be enforced. Accordingly, the district court’s grant of summary judgment is reversed, and the case is remanded for entry of summary judgment for defendant Chevron. REVERSED AND REMANDED. . Section 1321(b)(3) provides in pertinent part: The discharge of oil or hazardous substances (i) into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone ... in harmful quantities as determined by the President under paragraph (4) of this subsection is prohibited, . (Emphasis added). . Section 1321(b)(4) provides: The President shall by regulation, to be issued as soon as possible after October 18, 1972, determine for the purposes of this section, those quantities of oil and any hazardous substance the discharge of which, at such times, locations, circumstances, and conditions, will be harmful to the public health or welfare of the United States, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches. . That section provides in pertinent part: Any owner, operator, or person in charge of any onshore facility or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. Any owner, operator, or person in charge of any vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of this subsection, . . . shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. . Section 1321(b)(5) provides in pertinent part: Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person (A) in charge of a vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of this subsection, ... or (C) in charge of an onshore facility or an offshore facility, who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. . The regulation provides in full: § 110.3 Discharge into navigable waters harmful. For purposes of section 311(b) of the Federal Act [33 U.S.C.A. § 1321(b)], discharges of such quantities of oil into or upon the navigable waters of the United States or adjoining shorelines determined to be harmful to the public health or welfare of the United States, at all times and locations and under ail circumstances and conditions, except as provided in § 110.6 of this part, include discharges which: (a) Violate applicable water quality standards, or (b) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines. (Emphasis added). The exception in § 110.6 of the Regulations is not applicable to this case. It provides that “discharges of oil from a properly functioning vessel engine are not deemed to be harmful.” . The definition subsection of § 1321 states that “ ‘barrel’ means 42 United States gallons at 60 degrees Fahrenheit.” 33 U.S.C.A. § 1321(a)(13). . The relevant portions of Dr. Mackin’s testimony are as follows: Q. [Chevron’s Attorney] Now, I would like to ask you the following question as an expert: Assuming that at approximately 1:15 a. m. on the morning of November 7, 1972, approximately one half to one barrel of oil was spilled into Lake Salvadore from the vent pipe located approximately 150 feet away from the Bayou Villars Tank Battery in Lake Salvadore, the water depth being approximately 11 feet and the vent pipe being located approximately two miles from the nearest shore, and assuming that some of the oil was spilled into the casing surrounding the vent pipe, was recovered, and that some of the spilled oil created a sheen upon the waters of Lake Salvadore. Now, based on those assumptions, in your opinion did the oil spilled into Lake Salvadore which created that sheen result in any harmful effect or damage to marine life or to the ecological environment? A. [Dr. Mackin] No, sir. Q. Would you explain your answer, please? A. Well, my answer is based upon the experience that I’ve had, the experiments that I have performed and the studies in the field which I have performed in which amounts or concentrations of oil far in excess of that shown to have been lost in this particular spill failed to have any effect whatsoever. Q. Are you saying, Dr. Mackin, that this spill could have been five or ten times as great and there would still have been no damage? A. Yes, sir, it could have been considerably greater. Q. Now, Dr. Mackin, would you agree with the following statement: “Where a discharge of oil is large enough to cause a film or sheen on the surface of the water it is large enough to cause harm to the environment"? A. No, sir, I would disagree. Q. And would you explain your answer, please? A. Well, first I would point out that a sheen is not a quantification. The term “sheen ” simply means a reflection. It cannot in any way either quantify the oil lost nor can it give any kind of an idea of what the concentration of oil is. The toxicity of oil is a function of its concentration, and without that information the statement is meaningless. Q. You talk about concentration, Dr. Mackin; is it the amount of oil that is spilled or is it the concentration of the oil in a particular area that determines whether or not an oil spill is harmful? A. It definitely is the concentration of oil which has to do with its capacity to do damage. So, while you can set up on the basis of experiments and the careful measurement of the amounts of oil which you use in experimentation, and you can judge from that what, say, a half barrel of oil would do in a large lake such as Savadore, really in the last analysis after you have eliminated a number of these small amounts as really ridiculous amounts so far as the production of damage is concerned, there is only one way to determine what damage from oil is, and this is to do a study of the biota to determine whether or not damage has been done. [Tr. 26-32, emphasis added]. . Ward v. Coleman, supra, 423 F.Supp. at 1358-1359 (the court agreed with Boyd’s conclusion that nothing was shown on the facts in the case to indicate that the sheen test goes beyond the statutory mandate); United States v. Eureka Pipeline Co., supra, 401 F.Supp. at 943 (“The Defendant has presented no evidence that the regulation goes beyond the authority under which it was promulgated.”); see United States v. Beatty, Inc., supra, 401 F.Supp. at 1042, 1044 (court found Boyd’s reasoning persuasive where the only evidence showed that the spill of 5 to 75 gallons of oil caused an oil slick of approximately 200-300 feet in diameter). Cf. United States v. Kennecott Copper Corp., 523 F.2d 821 (9th Cir. 1975) (in criminal prosecution for a spill of 173,800 gallons of oil the court upheld the sheen test on the basis of Boyd against an attack on its vagueness); United States v. W. B. Enterprises, Inc., 378 F.Supp. 420 (S.D.N.Y.1974) (court, holding that the operative fact was the discharge itself, rejected defendant’s contention that while its discharge of 25-30 gallons of oil into the East River created a sheen, it should not be liable for a penalty because it removed all the oil from the water and thus there was no harm). . A general declaration of congressional policy against discharging any oil was also inserted into the Act: The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States, . 33 U.S.C.A. § 1321(b)(1). See also id § 1251. . United States v. Boyd, supra, 491 F.2d at 1167-1168 & n.5; Ward v. Coleman, supra, 423 F.Supp. at 1358; United States v. Beatty, Inc., supra, 401 F.Supp. at 1044. . Use of an “actual harm” test has been rejected by the courts in construing § 1321(b). See, e. g.. United States v. Atlantic Richfield Co., 429 F.Supp. 830, 839 (E.D.Pa.1977), aff’d without opinion, 573 F.2d 1303 (3rd Cir. 1978) (harmful quantity is determined at the time of the spill rather than after defendant’s cleanup efforts, so that defendant’s remedial action after a spill is irrelevant to the determination of “harmfulness”); United States v. W. B. Enterprises, Inc., 378 F.Supp. 420, 422 (S.D.N.Y. 1974) (same). . We need not now decide whether the sheen test also creates only a rebuttable presumption in the context of § 1321(b)(5)’s duty to report harmful spills. While the statutory language is the same, the purpose of the reporting requirement is to enable an expeditious cleanup of the spill rather than to penalize for it, and that might allow the sheen test to serve as an irre-buttable presumption in that context. Since Chevron reported the spill and also concedes the validity of the reporting requirement even on the facts of this case, the sheen test as applied to § 1321(b)(5)’s reporting requirement is not before us.

United States v. Boyd

WEIGEL, District Judge: This case presents a question of first impression as to the validity of Regulations of the Department of the Interior prohibiting discharges of oil into the navigable waters of the United States. As applied to the facts in this case, we have concluded that both the regulations and the statute upon which they are based are valid. Appellant Robert Blaine Boyd was charged by information with violation of 33 U.S.C. § 1161(b) (4) which declares it to be a crime for any captain of a vessel in United States navigable waters to fail to notify immediately the “appropriate” federal agency in the event of a known “discharge of oil from such vessel.” Conviction may result in a fine of not more than $10,000 or imprisonment for not more than one year or both. The type of discharge which brings the provisions of paragraph (4) into operation is defined therein by reference to paragraph (2) of subsection 1161(b) which provides: The discharge of oil into or upon the navigable waters of the United States, ... in harmful quantities as determined by the President under paragraph (3) of this subsection, is prohibited, except (B) where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful. Any regulation issued under this subsection shall be consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards. (Emphasis added.) Paragraph (3) provides for the issuance of regulations by the President to delineate those quantities of discharges which will be “harmful to the public health or welfare of the United States, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches. ...” These provisions were enacted as part of the general statutory scheme embodied in section 1161 for the control of oil pollution. Section 1161 is, in turn, part of the Water Quality Improvement Act of 1970 (Pub.L. 91-224, Title I, § 102, 84 Stat. 91, 97-117, codified in 33 U.S.C. § 1151 et seq.), which amended, inter alia, section 11 of the Federal Water Pollution Control Act of 1956 (Ch. 518, § 1, 70 Stat. 498). Pursuant to subsection 1161(b)(3), the President by Executive Order (Exec. Ord. #11548, July 22, 1970, 3 C.F.R. 539 (Supp.1972)) delegated to the Secretary of the Interior his regulation-making duties. On September 9, 1970, Secretary Hickel issued the Regulations which were duly noticed and eventually codified as Environmental Protection Agency, Regs., Discharge of Oil, 40 C. F.R. Part 110. Of these Regulations, subsections 110.3 and 110.6 are salient to this case. § 110.3 Discharge into navigable waters harmful. For purposes of Section 11(b) of the Federal Act [i. e., subsection 1161(b)], discharges of such quantities of oil into or upon the navigable waters of the United States or adjoining shorelines determined to be harmful to the public health or welfare of the United States include discharges which: . . . (b) cause a film or sheen upon or discoloration of the sur face of the water or adjoining shorelines. . . . (Emphasis added.) § 110.6 Exception for vessel engines. For purposes of Section 11(b) of the Federal Act, discharges of oil from a properly functioning vessel engine are not deemed to be harmful. . (Emphasis added.) Reading the statute and regulations together, a discharge of oil from a ship is “harmful” and prohibited, if it produces a sheen on the water’s surface and if it does not come from a properly-functioning vessel engine. Under subsection 1161(b) (4), any ship captain who does not immediately notify the appropriate agency of such a discharge may be criminally prosecuted. (The administrative determination of discharges “in harmful quantities”, stated in Regs. §§ 110.3, 110.6, will hereafter be referred to as the “sheen test”.) . This brings us to the facts of this case. Just before trial the parties stipulated that: On September 4, 1971, Boyd was captain of the merchant ship M/V MERCATOR, a crab processing vessel which was then moored at a wharf on the Salmon Bay Waterway in Seattle. A crewman on the ship was transferring diesel fuel oil from the port to the starboard fuel tank by means of a hose. He accidentally knocked the hose out of the starboard tank, and “approximately thirty gallons” of oil were discharged into the water, causing a visibly iridescent slick or sheen on the surface. Captain Boyd knew of this spill at the time, but he failed to notify the U. S. Coast Guard or any other government agency. The next morning a Coast Guard safety patrolman noticed the oil slick around the MERCATOR and reported it. Upon being charged with a failure to report under subsection 1161(b)(4), Boyd had moved to dismiss the information on two grounds. His first claim was that it did not state facts sufficient to constitute an offense against the United States; his second, that paragraphs (2) and (4) of subsection 1161(b) are unconstitutional. After the filing of extensive briefs and after a hearing, the district judge granted the motion to dismiss. The prosecution filed for reconsideration, and after another hearing the judge again granted the dismissal. However, on May 2, 1972, the judge wrote a letter to the parties stating that he had decided his prior decision was erroneous. He declared that the sheen test was a “proper determination” of harmfulness of discharge “ . . . and must stand unless shown to have been arbitrarily or capriciously concluded. No such showing has been made.” The motion to dismiss was thus finally denied, and only thereafter did the parties enter into the stipulation of facts as set out above. Since a dismissal motion raising the issues of law had been denied, the stipulation concludes: “[T]he facts set forth above, without more, provide a sufficient basis from which the Court can find, beyond a reasonable doubt, that . Boyd is guilty of the offense charged. . . . ” After trial to the court, the judge convicted Boyd, suspended sentence, and placed him on probation for one year. Boyd’s major contention on appeal is this: The sheen test improperly defines as “harmful” a broader class of oil discharges than Congress intended; the direct result is to make criminal a failure to report a discharge in cases where it is not harmful; therefore, the entire regulatory scheme (originally codified in 18 C.F.R. §§ 610.1-610.9, and now codified in 40 C.F.R. §§ 110.1-110.9), of which the sheen test is the cornerstone, is invalid as an abuse of the rule-making power which Congress gave to the Executive Branch. Boyd also argues that subsection 1161(b)(4) is void for vagueness. We turn first to the attack on the Regulations themselves. Where a statute specifically delegates to an administrative agency the power to make rules, courts recognize a presumption that such rules, when duly noticed, are valid. See, e. g., Gray v. Powell, 314 U.S. 402, 411-412, 62 S.Ct. 326, 86 L.Ed. 301 (1941); A.T. & T. Co. v. United States, 299 U.S. 232, 236-237, 57 S.Ct. 170, 81 L.Ed. 142 (1936); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138 (1935). The presumed validity of a general regulation, in contrast to that of an individual adjudication, does not require special findings. Pacific States Box & Basket Co. v. White, supra, at 186, 56 S.Ct. 159. This presumption is rebuttable, particularly where the governing statute is penal, upon a showing that the challenged regulation is an unreasonable exercise of the delegated power—i.e., inconsistent with the statute. See, e. g., Commissioner v. Acker, 361 U.S. 87, 90-92, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959); United States v. Calamaro, 354 U.S. 351, 358-359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957). The burden placed on Captain Boyd is thus a heavy one, for he must show that the sheen test determination of harmfulness cannot be considered a reasonable expression of the Congressional will, even though Congress has given the Executive broad authority to make that determination. To meet this burden, Boyd argues at the outset that Congress did not intend all oil discharges to be deemed “harmful”, and therefore there is a certain class of de minimis discharges to which the sanctions of subsection 1161(b)(4) do not apply. We agree. If Congress had meant the reporting requirement to apply to all discharges, it could have said so in plain language, rather than delegate determination of a “harmful” spill to the President as it did in paragraphs (2) and (3). The question before us is whether or not the sheen test, on the particular facts in this ease, is a valid basis for distinction between those discharges which are harmful and those which are not. Arguing against validity, Boyd asks the Court to judicially notice that not every quantity of oil creating a sheen or discoloration on a water surface is “harmful”; that, for example, a single drop is not harmful. Here the prosecution was for a spill of some thirty gallons. The facts in this case, not hypothetical situations, should govern our decision. See United States v. Raines, 362 U.S. 17, 21-23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Even assuming that Boyd might have standing to complain of hypothetical applications of the sheen test, he cannot rely upon judicial notice as to the effect of oil spills. See 9 Wigmore, Evidence, § 2571, pp. 547-550 (3rd ed. 1940). Boyd’s argument is, therefore, speculation, unsupported by the record. Appellant next contends that the sheen test was devised in order to achieve workable administration, thereby subverting Congressional intent. He quotes from the affidavit of Kenneth Biglane, an Interior Department administrator whose self-described duties included the formulation and direction of “national programs to respond to discharges of oil and hazardous materials and to prevent such discharges, pursuant to sections 11 and 12 of the .Federal Water Pollution Control Act [i. e., §§ 1161-1162], as amended. . . . ” Concerning the sheen test, the Biglane affidavit states: A major purpose of [this regulation] is to define discharge of oil for the purposes of the notification requirement of section . 1161(b)(4). For this purpose the film or sheen test is especially well suited, since its effect is to require notification of any oil discharges whose effect can be seen as a film or sheen of oil upon the surface of the water. Thus it is a simple matter for a responsible person to know which discharges must be reported. It has been my experience in investigating oil spills that persons at the scene, and persons responsible for the spill, are frequently unaware of how much oil has been discharged and its effect on the environment, even within very broad limits. Thus a notification requirement based on the amount discharged would be unworkable in many cases. On the basis of these observations by Biglane, appellant contends that the sheen test sacrifices statutory intent on the altar of “workability”. While the Biglane affidavit does show that one reason for the sheen test was workable administration, this is by no means an irrational factor for the Department to consider. As a practical matter, the sheen test is more appropriate than, for example, a numerical test, or a determination that a “substantial” amount of spilled oil is harmful. A numerical test creates not only the inherent difficulty of accurate observation as to the quantity discharged, it also may spawn an incentive to be inaccurate so as to avoid the obligation of reporting. Moreover, if the term “substantial” were used, there would be endless confusion over its meaning. In any case, ease of administration is not an “impermissible factor” in the Department’s determination. Cf. Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 597 (1971). There is no evidence that the sheen test was devised to alter the meaning of the statute, or to avoid making a determination of harmfulness. On the contrary, the Biglane affidavit expressly states that “smaller spills (10 barrels or less) have a seriously degrading effect on the environment . . . particularly ... [in areas] near the coastline. . . . Where a discharge of oil is large enough to cause a film or sheen on the surface of the water, it is large enough to cause significant harm to the environment.” This statement is supported by reference to summaries of scientific studies attached as exhibits and is not refuted by appellant. Thus the Biglane affidavit evidences the Department’s administrative assessment of enforcement problems as well as its investigation and determination of what constitutes a harmful discharge. The two considerations are not mutually exclusive. Appellant further contends that the exception to the sheen test—i. e., “discharges of oil from a properly functioning vessel engine . . . ”—demonstrates the irrationality of the sheen test itself. He points out that this exception allows a ship captain to escape the nonreporting penalty for any amount of oil spilled from a properly functioning engine, whether or not it is enough to create a sheen. In other words, the harmfulness of the spill is made to depend on its source. While at first blush this may seem a curious result, we are persuaded that the exception is reasonable. The exception relates to a specific class and, as the trial judge wrote in his letter denying Boyd’s motion to dismiss, “is necessary and proper if there is to be traffic upon the seas and inland navigable waters.” Footnote 2, supra. Determination of harmfulness “to the public health or welfare of the United States” requires balancing the competing interests of environmental protection and unrestricted passage on navigable waters. It is precisely this balancing which the “properly functioning engines” exception reflects. Indeed, the exception was included in the Regulations at the behest of Congress. When the Regulations were originally proposed, after passage of the Act, the sheen test did not contain the exception. During committee hearings on the proposed Regulations, Senator Muskie remarked : .' . . At a minimum the President can and should immediately by regulation prohibit the discharge of oil which exceeds the amount normally anticipated in operation of a vessel. It is obvious, then, that both committees [the House and Senate committees working on the bill] felt that the minimal amounts of oil discharged in the normal operation of a properly functioning vessel engine ought not to be subject to the notice requirements of the law. . . . (Emphasis added.) Hearings on Proposed Regulations of the Department of the Interior on Oil Pollution under the Water Quality Improvement Act of 1970, before the Subcommittee on Air and Water Pollution, Senate Committee on Public Works, 91st Cong., 2d. Sess. at 34 (Aug. 4,1970). After these hearings, the exception was adopted by the Department. As qualified thereby, the sheen test met no further Congressional objections. We now briefly address Boyd’s contention that the statute, construed together with the Regulations, violates Fifth Amendment due process of law. This claim rests on the premise that subsection 1161(b)(4), when coupled with the sheen test, is void for vagueness. See, Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) (classic statement of vagueness doctrine). However, as has been discussed, one salutary aspect of the sheen test is the simplicity of its application. The statute and Regulation read together amount to a clear command to a ship captain: “If you can see the spill, report it!” That duty of reporting, depending as it does simply on one’s sense of sight, is anything but vague. No man “of common intelligence must necessarily guess at [the statute’s] meaning and differ as to its application. ...” Id. A spill of approximately thirty gallons may seem small to some, particularly in comparison to the 1967 Torrey Canyon casualty off the shores of England and France, or the Santa Barbara blowout in 1969. However, Congress enacted a law cf. broad application when it caused the provisions of subsection 1161(b) to be triggered by any oil discharge in a “harmful” quantity. Nothing has been shown, on the facts in this case, to indicate that the Department’s Regulations determining harmfulness go beyond the statutory mandate. Judgment affirmed. . “Oil”, “discharge”, and “vessel” are defined in lay language under subsection 1161(a), a general “Definitions” section. Unless otherwise stated, statutory section references herein are to Title 33 of the United States Code. . Also pertinent is the following comment by the judge: “I note that the basis for my oral decision was the exception to the Secretary’s determination that oil discharged upon such water from a properly functioning vessel engine is not deemed to be harmful. I was not able to understand how such an oil spillage could be harmful or not depending upon the source of the spillage. I have now concluded, however, that the exception relates to a reasonably specific class and is necessary and proper if there is to be traffic upon the seas and inland navigable waters. The exception is therefore permissible.” . Boyd does not question the legality of the President’s delegation, by Executive Order, of his duties to the Secretary of the Interior. . In fact, the legislative history of the 1970 Act indicates that the Senate and House conferees gave up their efforts to specify what was harmful and decided that the President, with his considerably greater research resources, was better equipped to make that determination. During the hearings of the committee reviewing the Department’s proposed regulations, after the Act’s final passage, Senator Muskie remarked : We were troubled about the notice provisions of the law, as well as the liability provisions of the law. It was conceivable that de minimis quantities of oil ought not to be subject to the notice provisions and ought not to be subject to the penalty provisions of the law. It was difficult to define these quantities in the statute. The definition, we felt, would depend upon more extensive study than we could give, and even if we were in a position to give that kind of study, there were other reasons why such specificity ought not to be included in the law. We finally gave the authority to the President to define those quantities. Hearings on Proposed Regulations of the Department of the Interior on Oil Pollution under the Water Quality Improvement Act of 1970 before the Subcommittee on Air and Water Pollution, Senate Committee on Public Works, 91st Cong., 2d Sess. at 34 (August 4, 1970). . The original House bill', H.R. 4148, would have required reporting only with respect to discharges “in substantial quantities”. (Emphasis added.) Conf.Rep.No.91-940, 91st Cong., 2d Sess., 1970 U.S.Code Cong, and Admin.News, pp. 2712, 2713—re § 17 (b) of H.R. 4148. The Senate amendment, S. 7, prohibited all discharges, except where permitted by Presidential regulations consistent with maritime laws and water quality standards. Id. at p. 2719—re § 12(b) (1) of S. 7. Section 102 of the conference substitute struck down both versions and was eventually enacted into law. This history at least demonstrates that Congress did not deem every oil spill to be a “harmful” one, since the changes in the legislation from original introduction to final enactment were not insignificant. . A barrel of oil is defined in the Biglane affidavit as 42 gallons at 60° Fahrenheit.

United States v. Standard Oil Co.

Mr. Justice Douglas delivered the opinion of the Court. The question presented for decision is whether the statutory ban on depositing “any refuse matter of any kind or description” in a navigable water covers the discharge of commercially valuable aviation gasoline. Section 13 of the Rivers and Harbors Act provides: “It shall not be lawful to throw, discharge, or deposit . . . any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States . . . .” 33 U. S. C. § 407 (1964 ed.). The indictment charged appellee, Standard Oil (Kentucky), with violating § 13 by allowing to be discharged into the St. Johns River “refuse matter” consisting of 100-octane aviation gasoline. Appellee moved to dismiss the indictment, and, for the purposes of the motion, the parties entered into a stipulation of fact. It states that the gasoline was commercially valuable and that it was discharged into the St. Johns only because a shut-off valve at dockside had been “accidentally” left open. The District Court dismissed the indictment because it was of the view that the statutory phrase “refuse matter” does not include commercially valuable oil. The United States appealed directly to this Court under the Criminal Appeals Act (18 U. S. C. § 3731 (1964 ed.)). We noted probable jurisdiction. 382 U. S. 807. This case comes to us at a time in the Nation’s history when there is greater concern than ever over pollution— one of the main threats to our free-flowing rivers and to our lakes as well. The crisis that we face in this respect would not, of course, warrant us in manufacturing offenses where Congress has not acted nor in stretching statutory language in a criminal field to meet strange conditions. But whatever may be said of the rule of strict construction, it cannot provide a substitute for common sense, precedent, and legislative history. We cannot construe § 13 of the Rivers and Harbors Act in a vacuum. Nor can we read it as Baron Parke would read a pleading. The statutory words are “any refuse matter of any kind or description.” We said in United States v. Republic Steel Corp., 362 U. S. 482, 491, that the history of this provision and of related legislation dealing with our free-flowing rivers “forbids a narrow, cramped reading” of § 13. The District Court recognized that if this were waste oil it would be “refuse matter” within the meaning of § 13 but concluded that it was not within the statute because it was “valuable” oil. That is “a narrow, cramped reading” of § 13 in partial defeat of its purpose. Oil is oil and whether useable or not by industrial standards it has the same deleterious effect on waterways. In either case, its presence in our rivers and harbors is both a menace to navigation and a pollutant. This seems to be the administrative construction of § 13, the Solicitor General advising us that it is the basis of prosecution in approximately one-third of the oil pollution cases reported to the Department of Justice by the Office of the Chief of Engineers. Section 13 codified pre-existing statutes: An 1886 Act (24 Stat. 329) made it unlawful to empty “any ballast, stone, slate, gravel, earth, slack, rubbish, wreck, filth, slabs, edgings, sawdust, slag, or cinders, or other refuse or mill-waste of any kind into New York Harbor” — which plainly includes valuable pre-discharge material. An 1888 Act (25 Stat. 209) “to prevent obstructive and injurious deposits” within the Harbor of New York and adjacent waters banned the discharge of “refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state” — which also plainly includes valuable pre-discharge material. (Emphasis added.) The 1890 Act (26 Stat. 453) made unlawful emptying into navigable waters “any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind . . . which shall tend to impede or obstruct navigation.” Here also valuable pre-discharge materials were included. The 1894 Act (28 Stat. 363) prohibited deposits in harbors and rivers for which Congress had appropriated money for improvements, of “ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state.” (Emphasis added.) This Act also included valuable pre-discharge material. The Acts of 1886 and 1888, then, dealt specifically with the New York Harbor; the scope of the latter was considerably broader, covering as it did the deposit of “any other matter of any kind.” The Acts of 1890 and 1894 paralleled the earlier enactments pertaining to New York, applying their terms to waterways throughout the Nation. • The 1899 Act now before us was no more than an attempt to consolidate these prior Acts into one. It was indeed stated by the sponsor in the Senate to be “in accord with the statutes now in existence, only scattered . . . from the beginning of the statutes down through to the end” (32 Cong. Rec. 2296), and reflecting merely “[v]ery slight changes to remove ambiguities.” Id., p. 2297. From an examination of these statutes, several points are clear. First, the 1894 Act and its antecedent, the 1888 Act applicable to the New York Harbor, drew on their face no distinction between valuable and valueless substances. Second, of the enumerated substances, some may well have had commercial or industrial value prior to discharge into the covered waterways. To be more specific, ashes and acids were banned whether or not they had any remaining commercial or industrial value. Third, these Acts applied not only to the enumerated substances but also to the discharge of “any other matter of any kind.” Since the enumerated substances included those with a pre-discharge value, the rule of ejusdem generis does not require limiting this latter category to substances lacking a pre-discharge value. Fourth, the coverage of these Acts was not diminished by the codification of 1899. The use of the term “refuse” in the codification serves in the place of the lengthy list of enumerated substances found in the earlier Acts and the catch-all provision found in the Act of 1890. The legislative history demonstrates without contradiction that Congress intended to codify without substantive change the earlier Acts. The philosophy of those antecedent laws seems to us to be clearly embodied in the present law. It is plain from its legislative history that the “serious injury”' to our watercourses (S. Rep. No. 224, 50th Cong., 1st Sess., p. 2) sought to be remedied was caused in part by obstacles that impeded navigation and in part by pollution — “the discharge of sawmill waste into streams” (ibid.) and the injury of channels by “deposits of ballast, steam-boat ashes, oysters, and rubbish from passing vessels.” Ibid. The list is obviously not an exhaustive list of pollutants. The words of the Act are broad and inclusive: “any refuse matter of any kind or description whatever.” Only one exception is stated: “other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States.” More comprehensive language would be difficult to select. The word “refuse” does not stand alone; the “refuse” banned is “of any kind or description whatever,” apart from the one exception noted. And, for the reasons already stated, the meaning we must give the term “refuse” must reflect the present codification’s statutory antecedents. The Court of Appeals for the Second Circuit in United States v. Ballard Oil Co., 195 F. 2d 369 (L. Hand, Augustus Hand, and Harrie Chase, JJ.) held that causing good oil to spill into a watercourse violated § 13. The word “refuse” in that setting, said the court, “is satisfied by anything which has become waste, however useful it may earlier have been.” Id., p. 371. There is nothing more deserving of the label “refuse” than oil spilled into a river. That seems to us to be the common sense of the matter. The word “refuse” includes all foreign substances and pollutants apart from those “flowing from streets and sewers and passing therefrom in a liquid state” into the watercourse. That reading of § 13 is in keeping with the teaching of Mr. Justice Holmes that a “river is more than an amenity, it is a treasure.” New Jersey v. New York, 283 U. S. 336, 342. It reads § 13 charitably as United States v. Republic Steel Corp., supra, admonished. We pass only on the quality of the pollutant, not on the quantity of proof necessary to support a conviction nor on the question as to what scienter requirement the Act imposes, as those questions are not before us in this restricted appeal. Reversed. 30 Stat. 1152, 33 U. S. C. §407 (1964 ed.). A man whose “fault was an almost superstitious reverence for the dark technicalities of special pleading.” XV Dictionary of National Biography, p. 226 (Stephen and Lee ed. 1937-1938). The District Court followed the decision of the United States District Court in United States v. The Delvalle, 45 F. Supp. 746, 748, where it was said: “The accidental discharge of valuable, usable oil . . . does not constitute ... a violation of the statute.” (Emphasis added.) The codification did not include the Acts of 1886 and 1888 which pertained only to New York. These remain in effect and are found at 33 U. S. C. §§441-451 (1964 ed.). The New York Harbor statute has been held to apply not only to waste oil which was unintentionally discharged (The Albania, 30 F.2d 727) but also to valuable oil negligently discharged. The Colombo, 42 F. 2d 211. The decisions in the instant case below and in United States v. The Delvalle, supra, n. 3, are against the stream of authority. An unreported decision of a United States District Court in 1922 (United States v. Crouch), holding § 13 inapplicable to polluting but nonobstructing deposits, caused the Oil Pollution Act, 1924, 43 Stat. 604, 33 U. S. C. §431 et seq. (1964 ed.), to be passed. See S. Rep. No. 66, 68th Cong., 1st Sess.; H. R. Rep. No. 794, 68th Cong., 1st Sess. It is applicable to the discharge of oil by vessels into coastal waters but not to deposits into inland navigable waters; and it explicitly provides that it does not repeal or modify or in any manner affect other existing laws. 33 U. S. C. §437 (1964 ed.). “Having dealt with the construction placed by the court below upon the Sherman Act, our jurisdiction on this appeal is exhausted. We are not at liberty to consider other objections to the indictment or questions which may arise upon the trial with respect to the merits of the charge. For it is well settled that where the District Court has based its decision on a particular construction of the underlying statute, the review here under the Criminal Appeals Act is confined to the question of the propriety of that construction.” United States v. Borden Co., 308 U. S. 188, 206-207.

United States v. Standard Oil Co.

Mr. Justice Harlan, whom Mr. Justice Black and Mr. Justice Stewart join, dissenting. Had the majority in judging this case been content to confine itself to applying relevant rules of law and to leave policies affecting the proper conservation of the Nation’s rivers to be dealt with by the Congress, I think that today’s decision in this criminal case would have eventuated differently. The best that can be said for the Government’s case is that the reach of the provision of § 13 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U. S. C. § 407 (1964 ed.), under which this indictment is laid, is uncertain. This calls into play the traditional rule that penal statutes are to be strictly construed. In my opinion application of that rule requires a dismissal of the indictment. I. Section 13 forbids the deposit of all kinds of “refuse matter” into navigable rivers “other than that flowing from streets and sewers and passing therefrom in a liquid state.” As the Court notes, this 1899 Act was part of a codification of prior statutes. This revamping was not discussed at any length on the floor of either House of Congress; the Senate was informed only that the provisions were merely a codification of existing law, without changes in substance. 32 Cong. Rec. 2296-2297 (1899). Section 13 was in fact based on two very similar prior statutes. The rivers and harbors appropriation act of 1890 provided the first national anti-obstruction provision, 26 Stat. 453: “Sec. 6. That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation . . . .” A later statute, § 6 of the Rivers and Harbors Act of 1894, 28 Stat. 363, provided somewhat similarly: “That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress . . . .” The Court relies primarily on the latter Act, contending that its applicability to “any other matter of any kind” would surely encompass oil, even though commercially valuable. Further, the Court notes (ante, p. 228) that the 1894 statute was modeled after a federal statute of 1888 dealing with New York Harbor, 25 Stat. 209. Under this New York Harbor Act, which still remains on the books, 33 U. S. C. § 441 et seq. £1964 ed.), prosecutions for accidental deposits of commercially useful oil have been sustained. The Colombo, 42 F. 2d 211. This background is thought to reinforce the view that oil of any type would fall within the 1894 statute’s purview. Since the present enactment was intended to be merely a codification, the majority concludes that the construction of the broader 1894 predecessor should govern. Whatever might be said about how properly to interpret the 1890 and, more especially, the 1894 statutes, it is the 1899 Act that has been on thé books for the last 67 years, and its purposes and language must guide the determination of this case. To the extent that there were some differences in scope between the 1890 and 1894 Acts, these were necessarily resolved in the 1899 codification, which, while embodying the essential thrust of both prior statutes, appears from its plain language to have favored the more restrictive coverage of the 1890 Act. Moreover, it is questionable to what extent the Court’s speculation as to the meaning of a phrase in one of the prior statutes is relevant at all when the language of the present statute, which is penal in nature, is in itself explicit and unambiguous. The purpose of § 13 was essentially to eliminate obstructions to navigation and interference with- public works projects. This 1899 enactment, like the two preexisting statutes which it was intended to codify, was a minor section attached to a major appropriation act together with other measures dealing with sunken wrecks, trespassing at public works sites, and obstructions caused by improperly constructed bridges, piers, and other structures. These statutes were rendered necessary primarily because navigable rivers, which the Congress was appropriating funds to improve, were being obstructed by depositing of waste materials by factories and ships. It is of course true, as the Court observes, that “oil is oil,” ante, p. 226, and that the accidental spillage of valuable oil may have substantially the same “deleterious effect on waterways” as the wholesale depositing of waste oil. But the relevant inquiry is not the admittedly important concerns of pollution control, but Congress’ purpose in enacting this anti-obstruction Act, and that appears quite plainly to be a desire to halt through the imposition of criminal penalties the depositing of obstructing refuse matter in rivers and harbors. The Court’s construction eschews the everyday meaning of “refuse matter” — waste, rubbish, trash, debris, garbage, see Webster’s New International Dictionary, 3d ed. — and adopts instead an approach that either reads “refuse” out of the Act altogether, or gives to it a tortured meaning. The Court declares, at one point, that “The word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” Ante, p. 230. Thus, dropping anything but pure water into a river would appear to be a federal misdemeanor. At the same time, the Court also appears to endorse the Second Circuit’s somewhat narrower view that “refuse matter” refers to any material, however valuable, which becomes unsalvageable when introduced into the water. Ante, pp. 229-230. On this latter approach, the imposition of criminal penalties would in effect depend in each instance on a prospective estimate of salvage costs. Such strained definitions of a phrase that is clear as a matter of ordinary English hardly commend themselves, and at the very least raise serious doubts as to the intended reach of § 13. II. Given these doubts as to the proper construction of “refuse matter” in § 13, we must reckon with a traditional canon that a penal statute will be narrowly construed. See II Hale, Historia Placitorum Coronae 335 (1736); United States v. Wiltberger, 5 Wheat. 76, 95. The reasons underlying this maxim are various. It appears likely that the rule was originally adopted in order to spare people from the effects of exceedingly harsh penalties. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 (1935). Even though this rationale might be thought to have force were the defendant a natural person, I cannot say that it is particularly compelling in this instance where the maximum penalty to which Standard Oil might be subject is a fine of $2,500. 33 U. S. C. § 411 (1964 ed.). A more important contemporary purpose of the notion of strict construction is to give notice of what the law is, in order to guide people in their everyday activities. Again, however, it is difficult to justify a narrow reading of § 13 on this basis. The spilling of oil of any type into rivers is not something one would be likely to do whether or not it is legally proscribed by a federal statute. A broad construction would hardly raise dangers of penalizing people who have been innocently pouring valuable oil into navigable waters, for such conduct in Florida is unlawful whatever the effect of § 13. A Florida statute penalizing as a misdemeanor the depositing into waters within the State of “any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or live stock . . . ,” Fla. Stat. Ann., §387.08 (1960 ed.), quite evidently reaches the dumping of commercial oil. And Florida’s nuisance law would likewise seem to make this conduct actionable in equity. See, e. g., The Ferry Pass Inspectors’ & Shippers’ Assn. v. The Whites River Inspectors’ & Shippers’ Assn., 57 Fla. 399, 48 So. 643. Finally, as noted earlier, ante, p. 229, n. 5, prior decisions by some lower courts have held § 13 applicable to spillage of oil. For these reasons this justification for the canon of strict construction is not persuasive in this instance. There is, however, a further reason for applying a seemingly straightforward statute in a straightforward way. In McBoyle v. United States, 283 U. S. 25, this Court held that a statute making it a federal crime to move a stolen “motor vehicle” in interstate commerce did not apply to a stolen airplane. That too was a case in which precise clarity was not required in order to give due warning of the line between permissible and wrongful conduct, for there could not have been any question but that stealing aircraft was unlawful. Nevertheless, Mr. Justice Holmes declared that “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” 283 U. S., at 27. The policy thus expressed is based primarily on a notion of fair play: in a civilized state the least that can be expected of government is that it express its rules in language all can reasonably be expected to understand. Moreover, this requirement of clear expression is essential in a practical sense to confine the discretion of prosecuting authorities, particularly important under a statute such as § 13 which imposes criminal penalties with a minimal, if any, scienter requirement. In an area in which state or local law has traditionally regulated primary activity, there is good reason to restrict federal penal legislation within the confines of its language. If the Federal Government finds that there is sufficient obstruction or pollution of navigable waters caused by the introduction of commercial oil or other nonrefuse material, it is an easy matter to enact appropriate regulatory or penal legislation. Such legislation can be directed at specific types of pollution, and the remedies devised carefully to ensure compliance. Indeed, such a statute was enacted in 1924 to deal with oil pollution in coastal waters caused by vessels, 43 Stat. 605, 33 U. S. C. §§ 433, 434 (1964 ed.). To conclude that this attempted prosecution cannot stand is not to be oblivious to the importance of preserving the beauties and utility of the country’s rivers. It is simply to take the statute as we find it. I would affirm the judgment of the District Court. Rivers and Harbors Act of 1899, § 15, 30 Stat. 1152, 33 U. S. C. § 409 (1964 ed.). Rivers and Harbors Act of 1899, § 14, 30 Stat. 1152, 33 U. S. C. §408 (1964 ed.). Rivers and Harbors Act of 1899, § 12, 30 Stat. 1151, 33 U. S. C. §406 (1964 ed.). Congress was presented, when considering one of the predecessors of the 1899 Act, with the representations of the Office of the Chief of Army Engineers that there had been “serious injury to navigable waters by the discharge of sawmill waste into streams .... In fair-ways of harbors, channels are injured from deposits of ballast, steam-boat ashes, oysters, and rubbish from passing vessels.” S. Rep. No. 224, 50th Cong., 1st Sess., 2 (1888). See also H. R. Rep. No. 1826, 55th Cong., 3d Sess., 3-4 (1899). There is no support for the proposition that these statutes were directed at “pollution” independently of “obstruction.” The minimum sentence for an individual convicted of violating § 13 is a $500 fine or 30 days’ imprisonment, not an insignificant penalty for accidentally dropping foreign matter into a river. 33 U. S. C. §411 (1964 ed.). The parties were not in agreement as to what scienter requirement the statute imposes. This question is not before us under the restricted jurisdiction granted to this Court under 18 U. S. C. § 3731 (1964 ed.), see United States v. Petrillo, 332 U. S. 1; United States v. Borden Co., 308 U. S. 188, and the Court today intimates no views on the question. Besides the Florida pollution statute adverted to earlier, Fla. Stat. Ann., §387.08 (1960 ed.), the*city of Jacksonville has enacted ordinances dealing generally with fire prevention, Jacksonville Ordinance Code §§19-4.1 to 19-4.24 (1958 Supp.), disposal of waste material, §21-12 (1958 Supp.), and pollution of the city water supply, §27-52 (1953 Code). See, e. g., special message of the President dealing with new antipollution legislation, Preservation of Our Natural Heritage — Message from the President of the United States, H. Doc. No. 387, 89th Cong., 2d Sess., Cong. Rec., Feb. 23, 1966, pp. 3519-3522.

Sierra Club v. Abston Construction Co.

RONEY, Circuit Judge: In this suit to enforce portions of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.A. §§ 1251-65, 1281-93a, 1311-28, 1341-45, 1361-76, against coal strip miners, the issue is whether pollution carried in various ways into a creek from defendant coal miners’ strip mines is “point source” pollution controlled by the Act. Sediment basin overflow and the erosion of piles of discarded material resulted in rainwater carrying pollutants into a navigable body of water. Since there was no direct action of the mine operators in pumping or draining water into the waterway, the district court by summary judgment determined there was no violation of the Act because there was no “point source” of the pollution. Deciding the district court interpreted too narrowly the statutory definition of the prohibited “point source” of pollution, and that there remain genuine issues of material fact, we reverse. Defendants Abston Construction Co., Mitchell & Neely, Inc., Kellerman Mining Co. and The Drummond Co. [hereinafter miners] operate coal mines near Daniel Creek, a tributary of the Black Warrior River, in Tuscaloosa County, Alabama. They each employ the strip mining technique, whereby rock material above the coal — the overburden — is removed, thereby exposing the coal that is close to the land surface. When the overburden is removed, it is pushed aside, and forms “spoil piles.” During the mining operations, and thereafter if the land is not reclaimed by replacing the overburden, the spoil piles are highly erodible. Rainwater runoff or water draining from within the mined pit at times carried the material to adjacent streams, causing siltation and acid deposits. In an effort to halt runoff, the miners here occasionally constructed “sediment basins,” which were designed to catch the runoff before it reached the creek. Their efforts were not always successful. Rainfall sometimes caused the basins to overflow, again depositing silt and acid materials into Daniel Creek. Plaintiff Sierra Club brought a “citizen suit” under the Federal Water Pollution Control Act Amendments of 1972 (the Act), Claiming defendants’ activities were proscribed “point sources” of pollution. 33 U.S.C.A. §§ 1362(14), 1365(a)(1)(A), (f). The State of Alabama through its attorney general was allowed to intervene with similar claims. On appeal, amicus curiae briefs have been received from the United States and Save Our Cumberland Mountains, Inc. The parties do not dispute the ultimate fact that these pollutants appeared in the creek due to excess rainfall. Nor is there any disagreement the activities would be prohibited if the pollutants had been pumped directly into the waterways. The parties differ only on the legal responsibility of the miners for controlling the runoff and the legal effect of their efforts to control the runoff. Plaintiff may prevail in its citizen suit only if the miners have violated some effluent limitations under the Act. 33 U.S. C.A. § 1365(a)(1)(A). Those limitations, in turn, apply only to “point sources” of pollution, as defined in the Act. The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C.A. § 1362(14). Nonpoint sources, on the other hand, are not due to be controlled. See S.Rep.No.92-414, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 3668, 3744. Thus, the issue is whether defendants’ activities amounted to the creation of point sources of pollution. The district court ruled they did not. On the facts before it, the district court found the pollution had not resulted “from any affirmative act of discharge by the defendants.” Instead, any water and other materials that were deposited in Daniel Creek were carried by natural forces, mostly erosion caused by rainwater runoff, even though such erosion was “facilitated by the acts of defendants of creating pits and spoil banks in the course of their mining operations.” A preliminary question here is whether the Act may be applied to mining activities at all. The district court, although holding the miners here did not create point sources of pollution, conceded, correctly, we think, that “some strip mine operations may involve the discharge of pollutants in ways which would trigger application of the Act’s enforcement provisions.” The 1972 legislation was designed to eliminate “discharge of pollutants into the navigable waters” of the United States by 1985. 33 U.S.C.A. § 1251(a)(1). Under this mandate the Environmental Protection Agency was directed to promulgate regulations governing point source discharges. See Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir.1975); 33 U.S.C.A. §§ 1251, 1314(b). The miners argue that Congress, in section 304(e)(2)(B) of the Act, 33 U.S.C.A. § 1314(f)(2)(B), intended that mining activities not be subject to the Act’s effluent limitations, but that the Environmental Protection Agency only study and propose methods of controlling pollution resulting from mining. The Government points out, however, that an amendment, proposed in the House of Representatives to provide a regulatory program specifically covering coal miners, was withdrawn because it appeared to be duplicative. See Environmental Policy Division, Congressional Research Service, Library of Congress, Legislative History of the Water Pollution Control Act Amendments of 1972, 530-35 (Comm. Print, Senate Committee on Public Works, 93d Cong., 1st Sess. 1973). The EPA has been held to be precluded from exempting from the Act’s permit requirements two other categories of pollution originally designated for further study, agricultural and silvicultural activities. Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977). The district court correctly concluded that mining activities, although embracing at times nonpoint sources of pollution that were intended only to be studied by the EPA, may also implicate point sources of pollution, expressly covered by the Act’s effluent limitations. See generally United States v. Earth Sciences, Inc., 599 F.2d 368, 372-73 (10th Cir. 1979). As to whether the activities here fall under the definition of point sources of pollution, three positions are asserted: plaintiff’s, defendants’, and a middle ground presented by the Government. We adopt the Government’s approach. Plaintiff would merely require a showing of the original sources of the pollution to find a statutory point source, regardless of how the pollutant found its way from that original source to the waterway. According to this argument, the broad drainage of rainwater carrying oily pollutants from a road paralleling a waterway, or animal pollutants from a grazing field contiguous to the waterway, would violate the Act. Whether or not the law should prohibit such pollution, this Act does not. The focus of this Act is on the “discernible, confined and discrete” conveyance of the pollutant, which would exclude natural rainfall drainage over a broad area. Defendants, on the other hand, would exclude from the point source definition any discharge of pollutants into the waterway through ditches and gullies created by natural erosion and rainfall, even though the pollutant and the base material upon which the erosion could take place to make gullies was created by the mine operation, and even though the miners’ efforts may have permitted the rainwater to flow more easily into a natural ditch leading to the waterway. This interpretation, essentially adopted by the district court, too narrowly restricts the proscription of the Act because it fails to consider fully the effect the miners’ activity has on the “natural” drainage. The United States, which participated in the case as amicus curiae, takes a middle ground: surface runoff collected or channeled by the operator constitutes a point source discharge. Simple erosion over the material surface, resulting in the discharge of water and other materials into navigable waters, does not constitute a point source discharge, absent some effort to change the surface, to direct the waterflow or otherwise impede its progress. Examples of point source pollution in the present case, according to the Government, are the collection, and subsequent percolation, of surface waters in the pits themselves. Sediment basins dug by the miners and designed to collect sediment are likewise point sources under the Government’s view even though the materials were carried away from the basins by gravity flow of rainwater. We agree with the Government’s argument. Gravity flow, resulting in a discharge into a navigable body of water, may be part of a point source discharge if the miner at least initially collected or channeled the water and other materials. A point source of pollution may also be present where miners design spoil piles from discarded overburden such that, during periods of precipitation, erosion of spoil pile walls results in discharges into a navigable body of water by means of ditches, gullies and similar conveyances, even if the minera have done nothing beyond the mere collection of rock and other materials. The ultimate question is whether pollutants were discharged from “discernible, confined, and discrete conveyance[s]” either by gravitational or nongravitational means. Nothing in the Act relieves miners from liability simply because the operators did not actually construct those conveyances, so long as they are reasonably likely to be the means by which pollutants are ultimately deposited into a navigable body of water. Conveyances of pollution formed either as a result of natural erosion or by material means, and which constitute a component of a mine drainage system, may fit the statutory definition and thereby subject the operators to liability under the Act. The cases which were not decided until after the district court decision tend to support the view adopted here. In Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979), cert, granted sub nom. Environmental Protection Agency v. National Crushed Stone Association,-U.S.-, 100 S.Ct. 1011, 62 L.Ed.2d 750 (1980), 17 coal producers, among others, challenged regulations promulgated by the Environmental Protection Agency under the Act, claiming the regulations could have been interpreted to apply to surface runoff that does not fit within the point source statutory definition. Specifically, the regulations covered “discharges which are pumped, siphoned or drained from coal storage.” 40 C.F.R. § 434.20 (1979); 604 F.2d at 250. The Fourth Circuit, noting only that the definition of point source “excludes unchan-neled and uncollected surface waters,” Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th Cir. 1976), refused to overturn the regulations on their face, delaying consideration of the issue “in the absence of a full factual background.” 604 F.2d at 249-50. United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979), involved application of the Act to a gold leaching process. There, an unusually rapid melting of snow caused primary and reserve pumps, designed to catch excess runoff and gold leach-ate, to overflow, resulting in the discharge of a pollutant into a creek. The United States brought an enforcement action under the Act, charging the mine had discharged a pollutant into navigable waters from a point source. After disposing of defendant’s argument that mining is strictly a nonpoint source of pollution, the Tenth Circuit considered whether overflows from Earth Science’s operations were point sources, and whether there had actually been a discharge under the Act. Earth Sciences argued the reference to “conveyance” in the point source definition, 33 U.S. C.A. § 1362(14), requires a ditch or pipe, “or some instrument intended to be used as a conduit.” In rejecting defendant’s approach, the court found, The undisputed facts demonstrate the combination of sumps, ditches, hoses and pumps is a circulating or drainage system to serve this mining operation. Despite the large capacity (168,000 gallons for the reserve sump) we view this operation as a closed circulating system to serve the gold extraction process with no discharge. When it fails because of flaws in the construction or inadequate size to handle the fluids utilized, with resulting discharge, whether from a fissure in the dirt berm or overflow of a wall, the escape of liquid from the confined system is from a point source. Although the source of the excess liquid is rainfall or snow melt, this is not the kind of general runoff considered to be from nonpoint sources under the [Act]. 599 F.2d at 374. The court also rejected defendant’s contention that the Act covers only the intentional discharge oflpollutants into navigable waters. Section 1362(12), the court noted, “defines discharge of pollutants as ‘any addition of any pollutant to navigable waters from any point source.’ ” Id. (court’s emphasis). Thus, the court held that even unintentional discharges of pollutants from a mine system designed to catch runoff during periods of excess melting met the statutory definition of a point source. Under the view of the law adopted here, there remain genuine issues of material fact. Viewed in a light most favorable to Sierra Club, the party opposing the motion for summary judgment, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), the affidavits and depositions considered by the district court indicate that significant amounts of dirt, sand and other solid particles were transported from the spoil banks by rainwater to Daniel Creek. Earl Bailey, a Sierra Club vice president and a professor at the University of Alabama, testified by affidavit that he observed gullies and ditches running down the sides of steep spoil piles created by Absten Construction Company. The sedimentation and pollutants are carried through these discernible, confined and discrete conveyances to Daniel Creek. Bailey’s observations of ditches and gullies were confirmed by Philip Absten, president of the Absten Construction Co., who noted that the gullies would carry water and sediment toward the creek. Dwight Hicks, who served as defendant Drummond Co.’s manager of' reclamation and environmental control, testified that in some areas, drainage basins were constructed to catch sediment flowing down the outer edges of the spoil piles. Hicks noted the basins were constructed along a “drainage course,” by placing earthen material on the lower end of a slope. He described construction of the “B-21” dam as follows: [T]hat’s just the general type dam section that is put into the small drainage course with a standpipe and an emergency spillway. The material is either pushed in or hauled in after residual vegetation is removed. It is compacted and a standpipe, the primary means of outflow, is installed, and then an emergency spillway is built around the side of it. Hicks added that in the event of a measurable amount of precipitation, water and small amounts of sediment would drain through the sediment basin outflow. An affidavit filed by Garry Drummond, president of defendant Drummond Co. in support of its motion for summary judgment, contains starkly contrasting language. Neither company has engaged in the operation of any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged. Neither company has discharged any pollutant including surface water runoff into Daniel Creek or the tributaries of the same during the period of operation as noted hereinabove. On some occasions, according to the various affidavits and depositions, severe rainfall caused some of the sediment basins to overflow, spilling out their contents, and again those materials flowed toward the creek. Rainwater trapped in the mine pits themselves also eventually percolated through the banks and flowed toward the creek, carrying with it acid and chemicals from the pit. Thus, additional findings are necessary to determine the precise nature of spoil basins constructed by defendant Drummond. In light of Hicks’s statement that a “standpipe and an emergency spillway” were constructed to guard against spoil basin overflow, we note that a “pipe” from which pollutants are discharged may be a point source of pollution. 33 U.S.C.A. § 1362(14). This design could likewise fit under the Earth Sciences finding that “the escape of liquid from [a] confined system is from a point source,” 599 F.2d at 374, since the affidavits and depositions suggest that water and other materials escaped from the mines and sediment basins, eventually finding their way to Daniel Creek. Furthermore, factual findings are lacking insofar as the sediment basins and other devices may be characterized as encompassing “container[s], . . . from which pollutants are or may be discharged.” 33 U.S.C.A. § 1362(14). While defendants have denied taking any direct action resulting in the discharge of pollutants into Daniel Creek, Bailey described “[m]ine spoil pushed into Daniel Creek so as to block the waterway.” Even under the district court’s requirement that the alleged polluters take some “affirmative act” before a finding of point source pollution is' warranted, the activity described by Bailey suggests a discharge of pollutants into the creek. In considering this issue, the district court should deem controlling § 502(12) of the Act, which, as pointed out by the Earth Sciences court, defines discharge as “any addition of any pollutant to navigable waters . . . .” 33 U.S.C.A. § 1362(12). Although the point source definition “excludes unchanneled and uncollected surface waters,” Consolidation Coal Co., 604 F.2d at 249; Appalachian Power, 545 F.2d at 1373, surface runoff from rainfall, when collected or channeled by coal miners in connection with mining activities, constitutes point source pollution. The district court’s decision is reversed and the case remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED.

Manatee County v. Train

RONEY, Circuit Judge: In April 1971, plaintiff Manatee County, Florida, was awarded a federal grant of 33% of the cost of construction of a sewage treatment plant. In 1972, a statutory amendment increased the possible federal participation to 75% of the cost, conditioned on a state board certification as to need. The sole issue in this case of first impression is whether a district court may properly order the Administrator of the Environmental Protection Agency to pay the increase from 33% to 75% on the basis of a state board certificate which, though regular on its face, is considered to be wrong by the Administrator. In this case, the district court ruled that if the state board certifies in the statutory language, the Administrator is powerless under the law to challenge the correctness of the certification. We affirm. In 1971 Manatee County applied for a federal grant for sewage treatment works construction under the Federal Water Pollution Control Act. In April of 1971 the application was approved for a grant of 33% of the cost of construction, in accordance with the then extant provision of the statute governing the federal share, 33 U.S.C. § 1158 (1970). Thereafter, in 1972, the Act was amended by the Federal Water Pollution Control Act Amendments of 1972 [Pub.L. No. 92 — 500, 86 Stat. 816, 33 U.S.C. §§ 1251 et seq. (Supp. II 1972)]. Subsection 202(a) of the 1972 Amendments [33 U.S.C. § 1282(a) (Supp. II 1972)] provided that the federal share of all subsequent grants would be 75%. Subsection 202(b) [33 U.S.C. § 1282(b) (Supp. II 1972)], directly involved in this appeal, provided that a specified class of grants made prior to July 1, 1971 could be increased to 75%. Since the Federal Water Pollution Control Act has been further amended by the Clean Water Act of 1977 [Pub.L. No. 95-217, 91 Stat. 1611, codified at 33 U.S.C.A. §§ 1251 et seq. (Supp.1978)], we have set out in the notes the language of § 1282(a) and § 1282(b) prior to the 1977 Amendments. All references in this opinion are to the Act as it appeared in 33 U.S.C. §§ 1251 et seq. (Supp. II 1972) at the time suit was brought; references to the Act as amended in 1977 and currently in force are clearly noted as such and are cited to U.S.C.A. Manatee County’s grant fell within the class of grants eligible for increase to 75%. Therefore, Manatee County requested that its grant be increased to 75% under the provisions of § 1282(b). This section provided that grants such as Manatee’s approved after January 1, 1971 and before July 1, 1971, “shall, upon the request of the applicant, be increased” to 75%, if two conditions are met, only the second of which is contested here. That condition requires a State water pollution control agency certificate that the quantity of available ground water will be insufficient without the project. In support of its request, Manatee County submitted the certification of the Florida Pollution Control Board, which had held hearings and certified in the statutory language that The quantity of available ground water is and will be insufficient, inadequate, or unsuitable for public use, including the ecological preservation and recreational use of surface water bodies, unless publicly owned treatment works return effluents to the ground after adequate treatment in Manatee County. The EPA rejected the request. It concedes that all other requirements and conditions have been met, and that the appropriate state agency has certified in the statutory language of § 1282(b)(2). It also concedes that the action of the Florida Board was duly and regularly taken, and that the certification was not fraudulent or criminal. It explained to Manatee County, however, that on the basis of analyses by the EPA’s experts, it had concluded that the quantity of available ground water was not insufficient, and that because of certain geological conditions in Florida, the project could not possibly improve ground water. Manatee County then brought the present action in the nature of mandamus in the district court. Both parties moved for summary judgment. The district court denied the Government’s summary judgment motion and granted summary judgment for Manatee County, citing Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). Congress provided in § 1282(b) that the EPA “shall ” increase project grants to 75% if two conditions are met. “Use of the word ‘shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made.” Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir. 1977). See generally, 73 Am.Jur.2d Statutes §§ 22-25 (1974). It is necessary to look to the wording of a statute, its purposes, and its legislative history to see if any contrary intent is to be found. In the present case, not only is there no indication to the contrary, but the indications show that Congress did intend this to be a mandatory duty. Looking to the specific language employed in Subchapter II of the Act, “Grants for Construction of Treatment Works,” 33 U.S.C. §§ 1281-1292 (Supp. II 1972), it is at once apparent that Congress knew the difference between mandatory and discretionary language. Where Congress wanted to give discretion to the Administrator of the EPA, Congress employed the term “is authorized.” For example, the basic granting provision provides that The Administrator is authorized to make grants to any State, municipality, or intermunicipal or interstate agency for the construction of publicly owned treatment works. 33 U.S.C. § 1281(g)(1) (Supp. II 1972) (emphasis added). The “is authorized” language is employed many times in Subchap-ter II where the Administrator is to have discretion. See 33 U.S.C. §§ 1281(g)(4), 1283(e), 1288(g) (Supp. II 1972). The 1977 Amendments also frequently used the “is authorized” language to give discretionary power. See U.S.C.A. §§ 12810), 1282(a)(3), 1284(b)(6), 1285(g)(1), 1285(g)(2) (Supp. 1978). In addition, the 1977 Amendments use the term “may” in several sections where discretion is to be employed. See 33 U.S.C.A. §§ 1281(h), 1283(a), 1284(b)(3), 1284(b)(5), 1285(g)(2), 1285(h) (Supp.1978). The fact that in the 1977 Amendments Congress distinguished “shall” from “may” shows that in Subchapter II of the Act, Congress used “shall” in its everyday sense, as imposing a mandatory duty on the Administrator. See Train v. City of New York, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975) (holding that the use of the word “shall” in § 1285(a) of Subchapter II of the Act imposes a mandatory duty on the Administrator to allot all the amounts authorized to be appropriated). This conclusion is reinforced by the structure of the Act. Congress intended for the states to have the primary responsibility for planning their construction projects. This was made even clearer by the 1977 Amendments to the Act, which amended the Act’s general declaration of congressional goals and policy, adding the italicized language, to provide: (b) It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution. 33 U.S.C.A. § 1251(b) (Supp.1978). Congress has often followed this policy of giving primary responsibility to the states and only a secondary role to the EPA when dealing with environmental problems. For example, in construing certain provisions of the Clean Air Amendments of 1970, the Supreme Court stated: The Agency [EPA] is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. Under § 110(a)(2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section’s other general requirements. The Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. § 110(c). Thus, so long as the ultimate effect of a State’s choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. Train v. Natural Resources Defense Council, 421 U.S. 60, 79, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731 (1975) (footnote omitted, emphasis in original). This does not mean that any project a state wants funded will be federally funded. Rather, § 1281(g)(1) says that the Administrator “is authorized” to make grants for construction of publicly owned treatment works. Section 1283(a) requires applicants for a grant to submit plans “to the Administrator for his approval,” and § 1284 details the factors which the Administrator is to examine before approving the project. Thus, the Administrator has some discretion in initially approving a state project. It is at this stage that the EPA should prevent projects that are “impossible” or are otherwise inconsistent with the Act’s purpose of improving water quality. Once the Administrator approves the project, however, the percentage amount of the federal share is set by law, without any discretion left in the Administrator. Before the 1972 Amendments, the federal share was set at 33%. The 1972 Amendments increased the federal share for all new projects to 75% automatically without giving the EPA any discretion. For certain interim projects, Congress provided that the federal share would be increased to 75% at the request of the applicant. And for those interim projects approved before July 1, 1971, Congress provided for an increase to 75% if it was a § 1282(b)(1) type project and if the appropriate state agency certified to certain conditions. Thus, the EPA cannot go behind the state certificate because it differs with the state or even because it decides the project as certified by the state agency is “impossible.” Congress delegated this decision to the state agency, not the EPA. It did not require the state agency’s decision to meet with the EPA’s approval, as it did in certain other situations. Compare 33 U.S.C. §§ 1281(g)(3), 1281(g)(5), 1281(g)(6), 1283(a), 1286(f)(1) (Supp. II 1972) (all requiring the state to make showings “to the satisfaction of the Administrator” or giving the EPA authority to approve of state decisions). We conclude that “shall” is used in § 1282(b) in the mandatory sense. The EPA, therefore, must increase Manatee County’s federal grant to 75% because the two conditions imposed by §§ 1282(b)(1) and (2) are met. The EPA’s belief that the state certification is unwise or even that it is impossible for the project to improve ground water is irrelevant and may not be considered. See Union Electric Co. v. EPA, 427 U.S. 246, 257, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) (since the Clean Water Act provides that the EPA shall approve a plan if it meets eight specified criteria, use of the “mandatory ‘shall’ makes it quite clear that the Administrator is not to be concerned with factors other than those specified, and none of the eight factors appears to permit consideration of technological or economic infeasibility.”). Accordingly, the district court correctly ordered the EPA to increase Manatee County’s federal grant to 75% of the project’s cost of construction. AFFIRMED. . Section 202(a) of the 1972 Amendments, 33 U.S.C. § 1282(a) (Supp. II 1972), provides: (a) The amount of any grant for treatment works made under this chapter from funds authorized for any fiscal year beginning after June 30, 1971, shall be 75 per centum of the cost of construction thereof (as approved by the Administrator). Any grant (other than for reimbursement) made prior to October 18, 1972, from any funds authorized for any fiscal year beginning after June 30, 1971, shall upon the request of the applicant, be increased to the applicable percentage under this section. (emphasis added). . Section 202(b) of the 1972 Amendments, 33 U.S.C. § 1282(b) (Supp. II 1972), provides: (b) The amount of the grant for any project approved by the Administrator after January 1, 1971, and before July 1, 1971, for the construction of treatment works, the actual erection, building or acquisition of which was not commenced prior to July 1, 1971, shall, upon the request of the applicant, be increased to the applicable percentage under subsection (a) of this section for grants for treatment works from funds for fiscal years beginning after June 30, 1971, with respect to the cost of such actual erection, building, or acquisition. Such increased amount shall be paid from any funds allocated to the State in which the treatment works is located without regard to the fiscal year for which such funds were authorized. Such increased amount shall be paid for such project only if— (1) a sewage collection system that is a part of the same total waste treatment system as the treatment works for which such grant was approved is under construction or is to be constructed for use in conjunction with such treatment works, and if the cost of such sewage collection system exceeds the cost of such treatment works, and (2) the State water pollution control agency or other appropriate State authority certiñes that the quantity of available ground water will be insufficient, inadequate, or unsuitable for public use, including the ecological preservation and recreational use of surface water bodies, unless effluents from publicly-owned treatment works after adequate treatment are returned to the ground water consistent with acceptable technological standards. (emphasis added).

Manatee County v. Train

JAMES C. HILL, Circuit Judge, specially concurring. I concur in the opinion prepared for us by Judge Roney and in the result reached. I am persuaded, however, that these additional remarks are pertinent. We have, today, decided this case by an even-handed application of the law, as enacted by the Congress, to the material facts which are not in dispute. The dispute revealed in the record is not pertinent to our judicial function. The Administrator’s contentions question the wisdom of the law insofar as it leaves it to a sovereign state to act responsibly towards the taxpayers of the entire nation. The Administrator asserts that the state board has irresponsibly granted a certificate, certifying to an absurdity, in order to divert the funds of the country’s taxpayers to payment for an improved facility in that state. Finding that, under 33 U.S.C. § 1282(b), the state board’s certificate is controlling, we do not address and we do not decide whether or not the Administrator’s charges have any merit. Those assertions test the wisdom of the Congress in having given the state important rights, and corresponding duties, in determining whether or not a state project is entitled to a higher share of federal taxpayer’s money. If, as, the federal party suggests, the state board will not act responsibly in the face of such a provincial temptation, the Congress may be compelled to retreat from granting local rights and repair to more centralized federal control. That will be determined by what the Congress perceives to be the degree of responsibility displayed by the states. With the helpful counsel of able attorneys, we have found and applied the law. If that law be unwise, as to which we express no opinion, we have every confidence that those who work under Article I of the Constitution will deal further with the matter.

State Water Control Board v. Train

DONALD RUSSELL, Circuit Judge: The State Water Control Board of the Commonwealth of Virginia brought this action against the Administrator of the United States Environmental Protection Agency (EPA) on behalf of the Commonwealth of Virginia and certain of her political subdivisions, seeking a declaration that the effluent limitations of Section 301(b)(1) of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) do not apply to publicly owned sewage treatment plants which have not received federal grants under Title II of the FWPCA. The district court denied the relief sought and the Board appeals. For the reasons stated below, we affirm. I. The FWPCA seeks to eliminate the discharge of pollutants into the navigable waters by 1985 in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” As an initial step toward that goal, Section 301(b)(1)(B) requires publicly owned treatment works to achieve, by July 1,1977, the degree of effluent reduction attainable through application of secondary treatment. In addition, such plants must satisfy any limitations which are necessary to implement any applicable water quality standard. These criteria are applied to individual treatment plants primarily through the national permit system established by Section 402. Under that system, no person may discharge pollutants without a permit issued by EPA or an EPA-approved state permit program. Section 402 requires that such permits be conditioned on compliance with the requirements of, inter alia, Section 301. Discharge of pollutants without a permit or in violation of a permit condition may result in civil and criminal penalties as well as injunctive sanctions. To assist in financing the facilities necessary to accomplish the effluent reductions mandated by Section 301, Title II of the Act establishes a program of federal grants to states, municipalities and intergovernmental agencies for the construction of publicly owned treatment plants. Section 202(a) provides that the amount of any grant made under this program shall be 75% of approved construction costs; and Section' 207 authorizes the appropriation of $18 billion for fiscal years 1973 through 1975 for such grants. Unfortunately, however, the grant program's effectiveness in facilitating compliance with the 1977 effluent limitations has been limited. Grants have not been available for many construction projects because the money authorized by Section 207 is insufficient to finance 75% of the cost of every needed sewage treatment plant in the country. Moreover, disbursement of the authorized funds has been substantially delayed by Presidential impoundment and by the time consumed by administrative processing of grant applications. These problems, together with the fiscal difficulties now confronting most State and local governments, have made it economically impossible for many localities to accomplish the required effluent reductions by the 1977 deadline. Motivated by this circumstance, appellant contends that, under a proper construction of the Act, receipt of Title II grant money is a condition precedent to the duty to comply with the 1977 effluent standards. We cannot agree. II. Our analysis begins with the undisputed fact that appellant’s position is not supported by the text of the statute. Section 301(b)(l)’s effluent limitations are, on their face, unconditional; and no other provision indicates any link between their enforceability and the timely receipt of federal assistance. Appellant, relying on the Act’s legislative history, asks us to hold that such a link is, nevertheless, implicit in the statutory scheme. However, as the following discussion demonstrates, that history actually tends to reinforce the “plain meaning” of the text. As the Third Circuit has noted, “all discussion of this date [the July 1, 1977 deadline] in the legislative history indicates that Congress viewed it as an inflexible target.” Bethlehem Steel Corp. v. Train (3d Cir. 1976) 544 F.2d 657, 661. The House committee report on the bill which became the FWPCA states: It is the intention of the Committee that the requirements of section 301(b)(1)(A) and (B) be met by phased compliance between the date of enactment . and January 1,1976, [now July 1,1977] so that all point sources will be in full compliance no later than [July 1, 1977], except as any extension of time for compliance may be made in accordance with section 301(b)(3). [H.R.Rep. No. 92-911, 92d Cong., 2d Sess., reprinted at S. Comm, on Public Works, 93rd Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, 788 (Comm. Print, 1973) (2 vols.) (hereinafter cited as “Legis.Hist.”)] [Emphasis added.] Senator Muskie, a principal author of the Act, commented that the July 1, 1977 deadline does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977 . . . [Legis.Hist. 162] [Emphasis added.] And finally, the Senate Report notes that the EPA must act quickly in determining whether particular point sources must satisfy the technology-base standards of Section 301(b)(1)(A) and (B) or more stringent water quality-based effluent limits under Section 301(b)(1)(C) because [t]he deadlines established to achieve effluent limitations are strict [and] [s]ources of pollution, whether they are cities or industries, must know what the requirements are in order to proceed on schedule with their construction program. [S.Rep. No. 92-414, 92d Cong., 2nd Sess., U.S. Code Cong. & Admin.News 1972, pp. 3668, 3710 (1971), Legis.Hist. 1462.] More importantly, Congress actually declined to write the statute as appellant would now have us construe it. During hearings on the House bill, William Ruckelshaus, then head of EPA, and appellee Train, then Chairman of the Council on Environmental Quality, urged that the Act permit extension of the 1977 deadline in cases where, despite good faith efforts, compliance is impossible. Significantly, Mr. Ruckelshaus also recommended that “the secondary treatment requirement [of Section 301(b)(1)(B)] should only apply to projects for which new Federal grants are provided.” The bill which the House subsequently passed empowered EPA to extend the 1977 deadline for up to two years in cases where compliance is physically or legally impossible; but, despite the recommendation of Mr. Ruckelshaus, it did not limit the applicability of Section 301(b)(1)(B) to those facilities receiving federal assistance. Moreover, even the provision authorizing case-by-case extension of the deadline was later deleted without comment by the Conference Committee. This clearly provides strong support for the conclusion that Congress meant for the July 1, 1977 deadline to be rigid and that it did not intend that sewage treatment plants not receiving timely federal grants should be exempt from that deadline. See, e.g., Gulf Oil Co. v. Copp Paving Co. (1974) 419 U.S. 186, 199-200, 95 S.Ct. 392, 42 L.Ed.2d 378 and Bethlehem Steel Corp. v. Train, supra at 662. See, also, Youngstown Co. v. Sawyer (1952) 343 U.S. 579, 586 & 602-609, 72 S.Ct. 863, 96 L.Ed. 1153. Appellant argues, however, that Congress would have so intended if it had foreseen the funding delays and shortfalls which have plagued the grant program. Like the court below, we are not convinced that Congress was, in fact, unaware that some necessary projects might not receive timely grants. Nor, accepting that premise, is there any reason to believe that Congress would have expressly provided the blanket exemption now advocated by appellant if it had been accurately forewarned about the deficiencies which have surfaced in the grant program — it seems more likely that Congress’ response, if any, to such forewarning would have been to retain the provision of the House bill empowering EPA to extend the deadline on a case-by-case basis where compliance is impossible. But in any event, we do not think that, on the record before us, it is within our judicial function to speculate as to how Congress might have written the statute had it been more prescient. Where, as here, Congress has chosen not to incorporate a suggested provision into legislation, we must abide by that decision even though it appears in retrospect to have been based on a false premise. Cf. Youngstown Co. v. Sawyer, supra. In such cases, reconsideration of the matter is a task for Congress, not the courts. III. Our holding in this case does not mean that, absent Congressional action, severe sanctions will inevitably be imposed on municipalities who, despite good faith efforts, are economically or physically unable to comply with the 1977 deadline. We fully expect that, in the exercise of its prosecutorial discretion, EPA will decline to bring enforcement proceedings against such municipalities. Furthermore, in cases where enforcement proceedings are brought, whether by EPA or by private citizens, the courts retain equitable discretion to determine whether and to what extent fines and injunctive sanctions should be imposed for violations brought about by good faith inability to comply with the deadline. In exercising such discretion, EPA and the district courts should, of course, consider the extent to which a community’s inability to comply results from municipal profligacy. CONCLUSION For the reasons stated, we conclude the appellant is not entitled to the relief requested. Accordingly, the judgment of the district court is AFFIRMED. . The FWPCA is codified as 33 U.S.C. § 1251, et seq. Section 301(b)(1) is 33 U.S.C. § 1311(b)(1). . Title II is codified as 33 U.S.C. §§ 1281-1292. . The complaint requested the district court to declare, inter alia, that for each publicly-owned sewage treatment plant that cannot be put into compliance with the July 1, 1977, deadline under § 301(b)(1)(B) of the Act, such plant shall not be required to comply with applicable limitations under [that section] until such time as federal grant funds are available in an amount sufficient to underwrite 75% of the eligible cost of construction thereof and a reasonable time has been allowed to complete the necessary construction. . The district court’s opinion is reported at 8 E.R.C. 1609. . FWPCA § 101(a)(1), 33 U.S.C. § 1251(a)(1). . The Act contemplates a two-phase reduction in pollutant discharges. Second phase standards, to be achieved by July 1, 1983, are set forth by FWPCA § 301(b)(2), 33 U.S.C. § 1311(b)(2). They are not directly in issue here. . Point sources other than publicly owned treatment works are subject to FWPCA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A), which mandates application, by July 1, 1977, of “the best practicable control technology currently available.” The term “point source” refers to “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” FWPCA § 502(14), 33 U.S.C. § 1362(14). . The degree of effluent reduction attainable through the application of secondary treatment is determined by reference to information published by EPA pursuant to FWPCA § 304(d)(1), 33 U.S.C. § 1314(d)(1). . FWPCA § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C). “Water quality standards” relate to the characteristics of the body of water into which pollutants are being discharged. “Effluent limitations,” on the other hand, are restrictions on the type and amount of pollutants which may be discharged from a particular point source. For discussion of the differences between effluent limitations based on water quality standards and technology-based effluent limitations such as those established by FWPCA § 301(b)(1)(A) & (B), see, e. g., Davis and Glasser, The Discharge Permit Program Under the Federal Water Pollution Control Act of 1972— Improvement of Water Quality Through the Regulation of Discharges from Industrial Facilities, II Fordham Urban L. J. 179, 189-235 (1974). . 33 U.S.C. § 1342. . See FWPCA §§ 301(a) and 402(a) and (b), 33 U.S.C. §§ 1311(a) and 1342(a) and (b). . The Act authorizes civil actions against violators by EPA, FWPCA § 309(b), 33 U.S.C. § 1319(b), or by private citizens, FWPCA § 505, 33 U.S.C. § 1365. In such suits, the court can impose civil penalties as great as $10,000 for each day that a violation has existed and can enjoin further violations. A successful private plaintiff may be awarded attorney’s fees and costs, FWPCA § 505(d), 33 U.S.C. § 1365(d). . 33 U.S.C. § 1282(a). . FWPCA § 204, 33 U.S.C. § 1284, sets forth limitations and conditions for the approval of individual grants. . 33 U.S.C. § 1287. . FWPCA § 205(a), 33 U.S.C. § 1285(a), directs EPA to allot the authorized funds among the States in direct proportion to the cost of needed facilities in each. For an individual project to receive a grant out of its State’s allotment, the appropriate State agency must certify that it is entitled to priority over other projects in the State, FWPCA § 204(a)(3), 33 U.S.C. § 1284(a)(3). . Appellant asserts that the “federal share” of the construction costs of all needed facilities in Virginia exceeds Virginia’s allotted share of the authorized funds by approximately $1.063 billion. . After the Act was passed over his veto, President Nixon, by letter dated November 22, 1972, directed the Administrator to allot among the States “[n]o more than $2 billion of the [$5 billion] authorized for the fiscal year 1973, and no more than $3 billion of the [$6 billion] authorized for the fiscal year 1974. .” For fiscal year 1975, the Administrator allotted only $4 billion of the $7 billion authorized for that year. However, Train v. City of New York (1975) 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 held that the Administrator lacks authority to allot less than the amounts specified by Section 207 and the impounded funds were finally allotted in fiscal year 1976. . The district court found that approval of a grant request requires approximately six months to one year. . Relying on Caminetti v. United States (1917) 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 appellee and amicus curiae suggest that we need not even consider the legislative history cited by appellant because the text of the statute is unambiguous. But, whatever may have been the rule at the time of Caminetti and United States v. Missouri Pacific R. Co. (1929) 278 U.S. 269, 278, 49 S.Ct. 133, 73 L.Ed. 322 (setting forth the standard formulation of the “plain meaning rule”), it is now settled that available extrinsic interpretive aids may not be disregarded even though the statutory language appears to have a “plain meaning” which does not lead to an absurd result. See, e. g., U. S. v. Amer. Trucking Ass’ns (1940) 310 U.S. 534, 543-4, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345: When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.” Accord, Train v. Colorado Pub. Int. Research Group (1976) 426 U.S. 1, 96 S.Ct. 2040, 48 L.Ed.2d 597 (holding that court of appeals erred in relying on the “plain meaning” of a statute when the legislative history clearly indicated another meaning) and McMann v. United Air Lines, Inc. (4th Cir. 1976) 542 F.2d 217, 221. See also Murphy, Old Maxims Never Die: The “Plain Meaning Rule" and Statutory Interpretation in the “Modern” Federal Courts, 75 Col.L. Rev. 1299 (1975). However, the words of the statute remain the most persuasive indication of Congressional intent, and their apparent meaning should be rejected only on substantial, unambiguous evidence supporting a contrary interpretation. See Gemsco, Inc. v. Walling (1945) 324 U.S. 244, 260, 65 S.Ct. 605, 614, 89 L.Ed. 921: The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction, and United States v. Dickerson (1940), 310 U.S. 554, 562, 60 S.Ct. 1049, 1038, 84 L.Ed. 1356: Legislative materials may be without probative value, or contradictory, or ambiguous . . . and in such cases will not be permitted to control the customary meaning of words or overcome rules of syntax or construction found by experience to be workable Cf. Securities and Exchange Com’n. v. Sterling Precision Corp. (2d Cir. 1968) 393 F.2d 214, 218. Thus, where the legislative history is conflicting or of uncertain significance, doubts should be resolved in favor of a normal reading of the statutory language. . Section 301(b)(3) of the House bill was not enacted into law. See text accompanying notes 27 and 28, infra. . Similarly, Congressman Jones a member of the Senate-House Conference Committee, stated: It is the intention of the managers that the July 1, 1977, requirements be met by phased compliance and that ail point sources will be in full compliance no later than July 1, 1977. [Legis.Hist. at 231.] [Emphasis added.] . See notes 7-9 and accompanying text supra. . Letter from William D. Ruckelshaus, Administrator, EPA, to John A. Blatnik, Chairman, Committee on Public Works, House of Representatives, dated December 13, 1971, Legis. Hist. 1191-1208 at 1197; and Testimony of Russell Train, Chairman, Council on Environmental Quality, Legis.Hist. 1115. . Legis.Hist. 1197. . H.R. 11896, 92d Cong., 2d Sess. (1972), Leg-is.Hist. 893-1110. . In pertinent part, H.R. 11896 § 301(b)(3), 964-965, provided: The Administrator may extend for any point source the dates prescribed in subparagraphs (A) and (B) of paragraph (1) of this subsection. No extension or extensions of such date shall exceed a total of two years from the date prescribed in such subparagraph. Public hearings must be held by the Administrator in connection with any such extension prior to granting such extension. No extension shall be granted unless the Administrator determines . . . that it is not possible either physically or legally to complete the necessary construction within the statutory time limit. . . Extension of the deadline on a case-by-case basis as authorized by H.R. 11896 § 301(b)(3), note 27 supra, is, of course, not the same as a blanket exemption for municipalities not receiving timely grants. While many municipalities may be unable to comply with the 1977 deadline without timely federal assistance, there is no reason to suppose, a priori, that this will be true in every case. Appellant’s construction, however, would create a conclusive presumption to that effect. . The Act’s legislative history is, as appellant stresses, replete with statements that the level of funding was based on a careful evaluation of the nation’s water treatment needs. See, e. g., Legis.Hist. 115-22, 164, 265-66, 365-67, and 1452. It would appear, however, that most, if not all, of those comments were intended to refute the notion that the Act authorized overspending. Thus, while they establish that Congress knew that the grant program would need at least $18 billion, they do not prove that it thought that no more than that amount would be required. Indeed, given Congress’ desire to avoid a Presidential veto on the ground of overspending, see Legis.Hist. 165-66 and Letter from Senator Muskie to President Nixon, dated October 10, 1972, Legis.Hist. 141, it would not be unreasonable to surmise that it consciously chose to authorize a conservative level of funding. See Legis.Hist. 165 (remarks of Senator Muskie): [A] Federal commitment of $18 billion . was the minimum amount needed to finance the construction of waste treatment facilities which will meet the standards imposed by this legislation. * * * * * % [T]he conferees are convinced that the level of investment that is authorized is the minimum dose of medicine that will solve the problems we face. [Emphasis added.] Moreover, the report of the Senate Public Works Committee clearly indicates an awareness that the authorized funds might be insufficient to provide grants for all necessary construction: The Committee asked the National League of Cities — United States Conference of Mayors to survey their members’ cities to determine the need for Federal construction grant assistance. That study, . . identified and estimated a waste treatment backlog of $33-$37 billion. While the funds authorized by this Act will not provide full Federal assistance to retire a backlog of that magnitude there should be adequate funds for communities to make major inroads into their construction backlog and begin to achieve the kind of a program anticipated by this legislation. [S.Rep.No. 92-414, 92d Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1972, p. 3701 (1971), Legis.Hist. 34-35.] Several individual congressmen made similar comments. See, e. g., Legis.Hist. 216 (remarks of Senator Bayh): Under the provisions of the bill, the allotments for my own State of Indiana for fiscal years 1974 and 1975 will amount to approximately $370 million — not enough to meet every need in my State, to be sure, but enough to make a very significant contribution to solving the problems we have, and Legis.Hist. 100 (remarks of Congressman Fraser): Minnesota’s plans for construction of 140 sewage treatment plants will require $212 million in the coming year. Seventy-five percent of this — the maximum Federal share— would come to $159 million. Under [this] bill, Minnesota would be eligible for about $100 million. . It is conceivable that, given such forewarning, Congress would have chosen nevertheless to leave the statute as written, trusting to prosecutorial and judicial discretion to relieve any resulting inequities in individual cases, see notes 34 and 35 and accompanying text, infra. Indeed, if it is concluded that Congress did, in fact, foresee that the authorized funds might be insufficient to provide grants to all necessary projects, see note 29 and accompanying text, supra, then it is at least arguable that Congress consciously chose to do just that. . See notes 26-27 and accompanying text, supra. . We note that recent bills intended to alleviate the problems which underlie this suit have employed the case-by-case approach rather than the blanket exemption advocated by appellant. See, H.R. 9560, 94th Cong., 2d Sess. § 13 (1976), and H.R. 3199, 95th Cong., 1st Sess. § 13 (1977) (now pending). . Congress is, in fact, currently considering legislation which would deal with the problems faced by municipal dischargers. See H.R. 3199, 95th Cong., 1st Sess. (1977) which was reported with approval to the full House by the Public Works Committee on March 29, 1977, H.R.Rep.No. 95-139, 95th Cong., 1st Sess. (1977). Section 9 of H.R. 3199 authorizes $11 billion in funding for the grant program for fiscal years 1977-79. More importantly, H.R. 3199 § 13 authorizes EPA to extend the July 1, 1977 deadline for up to five years (six years in some instances) in cases where construction cannot be completed by the deadline. H.R. 3199 is substantially the same as H.R. 9560, 94th Cong., 2d Sess. (1976) which passed the House by a wide margin but died in Conference. . For authority that EPA does have such discretion, see, e. g., Committee for the Consid. of Jones Falls Sew. Sys. v. Train (D.Md.1975) 387 F.Supp. 526, 529; Sierra Club v. Train (D.Ala. 1975) (No. 75-C-802); K. Davis, Administrative Law Treatise, § 4.07 (1958); id. (Supp. 1970). . Of course, such discretion must be exercised on a case-by-case basis and not in a suit such as this, seeking a blanket exemption. There is no conclusive presumption that a municipality not receiving timely federal assistance is economically unable to comply with the 1977 deadline.

Dobbs v. Costle

DUMBAULD, Senior District Judge. This is an appeal by defendant Environmental Protection Agency administrators from a summary judgment of the District Court for the Northern District of Georgia, Atlanta Division, dated October 24, 1975, against them in favor of a Georgia municipality which had constructed a sewage facility for which it claimed a federal subsidy under the terms of Section 206(a) of the Federal Water Pollution Control Act, as added in Title II thereof by the Federal Water Pollution Control Act Amendments of 1972, approved October 18,1972, 86 Stat. 838, 33 U.S.C. § 1286(a). That section reads: Any publicly owned treatment works in a State on which construction was initiated after June 30, 1966, but before July 1, 1972, which was approved by the appropriate State water pollution control agency and which the Administrator finds meets the requirements of section 8 of this Act in effect at the time of the initiation of construction shall be reimbursed a total amount equal to the difference between the amount of Federal financial assistance, if any, received under such section 8 for such project and 50 per centum of the cost of such project, or 55 per centum of the project cost where the Administrator also determines that such treatment works was constructed in conformity with a comprehensive metropolitan treatment plan as described in section 8(f) of the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of the Federal Water Pollution Control Act Amendments of 1972. Nothing in this subsection shall result in any such works receiving Federal grants from all sources in excess of 80 per centum of the cost of such project. (Italics supplied) Section 212(1) of Title II provides a definition of the term “construction” as used in that Title: As used in this title— (1) The term “construction” means any one or more of the following: preliminary planning to determine the feasibility of treatment works, engineering, architectural, legal, fiscal, or economic investigations or studies, surveys, designs, plans, working drawings, specifications, procedures, or other necessary actions, erection, building, acquisition, alteration, remodeling, improvement, or extension of treatment works, or the inspection or supervision of any of the foregoing items'. These statutory provisions are dispositive of the case at bar, which raises solely a question of law, there being no contest as to the operative facts. These are summarized as follows in the opinion of the District Court: The chronological order of events in regard to construction of the sewage treatment plant is not in dispute. Beginning in January, 1971, the City proposed a rate revision to provide funds for a bond issue for the sewer construction. The funds from the sale of the bonds were received on November 29,1971. On March 12, 1971, an engineering contract was signed between the City and Walker & Associates to provide the design and specifications for the sewer construction. On March 16, 1971, a grant offer was made to the City by the EPA and accepted on April 5, 1971. On September 13, 1971, the soil testing and exploratory boring were completed by the Georgia Testing Laboratory. On December 16, 1971, the plans and specifications for the construction were submitted to the EPA for review. After several submissions and revisions, the EPA finally approved the plans and specifications for the sewage treatment plant on May 9, 1972. On May 23, 1972, advertisements for bids were submitted. On July 11, 1972, the bids were received and publicly opened for the treatment plant and outfall line. On July 17, 1972, the construction contracts were awarded subject to the approval of the EPA. On September 20,1972, a work order was issued to Christopher Construction Co. to begin physical construction on the treatment plant and on October 2, 1972, a work order was issued to C. F. W. Construction Company to begin physical construction on the outfall line. The final cost of construction for the Dried Indian Creek project was $1,374,-432.69. The EPA has agreed to pay the City of Covington thirty-three per cent (33%) of this amount. The amount here in controversy is $302,375.19, or twenty-two per cent (22%) of the foregoing construction cost, representing the difference between the amount EPA has agreed to reimburse the City and the fifty-five per cent (55%) amount to which the City believes it is entitled under Section 206 of the Act. Defendants rely upon an EPA regulation which defines “initiation of construction” as “the issuance to a construction contractor of a notice to proceed, or, if no such notice is required, the execution of a construction contract.” If the regulation were accepted as controlling, plaintiffs would obviously lose, for the date when actual physical construction began was after work orders were issued on September 20, 1972, and October 2, 1972, following contracts executed on July 17, 1972. These dates are all posterior to the cutoff date of July 1, 1972, prescribed in Section 206(a). But if the broader definition of “construction” contained in the statute (which embraces and includes various preliminary steps as part of the defined concept) is accepted, plaintiffs win; for the summary of uncontested facts, as set forth in the extract from the District Court’s opinion quoted above, clearly shows that many of the preliminary steps specified in the statutory definition were completed and consummated before July 1, 1972. And we are persuaded that the District Court was correct in choosing to give effect to the statute rather than the regulation. The District Court reviewed and gave appropriate weight to cases enunciating the maxim that deference is due to a long-standing administrative construction of a statute, but could not ignore the equally valid maxim that such deference is not to be accorded to an administrative construction which is plainly wrong, or contrary to the clear terms of the statute. U. S. v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957); Dixon v. U. S., 381 U.S. 68, 73-74, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). In case of conflict between regulation and statute, the simple rule laid down long ago by Chief Justice John Marshall is controlling: “that which is not supreme must yield to that which is supreme.” Brown v. Maryland, 12 Wheat. 419, 448, 6 L.Ed. 678 (1827). In Section 206(a) Congress is using language in its ordinary meaning. “Initiation of construction” is not »a talismanic formula or an exotic term of art. It simply means the “beginning” or “commencement” of construction. It is the terminus a quo from and after which the existence of construction is established. When “construction” has “started” or “begun” or “commenced” or “been initiated,” it is nothing other or different in its quality or nature than “construction” as defined in the definition of “construction” set forth in Section 212(1). As the District Court pointed out, there is no difference in meaning between the word “construction” when used in the phrase “construction was initiated” at the outset of Section 206(a) and when used in the phrase “initiation of construction” further on in that Section. The meaning would be the same if the latter phrase were replaced by the words previously used, so that the wording of the latter passage would be “at the time when construction was initiated” instead of “at the time of the initiation of construction.” For the statutory definition in Section 212(1) is by its terms applicable wherever the word “construction” is “used in this title.” That means throughout the entire Title. Section 206(a) is included in Title II of the Act. It would be anomalous if the same word were used in two different meanings within a single sentence of Section 206(a); and if Congress had meant to employ such an extraordinary procedure it certainly would have given some clear indication of such an unusual intention. Defendant’s arguments have little persuasiveness as a matter of law, but really raise questions of policy, expediency, and convenience. It is urged that the statutory definition merely indicates what kinds of work can be included within the scope of a federally reimbursable project, but cannot be utilized to determine whether the project is eligible for reimbursement at all under the statutory time limits; that if reimbursement for preliminary steps were permitted, huge claims might be asserted for preliminary work on projects which never were pressed to completion, and thus diminish the funds available for completed projects; that it is easy to enumerate and monitor all reimbursable projects by uniformly using as a criterion the date when contracts were executed or work orders issued, since these are easily determinable and well-documented events, whereas the scope of inquiry would be broadened and rendered more indefinite if account had to be taken of all the preliminary steps specified in the statutory definition. The matters dwelt on by defendants are doubtless important from an administrative or fiscal standpoint, but are not controlling insofar as interpretation of the statutory language is concerned. Administrative convenience cannot outweigh legal rights. Goldberg v. Kelly, 397 U.S. 254, 265-66, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). And it is for Congress to determine how much financial support is to be given to anti-pollution projects. If Congress chooses to finance preliminary planning or only completed works, the decision rests with the legislative branch. For a considerable period of time effectuation of federal anti-pollution policy was hampered by lack of adequate appropriations. If Congress chooses to adopt a contrary course by authorizing over-generous grants to encourage effective action to remedy serious national environmental problems, neither the courts nor the EPA should undertake to frustrate the legislative will. The arguments which defendants advance here would be more appropriate in another forum. For the foregoing reasons the judgment of the District Court is affirmed. . Section 8 provided technological standards which had to be met in order to qualify for federal subsidy. In its original form it was Section 6 of the Water Pollution Control Act of June 30, 1948, 62 Stat. 1158-59. Subsequently amended by the Acts of July 9, 1956, 70 Stat. 502-503 [where the definition of “construction” first appeared as Section 6(e), at 70 Stat. 503]; July 20, 1961, 75 Stat. 204, 206-207; October 2, 1965, 79 Stat. 903, 906-907 [where Section 6 was redesignated as Section 8]; November 3, 1966, 80 Stat. 1249-50; and April 3, 1970, 84 Stat. 113-14. See 33 U.S.C.A. § 1158. . 86 Stat. 844. This definition originated in Section 6(e) as amended by the Act of July 9, 1956, 70 Stat. 503. . Joint Appendix, 28-29. . 40 C.F.R. § 35.890, modeled on 40 C.F.R. 35.805-1, promulgated under the statute in effect before the 1972 amendments. . The utility of maxims in resolving questions of statutory construction is rather limited. The true criterion is the intention of the lawmaker as expressed in the words used under the particular circumstances of the enactment. There is no better technique than the “threefold imperative” prescribed by Justice Frankfurter: “(1) Read the statute; (2) read the statute; (3) read the statute!” Henry J. Friendly, Benchmarks (1967) 202. . See City of Yonkers v. U. S., 320 U.S. 685, 698, 64 S.Ct. 327, 88 L.Ed. 400 (1944). . This interpretation is buttressed by the legislative history of the statute. The Conference Committee Report (No. 92-1236, see 2 U.S. Code Cong. & Admin.News, p. 3792) uses the word “started” in explaining Section 206(a): “the conference substitute provides that any publicly owned treatment works on which construction was started after June 30, 1966, but before July 1, 1972” etc. (Italics supplied). . Just as Land’s End is the beginning of England to an approaching vessel but the initial portion of that “scepter’d isle” is no more and no less England than the Midlands or any other part of the country. . Joint Appendix, 36. . In any event, that question is not now before this Court. The Covington project is completed. . 2 U.S.Code Cong. & Admin.News, pp. 3672, 3698 (Senate Report No. 92-414).

Maine v. Fri

LEVIN H. CAMPBELL, Circuit Judge. For the second time, the Administrator of the Environmental Protection Agency (EPA) appeals from the district court’s interim order of June 29, 1973, requiring him to allot $29,025,000 to Maine in fiscal year 1973 for purposes of the Water Pollution Control Act Amendments of 1972, 33 U.S.C. (Supp. II, 1972) § 1281 et seq. (the “Act”). The order, issued several days before the end of the federal fiscal year, also provides that none of the funds so allotted will be available for obligation until further order of court. We dismissed an earlier appeal for lack of appellate jurisdiction. 483 F.2d 439 (1st Cir. 1973). Several months having passed without further hearing or action in or by the district court, we are now persuaded that the order was or has become an appeal-able preliminary injunction. Id. p. 440. Maine brought the present suit after the then acting Administrator of the EPA, at the express direction of the President of the United States, had allptted among the states, for the purposes of the Act, two billion dollars for fiscal 1973 and three billion dollars for fiscal 1974. Section 207 of the Act provides that “[t]here is authorized to be appropriated to carry out this subchapter . for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, [and] for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, . . . ” Maine contends that the President and the Administrator lack authority to reduce the 1973 and 1974 allotments below the sums authorized to be appropriated, especially since § 205 provides: “Sums authorized to be appropriated pursuant to § 207 for each fiscal year . shall be allotted by the administrator . ” [Emphasis supplied.] The merits of Maine’s claim have yet to be heard. The district court has informed the parties that it will expedite their determination. The only question before us is the appropriateness of the preliminary order directing, in effect, a “paper allotment” of the disputed funds. Maine sought the interim relief because of its fear that if the Administrator was not ordered to make a formal allotment — essentially a bookkeeping entry — before the end of fiscal 1973 on June 30, 1973, the funds might irretrievably be lost. Thereafter the court held a hearing on July 6, 1973, on the Administrator’s motion to vacate the temporary order. It denied the motion. We are satisfied that the order was issued in substantial compliance with required procedures, and that the district court did not abuse its discretion in issuing it. The Administrator attacks the order on both procedural and substantive grounds. His procedural attack is that the district court’s order, constituting what is by now a preliminary injunction, should be vacated because it was entered without setting out the factual premises and legal conclusions on which it was based, as required by F.R. Civ.P. 52(a). Although the government’s opportunity to present its side before the order issued may have been cramped by the short notice, it had full opportunity on July 6th when the court heard the government’s motion to vacate the order. The latter opportunity was but little removed from the usual hearing on issuance of a preliminary injunction. On the record, the court stated conclusions which were pertinent to in-junctive relief, i. e. irreparable harm, countervailing harm to the defendant, and the probability of success. As to the factual premises underlying those conclusions, the record shows at the very least an awareness by the court and counsel of the relevant statutory provisions and administrative actions. Since the main purpose of Rule 52 is served in this instance, where the record fully explicates the district court’s material assumptions of fact to the extent necessary for appellate review, and neither side has been misled as to the basic issues involved, we will' accept, without encouraging the practice, what might otherwise constitute an insufficient statement of findings in a temporary restraining order which becomes, through lapse of time, a preliminary injunction. Before granting a preliminary injunction the court must be satisfied, with good reason, that Maine would otherwise suffer irreparable loss, and that it was likely to prevail on the merits. The district court was also required to balance against the possibility of irreparable loss to the plaintiff, if preliminary relief was denied, any harm to defendant that might be caused by the grant of such relief. Whether there would be irreparable loss boiled down to the need, in fiscal 1973, for the Administrator to engage in a formal action called “allotment”. Under the Act, allotment is the first step in a chain of actions required before federal financial aid is available to a particular state project. Maine asserts that if funds authorized to be appropriated in 1973 under § 207 of the Act were not timely allotted by the Administrator under § 205(a), they would cease to be available for obligation during the ensuing fiscal year. See § 205(b)(1). If so, Maine’s primary claim might become academic before it could ever be litigated. The district court concluded that under the statute as drafted Maine’s fears were well-grounded. We need not and do not decide that issue. It is enough that the statutory language renders the court’s determination reasonable and well within its discretion. Section 205(b)(1) makes available for obligation in a subsequent year “[a]ny sums allotted to a State under subsection (a)” [Emphasis supplied.] There is obvious room for the inference that sums not allotted may not be so carried forward. The Administrator takes the position that funds authorized to be appropriated may be carried forward although never allotted in the relevant years. But without questioning his good faith in this particular, or indeed without foreclosing the possibility that on one theory or another unallotted funds might not irretrievably be lost to Maine, we do not see how either Maine or the district court prudently could have failed to take the positions they did. Maine was faced with a possible loss of millions if a timely allotment turned out to be mandatory. On the other hand, if the allotment turned out not to be mandatory, entry of an interim order would do no harm. The Administrator has been unable to persuade us that the order would injure his agency even were Maine to lose on the merits. The allotment ordered, with an express prohibition against obligating the funds until further order of court, does no more than preserve the possibility of effective final relief until the merits of Maine’s claim are decided. If Maine loses, no valid claims against the United States can have been created. As to Maine’s probability of success on the merits, when the district court entered its order on July 6, 1973, it considered the rulings of several other district courts in favor of the position Maine was advocating. Today’s head count on the Water Pollution Control Act Amendments of 1972, if that is the proper way to refer to the situation, is for courts awarding relief and one declining to do so. This demonstrates to us sufficient probability of success on the merits to support a preliminary injunction. Comment, Executive Impounding of Funds: The Judicial Response, 40 U.Chi.L.Rev. 328 (1973); Note, Impounding of Funds, 86 Harv.L.Rev. 1505(1973). We do not intimate that the Administrator’s position may not ultimately prevail. But the Administrator can prevail on appeal from a preliminary injunction only if he can show an abuse of discretion. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920). The court did not abuse its discretion by concluding that Maine’s prospects were sufficiently bright to justify issuance of an interim order which, at no appreciable cost to the federal government, might forestall irreparable loss to Maine. Order affirmed. . City of New York v. Ruckelshaus, 358 F. Supp. 669 (D.D.C.1973) ; Campaign Clean Water, Inc. v. Ruckelshaus, 361 F.Supp. 689 (E.D.Va.1973) ; Minnesota v. EPA, 5 E.R.C. 1586 (D.Minn.1973) ; Martin-Trigona v. Ruckelshaus, 5 E.R.C. 1665 (N.D.I11.1973). Cf. Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636, 1652 (1973). . Brown v. Ruckelshaus, 364 F.Supp. 258 (C.D.Cal.1973).

National Renderers Ass'n v. Environmental Protection Agency

HEANEY, Circuit Judge. The National Renderers Association, Inc., and its member companies, seek direct review of regulations promulgated by the Environmental Protection Agency setting forth standards of effluent discharges from new plants in this industry under § 306 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1316. The rendering industry converts inedible animal raw materials into salable by-products for commercial use. The challenged regulations apply only to rendering operations conducted separate from slaughter or packing houses. These “independent” renderers pick up the animal waste left over at various meat and poultry processing sites, as well as dead animal stock from farms, and convert it into high protein meat-meal, tankage and inedible grease for animal and poultry feed, and tallow for soap and derivatives in the chemical industry. The raw materials, which are perishable, must be processed without delay. The renderers’ collection area is generally restricted to a 150-mile radius. On January 3, 1975, the EPA promulgated final regulations for the independent rendering industry. These regulations include “guidelines” for existing plants in the industry to be met by 1977 and 1983, and “standards” to be met by any new plants constructed after the effective date of these regulations. See 33 U.S.C. §§ 1311(b), 1314(b) and 1316(b). Under these regulations, the average of the daily value for thirty consecutive days may not exceed: EFFLUENT CHARACTERISTICS Pounds of Effluent Per 1,000 Within Mpn/ Pounds of Raw Material Processed the Range ml BODb TSS Oil & Grease Ammonia Fecal pH Coliforms 1977 0.17 0.21 0.10 6.0- 9.0 400 New 0.17 0.21 0.10 0.17 6.0- 9.0 400 1983 0.07 0.10 0.05 0.02 6.0- 9.0 400 40 C.P.R. §§ 432.100^432.106. Small independent rendering plants that process less than 75,000 pounds of raw material per day are exempt from these regulations. 40 C.F.R. § 432.101(b). We are concerned here only with the new source standards. These standards should reflect “the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology.” 33 U.S.C. § 1316(a)(1). In making this determination, the Administrator is required to consider the cost of achieving the necessary effluent reduction, 33 U.S.C. § 1316(b)(1)(B), and whether the cost is reasonable. CPC International, Inc., et al. v. Russell E. Train, et al., 540 F.2d 1329, at 1340-1342 (8th Cir. 1976) (CPC II). Our task is to determine whether the EPA’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); CPC International Inc. v. Train, 515 F.2d 1032, 1044 (8th Cir. 1975) (CPC I). To enable us to perform that task, the EPA must explicate fully its course of inquiry, its analysis and its reasoning. Appalachian Power v. EPA, 477 F.2d 495, 507 (4th Cir. 1973); Kennecott Copper Corp. v. Environmental Protection Agcy., 149 U.S.App.D.C. 231, 462 F.2d 846, 848-849 (1972). No serious challenge can be made to EPA’s determination that there is presently available demonstrated control technology that will enable new rendering plants to meet the proposed new source standards. Such is not the case, however, with respect to its determination of the technology required to meet the standards, the cost of that technology and the reasonableness of that cost. See CPC International Inc. v. Train, supra at 1044 — 1051 (CPC I). The petitioners argue that technology other than that specified by the EPA will be needed. They also argue that the initial cost of the technology will be higher than estimated and that annual costs will be so high that new plants will not be built. We turn to a detailed consideration of these issues. THE REQUIRED TECHNOLOGY The petitioners assert that new plants must include the following in-plant equipment in addition to that specified by the EPA if new source standards are to be met: an equalization tank with agitator and pump (for medium-size plants), an air flotation system, a pump and piping to recirculate condenser water, a recycling system for air scrubber water and equipment for the segregation of drainage. The EPA’s decision that a recycling system for air scrubber water and equipment for the segregation of drainage need not be included in the cost of technology required to meet new source standards is not arbitrary and capricious. This record gives support to the EPA’s finding that this equipment would be installed in any well-designed new plant whether or not the new source standards were in effect. It also supports the EPA’s finding that including this equipment in the new plant would have a de minimus effect on the total cost of the new plant. The EPA’s decision that an equalization tank and an air flotation system can be excluded is, on the basis of this record, arbitrary and capricious. The equalization tank, with agitator and pump, will cost approximately $7,000. This equipment will reduce shockloads, equalize flow and minimize the need for larger and more sophisticated lagoons or other “end of pipe” treatment. The equipment can be installed most efficiently and economically at the time the plant is built. Delay in installation will mean added expense and inconvenience at a later day. See pp. 1289-1290, infra. Air flotation systems, costing approximately $45,000 are admittedly more effective in removing grease and solids than the alternate system suggested by the EPA, catch basins and mechanical skimmers, costing $15,000. The more sophisticated flotation systems will enable the industry to meet the new source standards in the most cost-effective way. The equipment will be necessary to meet the 1983 standards. If the equipment is not installed during initial construction, it will have to be installed after ten years with added installation and operational expense and inconvenience. See pp. 1289-1290, infra The EPA concedes that a pump and piping to recirculate condenser water will be necessary if new source standards are to be met. It argues, however, that the cost of this equipment should not be included as a cost of meeting water pollution control standards, but should be charged instead to the cost of meeting air pollution control standards. This is bureaucratic nonsense. The cost is reasonably related to water pollution and should be so considered. Moreover, § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B), requires that the non-water quality environmental impact be considered in establishing new source standards. Appalachian Power Company, et al. v. Bussell E. Train, etc., et al., Nos. 74-2096, et al., Slip op. at 17-19 (4th Cir. July 16, 1976). The petitioners argue that the lagoon system suggested by the EPA is too small and inadequately designed. The EPA contends to the contrary. We are unable to resolve the controversy, from this record. The size and design of the lagoon system is significantly affected by the in-plant controls. Now that we have determined that additional in-plant controls are necessary for new plants, the EPA shall reconsider the size and design of the lagoon system, shall determine the cost of the system selected and shall set forth the reasons for its decision in detail. In this reconsideration, a decision should be made as to whether or not the lagoons should be lined. If states generally require lined lagoons to prevent seepage of contaminated waste water, they should be included in the suggested technology to meet the new source standards and the costs of installing such liners should be included in the total costs to meet the new source standards. The petitioners finally contend that a sand filtration unit is necessary to meet the 1983 standards. They argue that it is prudent to incorporate such a unit in a new plant and that the costs associated therewith should be included in the overall cost of meeting the new source standards. While there may be merit to this position, see pp. 1289-1290, infra, the EPA’s decision to the contrary is not an arbitrary and capricious one. The record supports the view that filtration units, as distinguished from in-plant controls, can be added after the new plant is built without significant additional costs or inconvenience. There is one exception. The land necessary for the filtration unit should ordinarily be acquired when the land for the plant is acquired, and the cost for it should be included in determining the total water pollution control cost for a new plant. THE COST OF THE TECHNOLOGY AND THE REASONABLENESS OF THAT COST We turn to the question of whether the cost of achieving the new source standards is reasonable. The EPA retained consultants to assist them in answering that question. The consultants prepared an excellent economic analysis insofar as existing plants were concerned. They accepted as valid, however, the capital investment and annual costs projected by the EPA in its first Development Document, dated August, 1974. Relying on these costs, they projected before and after-tax net income and cash flow for small, medium and large-size existing plants installing the water pollution control equipment suggested as necessary by the EPA. No similar analysis was made with respect to new plants. With new plants, the analysis was limited to projecting the incremental effluent control costs. The consultants concluded that the cost of controls to meet the 1977 guidelines would cause many small plants to close, and that the cost of the 1983 controls . would cause additional medium-size plants to close and substantially reduce the profitability of larger plants. A general conclusion, seemingly applicable to new plants as well as existing plants, was that the industry “does have the ability to raise reasonable amounts of capital for pollution control equipment, either through retained earnings or debt capital.” The Economic Analysis suffers from two fundamental weaknesses: (1) the cost figures used to determine economic impact were stale, and (2) the economic impact analysis for new plants was insufficient to permit any conclusions as to their economic viability. The cost estimates for the technology necessary to meet the new source standards used by the consultants were substantially increased by the EPA in its second and final Development Document, dated January, 1975. The estimated pollution control capital costs for a medium-size plant were increased by the EPA from $79,100 to $148,-000 and those for a large plant from $118,-400 to $220,000. The EPA, however, did not give the consultants an opportunity to reconsider their conclusion of economic viability after making these changes. The EPA merely commented that: To meet New Source Economic impact analysis reveals no adverse impact on Tenderers to meet BPT [1977] requirements * * *. A moderate impact on medium size plants with batch cooker systems may occur for 1983. 40 Fed.Reg. 904 (1975). This failure of the EPA to give the consultants an opportunity to reconsider the impact of the cost of controls on economic viability or to reconsider the impact itself was arbitrary and capricious. The error was compounded by failing to include the cost of some of the pollution control equipment necessary to achieve the standards. See pp. 1289-1290, supra. These errors cannot be ignored as minimal. The capital cost for pollution control equipment for a medium-size continuous operation plant, including all equipment required, would apparently be increased by approximately $122,000 by these changes. The total cost of technology — $200,000 — is more than double the cost used by the economists. This projected increase in capital cost would also have the probable effect of increasing annual costs by approximately $12,090. In light of the consultants’ conclusions that after-tax income as a percent of average invested capital would be 7.5% for a medium-size continuous plant meeting 1977 guidelines and 3.8% for a similar plant meeting 1983 guidelines, it cannot be said that annual cost increases of $12,090 would not substantially affect the economic viability of medium-size new plants. We also find error in the failure of the EPA to have the consultants calculate separately and independently the impact of the cost of controls on new plants. They did estimate, from the data given to them by the EPA, the annual incremental effluent control cost for new plants. They did not, however, complete this analysis by showing for new plants, as they did for existing plants, the manner in which pretax and after-tax income, cash flow as a percentage of sales and invested capital would be affected by the additional annual cost. Nor did they attempt to ascertain how net present value of new medium and large-size plants would be impacted by the new source standards. We cannot possible determine economic viability from this record. Costs are too important to large segments of this industry. Raw material costs are highly volatile, profit margins fluctuate widely and it is relatively difficult, especially for rural Tenderers, to pass on added costs to either the producer of the raw materials or the consumers of the finished product. The matter must be returned to the EPA for a thorough analysis based on complete, accurate and current representative data. THE RELATIONSHIP BETWEEN NEW SOURCE AND 1983 STANDARDS There is an additional important problem with respect to the new source standards. Unlike some other standards promulgated by the EPA, see e. g., wet corn milling standards discussed in CPC I, the new source standards permit higher levels of effluent than do the 1983 existing guidelines, notwithstanding the fact that the best available effluent control technology would appear to permit achievement of the 1983 standards in new plants. There is no explanation for this anomaly in the briefs, and counsel for the EPA was unable to give a rational reason for it at oral argument. The standards would thus appear on their face to be inconsistent with Congressional intent that new sources employ the most advanced current technology: The standards of performance for new sources of water pollution would require the achievement of the greatest degree of pollution reduction that can be achieved through the application of best available effluent control technology. * * * Such a maximum use of available means to prevent and control water pollution is essential to the prevention of new pollution problems and the eventual attainment of the goal of no discharge. * * * * * * The overriding purpose of this section would be to prevent new water pollution problems, and towards that end, maximum feasible control of new sources, at the time of their construction, is considered by the Committee to be the most effective and, in the long run, the least expensive approach to pollution control. A Legislative History of the Water Pollution Control Act Amendments of 1972, 93rd Cong., 1st Sess. (Comm.Print 1973) at 1475-1476 [Emphasis added.]. The House Public Works Committee was similarly emphatic: In section 306, the Committee recognizes two of the most significant factors in the attainment of clean water. These factors are (1) the need to preclude the construction of new sources or the modification of existing sources which use less than the best available control technology for the reduction or elimination of the discharge of pollutants and (2) the recognition of' the significantly lower expense of attaining a given level of effluent control in a new facility as compared to the future cost of retrofitting an existing facility to meet stringent water pollution control measures. * * sfc sí* * New sources [that] discharge pollutants * * * must be constructed to meet a standard of performance that reflects the greatest degree of effluent reduction that can be achieved by use of the best available demonstrated control technology, processes, or operating methods for. that category of sources, and for class, types, and sizes within categories of new sources. If it is practicable, a new source performance standard could prohibit any discharge of pollutants. Id. at 797-798 [Emphasis added.]. We could speculate from the record and from the arguments that had been advanced that the new source standards were set at lower levels because the EPA felt that the cost of including the technology necessary to meet the 1983 standard would be so high that no new plants would be built. If this is the reason, then the EPA should say so forthrightly. If this is not the reason, the real reason should be given and justification should be set forth in the record. We do not suggest that the new source standards should be the same as the 1983 standards. We suggest only that the matter be thoroughly reviewed on remand. In this connection, the EPA may, because of the unique nature of this industry, find it necessary to develop variable standards based on geography and/or plant size. Standards based on these criteria might do more towards meeting the congressional goals than the present standards which simply exempts small plants from all federal effluent controls. We have no desire to limit the choices available to the EPA; we intend only to encourage it to make the choices which will best effectuate congressional intent and to explicate fully its reasons for so doing. In this connection, the rendering industry could be more helpful than it has been to date. It could play a positive role by suggesting alternatives which would assist the EPA in its task of cleansing the nation’s waterways. PRETREATMENT STANDARDS The petitioners also challenge the pretreatment standards set by the EPA for new plants which do not treat waste directly but instead have it treated in publicly-owned treatment plants. They assert that the standards set forth in 40 C.F.R. § 432.-106, as defined in 40 C.F.R. § 128, are “vague” and “uncertain.” 40 C.F.R. § 128 sets forth general pretreatment standards, dividing pollutants into two categories: “compatible” and “incompatible.” Compatible pollutants are those which treatment facilities are designed to remove and may be introduced into the public treatment works subject to certain limitations. See 40 C.F.R. § 128-131. Incompatible pollutants are not treatable and must be reduced to levels identified in § 301(b) and § 304(f) of the Act. 33 U.S.C. §§ 1311(b) and 1314(f). Since the discharge of rendering industries is composed of compatible effluent, pretreatment is not required except for the limitation set out in 40 C.F.R. § 128.131. This section prohibits the introduction of waste into a treatment plant which may create fire, corrosive damage or solid waste that may obstruct the wastewater .flow. 40 C.F.R. § 128.131(a)-(c). Sub-paragraph (d) prohibits the introduction of: [wjastes at a flow rate and/or pollutant discharge rate which is excessive over relatively short time periods so that there is a treatment process upset and subsequent loss of treatment efficiency. In CPC I, we concluded that this standard was “too vague to warn the industry of the scope of the prohibited conduct” and ordered the EPA to “define in a reasonably specific manner what it considers to be an excessive discharge to a municipal plant over relatively short periods of time.” CPC International Inc. v. Train, supra at 1052 (CPC I). By referring to 40 C.F.R. § 128.-131(d) in the rendering pretreatment standards without further defining the terms excessive and the discharges prohibited, the EPA is again subject to the same criticism. However, after referring to 40 C.F.R. § 128, the EPA set forth the following qualifying language for the rendering subcategory in 40 C.F.R. § 432.106: The following pretreatment standard establishes the quantity or quality of pollutants or pollutant properties controlled by this section which may be discharged to a publicly owned treatment works by point source subject to the provisions of this subpart: Pollutant or pollutant Pretreatment property standard BOD6_____________________No limitation. TSS_______________________Do. Oil and grease______________Do. pH -----------------------Do. Fecal Coliform______________Do. In its comments attached to the standards, the EPA states that it has determined that it will allow “unrestricted discharge to publicly-owned treatment works of materials known to be adequately treated in such works.” 40 Fed.Reg. 912 (1975). The regulation and the explanation by the EPA appears to state that notwithstanding the incorporation of the limitation set forth in 40 C.F.R. § 128.131, there is no limitation of compatible discharges in terms of quantity or quality, for independent rendering plants. We so interpret the regulation. INFLATION IMPACT STATEMENT Finally, the petitioners suggest that the standards proposed are inadequate because the EPA has failed to adequately comply with Executive Order No. 11821, 39 Fed. Reg. 41501 (1974). This Executive Order requires any executive branch agency promulgating regulations to certify that the inflationary impact of the regulations has been evaluated and sets forth a number of general categories that must be considered. In Independent Meat Packers Ass’n v. Butz, 526 F.2d 228, 234-236 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976), we held that: Executive Order No. 11821 was intended primarily as a managerial tool for implementing the President’s personal economic policies and not as a legal framework enforceable by private civil action. Id. at 236. We also held that there was no support for the contention that the President intended “to create any role for the judiciary in the implementation” of this order and reversed a District Court’s order setting aside regulations of the Department of Agriculture because of alleged deficiencies in the impact statement. ' Id. We continue to adhere to this position and, therefore, find no merit in the petitioners’ contentions that the standards proposed are inadequate for the alleged failure of the EPA to comply with this order. SUMMARY It follows that on the basis of this record, we have no alternative but to reject the new source standards. There remains the question of remedy. To comply with the congressional intent that the nation’s waterways be cleansed at the earliest possible time, we remand to the EPA with the directions set forth below and retain jurisdiction pending remand. See CPC International Inc. v. Train, supra at 1049-1052 (CPC I). The proceedings in the EPA on remand shall be conducted in accordance with the procedural requirements of the Act, except that the time periods shall be shortened so as to permit the EPA to enter its final order in the matter within 120 days. Within that time, the EPA shall either furnish support for the new source standards previously published or establish new ones which can be achieved with the best available demonstrated control technology. In either event, the EPA shall fully explain the reasons for their choice and it shall set forth in detail and in a manner consistent with this opinion: (1) the technology required to meet the standard adopted; (2) the cost of the technology required to meet the standard in accordance with .the most recently available representative cost data, and (3) an economic analysis of the proposed effluent guidelines as they affect new plants in the independent rendering industry. This analysis should follow the format used by the consultants who prepared the initial economic analysis and shall be based on the most recently available representative economic data. Each party to the proceeding shall bear its own costs. . The 1977 guidelines “require the application of the best practicable control technology currently available” and must be met by existing plants on July 1, 1977. 33 U.S.C. § 1311(b)(1) (A). These regulations shall be revised on an annual basis if the EPA deems it appropriate. 33 U.S.C. § 1314(b). The 1983 guidelines “require application of the best available technology economically achievable” and must be met by existing plants on July 1, 1983. 33 U.S.C. § 1311(b)(2)(A). These regulations must be reviewed every five years, 33 U.S.C. § 1311(d), and shall be revised annually if the EPA deems it appropriate. 33 U.S.C. § 1314(b). Any plant built after October, 1972, which meets “all applicable standards of performance shall not be subject to any more stringent standard of performance during a ten-year period beginning on the date of completion * * * or during the period of depreciation or amortization * * * whichever period ends first.” 33 U.S.C. § 1316(d). . The maximum effluent level for any one day is: Pounds of Effluent Per 1,000 Within Mpn/ Pounds of Raw Material Processed the Range ml Oil & BOD5 TSS Grease Ammonia pH Fecal Coliforms 0.30 0.40 6.0-9.0 400 1977 0.20 0.30 0.40 0.34 6.0-9.0 400 New 0.20 0.14 0.20 0.04 6.0-9.0 400 1983 0.10 . On the basis of a field sample and a questionnaire verified by field survey, at least one large existing plant now meets the stricter 1983 standards. This plant uses the following technology: (1) shell and tube condenser for cooling, (2) two primary settling tanks, and (3) a complete activated sludge system that includes four aeration basins and two final settling tanks with complete recycling of the remaining sludge. The technology was estimated to have cost $300,000. At least two additional medium-size existing plants now meet all the 1977 standards. One plant uses: (1) a barometric condenser with separate discharge facilities, (2) a stationary catch basin, and (3) a series of two anaerobic lagoons in series followed by three aerobic lagoons in series. The second plant uses: (1) a Pacific Separator air flotation basin, and (2) an anaerobic lagoon followed by an aerobic lagoon that, in turn, is followed by a large aerobic pond with six months holding capacity for eventual spray irrigation over seventeen acres. The technology for this facility was estimated to have cost $150,000. The only technology required to meet new source standards in addition to that required to meet the 1977 existing plant guidelines is ammonia stripping equipment. The EPA’s determination that technology exists to reduce the ammonia content to meet the new source standards is adequately supported by the record. . Annual costs include: (a) capital and depreciation expenses, and (b) operational expenses. A capitalization rate of 10% is used by the EPA and not challenged by the petitioners; thus, an increase in investment of $1,000 will result in a $100.00 increase in operating cost. . The EPA states that the equalization tank and the air flotation system could be added at a later time if the piping were installed and capped at the time the plant was built. The statement is not supported by engineering or cost data. This alternative can be explored on remand. . The costs for a medium-size continuous operation were estimated to be: Investment Annual To meet 1977 Standards $29,100 $17,010 To meet 1983 Standards $86,100 $40,910 Standards $79,100 $30,510 . In light of this conclusion, the EPA revised its guidelines for this industry by exempting small plants that process less than 75,000 pounds per day. See § 432.101(b). . The petitioners also complain because 1971 data was used in determining investment and annual costs. The explanation given by the EPA for using this data is a rational one, i. e., that the 1972-1973 data was unrepresentative in that it indicated a profit level higher than could reasonably be expected. Compare CPC International Inc. v. Train, 515 F.2d 1032, 1051 (8th Cir. 1975) (CPC I), where no rational basis was shown for using stale data. In view of the fact, however, that a remand is required for other reasons, it would be appropriate for the EPA to use the most recently available representative data. The EPA should also consider the National Commission on Water Quality study that suggests the investment cost .estimates for the independent rendering industry for water pollution controls may be higher than those estimated by the EPA. . WATER POLLUTION CONTROL CAPITAL COST FOR A NEW MEDIUM-SIZE RENDERING PLANT EPA’s Original Projection, August, 1974 .......................... $ 79,100 EPA’s Final Projection, January, 1975 .......................... $148,000 Additional Technology Required by This Opinion................... $ 52,000 Total Technology Cost............. $200,000 Difference Between EPA’s Original Projection and Proposed Actual Cost .......................... $120,900 . The consultant estimated the annual cost for a continuous operation medium-size plant as follows: Capital................ $ 3,200 Depreciation........... $ 7,910 Operating.............. $19,400 Total ............ $30,510 . No similar data is shown for new plants. The economic consultants conclude that the industry has maintained a profit position comparable to the average manufacturing plant in the United States without stating what that average is. They also conclude that the industry is currently in a reasonably good financial position and constantly makes new capital investments in existing plants. The question that must be answered on remand is whether after-tax net income, cash flow and other economic benefits will be sufficient to justify the construction of new medium and large-sized plants. . As we noted in CPC International Inc. v. Train, supra at 1051 (CPC I), the cost of controls for new sources should not be derived solely from the projection of costs to modify existing plants even if the new source standards are the same as those for 1983 existing plant guidelines. Nor should the economic impact for new plants be assumed to bq the same as that for existing plants even if the standards are the same. The impact may be less but we cannot assume this to be the case. . Review in matters of this kind would be facilitated if the practice of xeroxing handwritten studies was discontinued. The least that can be expected is to have these studies and reports typed. . The standards for other subcategories within the meat products and rendering process industries follow this same pattern while others do not. Compare Simple Slaughterhouse subcategory 40 C.F.R. §§ 432.10 — 432.16 and Small Processor subcategory 40 C.F.R. §§ 432.50-432.56. The briefs of the parties have not drawn our attention to any explanation or basis for this practice in the record. . The Illinois Department of Agriculture made the following comment: “The proper disposal of such products directly affects our environment and any interruption of such service would materially produce adverse ecological circumstances of any area in which it occurred. Any further pressure to cause cessation of activity within the rendering industry should be considered destructive rather than constructive for the protection of our environment.” Similar comments from state agencies in Kentucky, Maryland, Pennsylvania and Virginia are included in this record.

CPC International Inc. v. Train

HEANEY, Circuit Judge. The petitioners are engaged in the processing of corn into starch, syrup, dextrose, animal feed and corn oil. They file petitions for direct review of three distinct groups of regulations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. §§ 1251 et seq. The regulations relate to the “Corn Wet Milling Subcategory” of the “Grain Mills Point Source Category,” and consist of: (1) Standards of performance for new plants, promulgated under § 306(b); (2) Pretreatment standards for new plants which discharge wastes into municipal treatment plants, promulgated under § 307(c); and (3) Effluent limitations guidelines for existing plants, promulgated under § 304(b). All parties agree that we have jurisdiction under § 509(b) to directly review the regulations relating to new plants. The petitioners assert, however, that we do not have jurisdiction to directly review the guidelines for existing plants, and that such review is in the United States District Courts under the Administrative Procedure Act. 5 U.S.C. § 701 et seq. It is only because the EPA asserts that the guidelines are directly reviewable in the Courts of Appeals under § 509(b) that the companies have filed a protective petition here. We conclude that the guidelines for existing plants cannot be directly reviewed by this Court. Accordingly, we dismiss the petitions with respect to them. We set forth our reasons for this dismissal in Part I of this opinion and examine the new plant regulations in Parts II and III. I. JURISDICTION TO REVIEW THE GUIDELINES FOR EXISTING PLANTS. A. THE SCHEME OF THE 1972 ACT. The Federal Water Pollution Control Act Amendments of 1972 restructure the federal program for water pollution control. The 1972 Act was enacted against a background of frustration and ineffectiveness in controlling the quality of the nation’s waters. The keystone of the pre-1972 program had been the setting of “water quality standards” for interstate navigable waters. Under that program, if wastes discharged into receiving waters reduced the quality below permissible standards, legal action could be commenced against the discharger. To establish that a given polluter had violated the federal legislation, a plaintiff had to cross a virtually unbridgeable causal gap by demonstrating that the cause of the unacceptable water quality was the effluent being discharged by the defendant. The enforcement mechanism of the prior legislation was so unwieldy that only one case had reached the courts in more than two decades. See S.Rep.No.92-414, 92d Cong., 1st Sess. (1971), reported in A Legislative History of the Water Pollution Control Act Amendments of 1972 at 1423 (1973), U.S. Code Cong. & Admin.News, 1972, p. 3668. The 1972 Act brought about a major change in the enforcement mechanism by shifting the focus from water quality standards to effluent limitations. See id. at 1425. It provides in § 301(a) that the discharge of any pollutant is unlawful unless it is in compliance with conditions (effluent limitations) contained in a permit issued under § 402. Permits are to be issued by the EPA, or by those states whose permit programs have been approved by the EPA pursuant to § 402(a)(5). The Act declares that “it is the national goal that the discharge of all pollutants into the navigable waters be eliminated by 1985.” § 101(a)(1). To move the country toward this goal, the Act establishes a system of standards and guidelines under which permit conditions are to become more and more restrictive, culminating hopefully in a “zero-discharge” condition. For new sources, the Administrator is directed to categorize sources and to “publish regulations establishing Federal standards of performance.” § 306(b)(1)(B). The new source standards are to reflect * * * the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants. § 306(a)(1). For existing sources, § 301(b) of -the Act provides: * * * [T]here shall be achieved— (1) (A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, * * * which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) * * *. ****** (2) (A) not later than July 1, 1983, effluent limitations for categories and classes of point sources * * * which * * * shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) * * * which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds * * * that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) * * *. The phrases used in § 301(b), “best practicable control technology currently available” and “best available technology economically achievable,” are to be given content by the Administrator of the EPA in regulations which he is directed to publish under § 304(b): For the purpose of adopting or revising effluent limitations under this Act the Administrator shall, after consultation with appropriate Federal and State agencies and other interested persons, publish within one year of enactment of this title [October 18, 1972], regulations, providing guidelines for effluent limitations, and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall— (1)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources * * *; and (B) specify factors to be taken into account in determining the control measures and practices to be applicable to point sources * * * within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 301 * * * shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate; (2)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources * * *; and (B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 301 * * * to be applicable to any point source * * * within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate * * *. B. THE JURISDICTIONAL ISSUE. The jurisdictional issue hinges on the relationship of § 304(b) to § 301(b) and their relationship to the permit-issuing process under § 402. The parties agree that this Court has jurisdiction under § 509(b) to directly review only certain actions of the EPA. The parties also agree that guidelines published under § 304(b) are not directly reviewable by this Court under § 509 and that, therefore, if the existing source regulations were published exclusively pursuant to § 304(b), we do not have jurisdiction to examine them in an original proceeding. The EPA urges that the regulations were promulgated not only pursuant to a § 304(b) power to publish guidelines, but also pursuant to a § 301(b) power to publish limitations. It contends that, in using the passive voice, “there shall be achieved * * * effluent limitations,” Congress intended to require the EPA to promulgate effluent limitations by regulation under § 301(b). Such effluent limitations would then serve as minimum national standards for industry categories, to be mechanically cranked into individual permits issued by the states or the EPA. Since § 509 provides that actions of the Administrator under § 301 are directly reviewable in the Courts of Appeals, the EPA asserts that we have jurisdiction to review the regulations pertaining to existing sources. The petitioners contend on the other hand that the EPA does not have power under § 301 to promulgate effluent limitations for existing sources by regulation. Instead, say the companies, the EPA is to publish guidelines under § 304(b), which shall be consulted by the permit-issuing authority. Under their view of the statute, the effluent limitations are to be set in the granting of individual permits. We conclude that the statute does not grant to the Administrator a separate power under § 301 to promulgate by regulation effluent limitations for existing sources. It follows that we cannot directly review the corn wet milling regulations relating to existing sources. Before explaining our reasons for reaching this conclusion, we stress several points. First, our conclusion is based on the intendment of the statute. Although policy arguments are advanced on behalf of a contrary interpretation by the EPA and by amicus Natural Resources Defense Council, Congress has resolved the policy issues against their position. Second, our conclusion that the existing source regulations were published solely under § 304(b) is by no means to denigrate their importance under the Act or to diminish their clout in the permit-issuing process. Third, our conclusion that the guidelines are not directly reviewable by this Court is not to be taken to imply that the guidelines are not otherwise subject to judicial review. Indeed, we believe that they are reviewable in the District Courts. C. THE LANGUAGE OF THE ACT INDICATES THAT THE EPA IS NOT TO PROMULGATE EFFLUENT LIMITATIONS FOR EXISTING SOURCES BY REGULATION UNDER § 301. We start with the observation that § 301 does not provide that the EPA is to promulgate effluent limitations by regulation. Other sections of the Act demonstrate that the omission of such a provision was not oversight, for Congress provided unambiguously for the promulgation of national standards in other sections of the Act. Nationally promulgated standards were expressly mandated for new sources in § 306(b)(1)(B), for toxic discharges in § 307(a)(2), and for pretreatment standards in § 307(b) and (c). In providing for national standards in these areas, Congress did four things: (1) it used the term “standards,” a word which takes on a special meaning because of its use under the Act; (2) it expressly provided that the standards were to be published by regulation; (3) it put deadlines on the process, requiring that the Administrator publish the standards within a fixed period of time; and (4) it provided that standards were to be enforceable independently of the permit system. See § 306(e); § 307(d). Not only does the wording of § 301 belie the EPA’s theory of statutory interpretation, but the permit provisions of the Act are inconsistent with the argument that the permit-setting authority is to be governed by regulations published under § 301. Section 402(d)(2) of the Act provides: No permit shall issue * * * if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this Act. (Emphasis supplied.) It is hard to imagine a clearer indication that the permit-issuing authority is to follow the guidelines promulgated under § 304(b), and is not to refer to independent regulations promulgated under § 301. Moreover, § 304(b) sets a one-year deadline for the promulgation of guidelines. If they are only for interim use by the EPA in promulgating regulations under § 301, it would be inexplicable for Congress to set a deadline for publication of the guidelines, yet fail to provide a deadline for the promulgation of the § 301 regulations. Finally, § 515 is inconsistent with the EPA’s statutory interpretation. That provision established an Effluent Standards and Water Quality Information Advisory Committee [ESWQIAC]. Six months before the publication of guidelines under § 304(b) and standards under §§ 307(a) and 306(b), the Administrator is to notify the ESWQIAC of his intent to promulgate such regulations. The ESWQIAC may then hold public hearings on scientific and technical aspects of the proposed standards and guidelines. Whether or not hearings are held, the Act directs the ESWQIAC to transmit to the EPA, within 120 days, all relevant scientific and technical information which it possesses. If the EPA was intended to promulgate regulations under § 301, one would expect § 515 to require a reference to the ESWQIAC in such instances. D. THE LEGISLATIVE HISTORY CONFIRMS THAT THE EPA IS TO SET GUIDELINES WHICH ARE TO BE FOLLOWED WHEN PERMITS ARE ISSUED, AND WHICH ARE TO SERVE AS THE BASIS OF THE ADMINISTRATOR’S VETO OF OBJECTIONABLE PERMITS. The legislative history confirms that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b). When the Act was first being considered, EPA Administrator Ruckelshaus indicated that he understood that effluent limitations were to be set in the permit-issuing process, and that the EPA had no objection to that procedure. Testifying before a Senate subcommittee, Ruckelshaus stated: * * * We believe that such Federal guidance is especially important in the area of effluent limitations. This concept is new in the law. ' It would be difficult and needlessly duplicative for each State to gather all the scientific, industrial, and technological information upon which effluent limitations must be based. Federal leadership must be provided here so that the States, in setting effluent limitations, have a clear idea of the task. (Emphasis supplied.) Hearings Before the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works 19 (1971). In a letter to Chairman Blatnik of the House Public Works Committee, Ruckel-shaus was equally clear on his understanding of the meaning of the Act: * * * Effluent limitations required by Section 301 would be established and applied to all point sources * * by means of the permits issued under Title IV. We favor the approach whereby effluent limitations would be applied to dischargers through a permit mechanism. * * * (Emphasis supplied.) Legislative History at 844. The Senate Report on S. 2770, issued in 1971, demonstrated a similar understanding of the role of the guidelines in the permit-issuing process. It declared: * * * By 1976 each discharge source should have applied for, and received, a permit setting forth the effluent limitations that will be required in this phase. * * * (Emphasis supplied.) Id. at 1463, U.S.Code Cong. & Admin. News, 1972, p. 3711. Under the EPA’s current interpretation of the statute, the permits would not “set forth” the effluent limitations, but would “incorporate” them. The Senate Report continued: Subsection (b) of this section [304] requires the Administrator, within one year after enactment, to publish guidelines for setting effluent limitations reflecting the mandate of § 301, which will be imposed as conditions of permits issued under section 402. * * Thus, these guidelines would define the effluent limitations required by the first arid second phases of the program established under section 301. * * * (Emphasis supplied.) Id. at 1469, U.S.Code Cong. & Admin. News, 1972, p. 3717. The House Report on H.R. 11896, issued March 11, 1972, also provides a clue to the shared understanding of the statutory scheme. In separate views accompanying that report, Representative Terry expressed concern that the Act nowhere provided for judicial review of the § 304(b) guidelines: * * * Many * * * significant areas in the legislation where the administrator has a great deal of discretionary action are * * * without [judicial] review. These include * * Section 304, the Federal guidelines Since the permit program is fundamental to implementation of the Act, and guidelines promulgated by EPA under Section 304 are key to the pollution control conditions for discharge under the permits, whether issued by EPA or by a state * * * an administrative review procedure of Section 304 guidelines * * * is essential. * * * (Emphasis supplied.) Legislative History at 892. If the guidelines were merely intended to be a first step in the promulgation of effluent limitations under § 301, Representative Terry’s concern over lack of judicial review of the guidelines seems unnecessary. However, if the guidelines were intended to be the only federal step defining limitations for existing sources, they take on the increased importance which he attributed to them. The importance which Representative Terry attributed to the guidelines was shared by Representative Robison during the House debate on the original bill. He defended the House version of § 402(d), which contained no veto power for the EPA, as follows: * * * The organized environmentalists argue * * * that it is essential for EPA to retain * * * the right to veto any State-issued discharge permit * * * to insure uniform water quality standards across the Nation * * *. But these arguments miss the point that it is EPA, under the House bill, which will set, in the first instance, the uniform, national standards by way of guidelines —with which all State programs will have to comply. * * * (Emphasis supplied.) Legislative History at 727. The most instructive portions of the legislative history are those concerning the debate over whether the EPA Administrator should have the authority to veto state-issued permits. The debate is important not only because of what was said, but also because the creation of the veto power would make no sense if the EPA was already empowered to promulgate regulations under § 301. Section 402(d)(2) in the Senate Bill provided: No permit shall issue until the Administrator is satisfied that the conditions to be imposed by the State meet the requirements of this Act. Legislative History at 1690. The House Bill, however, provided a veto power only where an affected state, other than the one issuing the permit, objected in writing to the Administrator. Id. at 1058-1059. The difference in the two bills was a matter of importance to Representatives Abzug and Rangel, who objected to the lack of a veto power in the House Bill in separate views attached to the House Report. Id. at 867—871. It is crucial to note that they felt the need of a veto power because the Act did not provide for nationally promulgated effluent standards for existing plants: The Bill would repeal President Nixon’s permit program and hand it over to state control after enactment with no guaranteed federal review of permits issued by states and no national minimum effluent requirements for each state permit. This will surely result in some companies having a competitive advantage over others and loss of jobs. (Emphasis supplied.) Id. at 867. They quarreled with not one, but two aspects of the bill’s provisions for existing sources: lack of federal review after the permit issuance and lack of nationally promulgated effluent standards. Their recommendation was that the permit provisions of the bill should be entirely deleted, and that the current federal permit program which had been established under the Refuse Act of 1899 should be retained. Only that approach would solve both of the proposed bill’s defects. They continued: If this is not done, and the States are allowed to issue permits, then, at the very least, the bill should give EPA authority (a) to review all permit applications; and (b) to prevent the issuance of any permit to which it objects. (Emphasis supplied.) Id. at 871. The conferees adopted a version of § 402(d)(2) which gave the Administrator a veto power over state permits, but in doing so, they established only “the very least” which Representatives Abzug and Rangel had sought: they did not provide for nationally promulgated effluent standards for existing sources. The wording of § 402(d)(2) — specifically its reference to guidelines — -is critical, for that language was not used in any prior draft of the bill, and is therefor not to be dismissed as an archaic holdover from an earlier draft. It is in this light that its proviso, that the Administrator may veto permits which do not comply with the guidelines, takes on vital importance. The Conference Report adds to the evidence indicating that there is no § 301 power to establish effluent limitations by regulation. The Report declares: Except as provided in section 301(c) of this Act, the intent of the Conferees is that effluent limitations applicable to individual point sources within a given category or class be as uniform as possible. The Administrator is expected to be precise in his guidelines under subsection (b) of this section [304], so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations. (Emphasis supplied.) Legislative History at 309. This preoccupation with the precision of the guidelines as the means of achieving uniformity makes no sense in a regime where the permit-issuing authorities are to look, not to the guidelines, but to regulations promulgated under § 301. Finally, the debates on the floor of the House and the Senate on the Conference Bill demonstrate that Congress did not envision regulations under § 301 as a part of the process whereby effluent limitations for existing sources would be set. In describing the final bill to the House, Representative Jones, who acted as floor manager, stated: * * * [I]t is intended that the State shall have primary responsibility for determining whether a discharge complies with the guidelines. * * * (Emphasis supplied.) Legislative History at 234. And, in summarizing the Conference draft on the floor of the Senate, Senator Muskie declared: The Conference agreement provides that the Administrator may review any permit issued pursuant to this Act as to its consistency with the guidelines and requirements of the Act. Should the Administrator find that a permit is proposed which does not conform to the guidelines issued under section 304 and other requirements of the Act, he shall notify the State of his determination, and the permit cannot issue until the Administrator determines that the necessary changes have been made to assure compliance with such guidelines and requirements. * * * (Emphasis supplied.) Id. at 176. E. OUR HOLDING THAT THE EPA LACKS POWER TO PROMULGATE EFFLUENT LIMITATIONS BY REGULATION UNDER § 301 IS NOT INCONSISTENT WITH OTHER PROVISIONS OF THE ACT, AND DOES NOT RENDER THEM MEANINGLESS. The remaining arguments of the EPA are not persuasive in view of the overwhelming evidence of statutory intent. First, the EPA points to § 301(e), which provides: Effluent limitations established pursuant to this section or section 302 * * * shall be applied to all point sources * * *. (Emphasis supplied.) We do not find this inconsistent with our holding, for limitations established in permits are “pursuant to” § 301’s command that application of certain technologies be required. Second, the EPA points to § 303(d)(1)(A), which requires each state to * * * identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1) * * * are not stringent enough to implement any water quality standard applicable to such waters. Again, this gives no indication of how the § 301 effluent limitations are to be established, but merely recognizes that the “best practicable” and “best available” requirements of § 301 may not suffice where unacceptable water quality would persist. Third, the EPA notes that § 309(a)(3), (c) and (d) proscribe violations of “§ 301 * * * or any permit condition.” It argues that this demonstrates that § 301 limitations are to exist independent of the permits. The argument is a non se-quitur, for § 301(a) prohibits discharging without a permit, and it is to that conduct which § 309 is addressed. Fourth, the EPA points to § 505(f), which defines “effluent standard or limi-. tation” to include: * * * (i) * * * an unlawful act under [§ 301(a)]; (2) an effluent limitation or other limitation under section 301 or 302; * * * or (6) a permit or condition thereof * * *. The EPA urges that, under this Court’s interpretation of the Act, “the second definition * * * would be redundant with the sixth.” E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.). We do not agree. The independent reference to § 301 is necessary because § 301(f) bans the discharge of radiological, chemical and biological warfare agents and highlevel radioactive wastes. Fifth, the EPA notes that § 509 (b)(1)(E) grants judicial review of the Administrator’s action in * * * approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306 We do not find this inconsistent with our holding. The reference to § 301 is necessary if the Administrator’s action under § 301(c), modifying the application of the 1983 requirements to certain point sources, is to be subject to judicial review. Sixth, amicus Natural Resources Defense Council argues that, unless the EPA’s statutory interpretation is adopted, “a loophole as big as a barn door” will be created. It contends that, unlike § 304(b) regulations, § 301 regulations would be enforceable independent of the permit process. We cannot agree. The Act does not provide that effluent limitations under § 301 are enforceable independent of the permit system. This is in contrast to national standards for toxic discharges and for new sources. See §§ 307(d) and 306(e). Moreover, § 402(k) expressly provides that compliance with a permit condition will be deemed to be compliance with the requirements of § 301. In sum, the Act and the legislative history demonstrate that the EPA does not have power to promulgate effluent limitations for existing plants by regulation under § 301, and we see nothing in any other provision of the Act which is inconsistent with this conclusion. Accordingly, we do not have jurisdiction to directly review the regulations pertaining to existing sources. II. THE NATIONAL STANDARDS OF PERFORMANCE FOR NEW SOURCES. Our review of the Administrator’s action in promulgating the national standards of performance for new sources is limited to a determination of whether the Administrator’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Cf. Union Electric Co. v. Environmental Protection Agency, 515 F.2d 206, at 214 (8th Cir. 1975). As the Supreme Court noted in Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 823, the scope of this review is a limited one: * * * [T]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. * * ' * Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The new source standards for the corn wet milling subcategory set maximum allowable discharge levels or “loads” for three pollutant measurements: five-day biochemical oxygen demand (BOD5), total suspended solids (TSS), and pH. The BOD5 add TSS load levels are expressed in terms of pounds per thousand standard bushels (MSBu) of corn processed. For BOD5, the new source standards permit a maximum average of daily values for thirty consecutive calendar days of 20 pounds per MSBu. For TSS, the standards permit a thirty-day average of 10 pounds per MSBu. The maximum allowable discharge level on any single day is three times the thirty-day average, or 60 pounds of BOD5 and 30 pounds of TSS per MSBu. See 40 C.F.R. § 406.15. The petitioners assert that the new source standards are arbitrary and capricious and are not in accordance with law, because there is no adequate basis in the record for the EPA’s conclusion that the standards can be met by utilization of * * * the best available demonstrated control technology, processes, operating methods, or other alternatives * * * § 306(a)(1). Specifically, the petitioners contend that the new source standards are predicated on the existence and efficacy of technology which is neither “available” nor “demonstrated” within the meaning of the Act. Initially, we must examine the EPA’s justification for the new source standards. Those standards are identical to the 1983 guidelines for existing plants. 40 C.F.R. § 406.13. The 1983 guidelines assume the technology available to meet the 1977 guidelines will be supplemented by additional technology in 1983. The 1977 guidelines are predicated on a technology consisting essentially of recirculated cooling water, aerated equalization, activated sludge, and good housekeeping practices. The EPA concluded that this technology would be sufficient to permit compliance with the 1977 guidelines, which consist of 50 pounds each of BOD5 and TSS per MSBu on a thirty-day average, with three times that amount permitted on any single day. See 40 C.F.R. § 406.12. ' The 1983 guidelines/new source standards are predicated on the availability of the 1977 technology plus the addition of deep bed filtration. The EPA concluded that deep bed filtration will result in the removal of approximately 30 more pounds of BOD5 and 40 more pounds of TSS per MSBu. The correctness of the EPA’s conclusion that the new source standards can be met thus hinges on the validity of four intermediate conclusions: (1) that the 1977 technology is “demonstrated” and “available” for new plants; (2) that the 1977 technology will be sufficient to remove all but 50 pounds each of BOD5 and TSS per MSBu; (3) that the incremental deep bed filter technology is “demonstrated” and “available” for new plants; and (4) that the incremental technology will be sufficient to remove an additional 30 pounds of BOD5 and 40 pounds of TSS per MSBu. The petitioners concede that the 1977 technology is available for implementation in new plants. They contend, however, that it will not perform up to EPA expectations and that its use will not bring compliance with the 1977 guidelines. They rest their case on the premise that the CPC Plant at Pekin, Illinois, has not been able to meet the 1977 guidelines, despite its implementation of “most” of the 1977 technology. Their reliance is misplaced, for the record indicates that the Pekin Plant discharges 6,000 pounds of BOD5 daily in once-through barometric cooling water without treatment — a practice which does not square with the 1977 technology’s requirement that cooling water be recirculated and treated. If the Pekin Plant recirculated this cooling water, treated it in accordance with approved technology, and maintained effective in-plant controls, it would, on the basis of the record, be able to meet 1977 discharge guidelines. The EPA, on the other hand, based its conclusions as to the performance capabilities of the 1977 technology on the following reasoning: (1) Data from existing plant operations indicates that the best existing plants have made substantial progress in reducing BOD5 and TSS by using an activated sludge process plus some in-plant controls; (2) The best existing plants fail to treat large quantities of BOD5 and TSS because they use barometric condensers and discharge the waste from these condensers directly into receiving waters; (3) By using surface condensers — a demonstrated technology — the raw effluent could be concentrated and subjected to activated sludge treatment thereby achieving significantly greater BOD5 and TSS reductions; (4) None of the best known in-plant controls are being used in combination in any one plant; (5) By combining the best known in-plant controls in one plant, greater reductions of BOD5 and TSS would be achievable; (6) There are no practical reasons which would preclude the implementation of the complete 1977 technology in a new plant. (7) We conclude that the data was sufficient, the projected results were reasonable, and the petitioners have not demonstrated that the EPA made a clear error of judgment in determining that the 1977 technology, when employed in a new plant, would enable it to comply with the 1977 guidelines. The remaining question, therefore, is whether the record supports the Administrator’s conclusion that the technology necessary to achieve the incremental removal of 30 pounds of BOD5 and 40 pounds of TSS per MSBu is available for use in new plants. We conclude that it does not. The EPA’s supporting documents concede that the deep bed filtration technology has not been “demonstrated” within the corn wet milling industry. See Development Document at 87, 121. This does not end the inquiry, for new source standards may properly be based on a technology which has been demonstrated outside the industry, if that technology is transferable to it. The EPA contends that deep bed filtration has been proven effective elsewhere and that it is readily transferable to corn wet milling. To base its standards on transfer technology, the EPA must: (1) determine that the transfer technology — in this case, deep bed filtration — is available outside the industry; (2) determine that the technology is transferable to the industry; and (3) make a reasonable prediction that the technology, if used in the industry, will be capable of removing the increment required by the new source standards. Cf. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 391-392 (1973); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 628-629 (1973). The petitioners concede that deep bed filtration has been successfully used in other industries and in municipal treatment works. They deny, however, that deep bed filtration is adaptable to the corn wet milling industry and deny that the use of such filters in the industry will result in the removal of the incremental 30 pounds of BOD5 and 40 pounds of TSS per MSBu. The basis for their contention is the fact that corn wet milling industry effluent is subject to “shockloads,” and contains such high concentrations of suspended solids that clogging of the filtration system is to be expected. Given the unique nature of the corn wet milling effluent, and the apparent relevance of its uniqueness to the efficacy of deep bed filtration, the EPA cannot rely on a presumption of transferability of that technology. Its conclusion that the technology is transferable, and its prediction that the use of the technology within the industry will result in removal of the 30 and 40 pound increments must be supported by evidence in the record. The District of Columbia Circuit, in examining new source standards under the Clean Air Act, has stated the matter well: * * * The Administrator may make a projection based on existing technology, though that projection is subject to the restraints of reasonableness and cannot be based on “crystal ball” inquiry. * * * [T]he question of availability is partially dependent on “lead time”, the time in which the technology will have to be available. Since the standards here put into effect will control new plants immediately, as opposed to one or two years in the future, the latitude of projection is correspondingly narrowed. If actual tests are not relied on, but instead a prediction is made, “its validity as applied to this case rests on the reliability of [the] prediction and the nature of [the] assumptions.” International Harvester, at 45 [155 U.S.App.D.C. at 438, 478 F.2d at 642], Portland Cement Ass’n v. Ruckelshaus, supra, at 391—392. We conclude that the prediction as to the efficacy of deep bed filtration in the corn wet milling industry is not a reasonable one, because there is no support in the record for that prediction. The sum total of the evidence in the record as to the efficacy of deep bed filtration in or outside of the corn wet milling industry consists of the following: (1) A statement that deep bed filtration has been used outside the industry for several years, and produces a “high quality effluent.” Development Document at 121. This statement is not supported in the record and the degree of BOD5 and TSS reduction obtained by other industries and municipalities is nowhere quantified. (2) Statements that: “It is anticipated that the technology of removing biological solids by filtration will improve rapidly * * Id. at 120 (Emphasis supplied.). “Deep bed filtration will remove most of the remaining suspended solids * * *.” Id. at 121. “[I]t is * * * felt that” the new performance standards can be met with the technology. Id. at 126 (Emphasis supplied.). The technology “should significantly reduce the raw; waste loads” and the new source standards “should be achievable.” Id. at 127 (Emphasis supplied.). The Clinton Plant “should demonstrate” the transferability of the technology to the industry. Id. at 121 (Emphasis supplied.). These statements are likewise not supported in the record. We can find no concrete data, test results, literature, or expert opinion tending to support the EPA’s feelings, anticipations and prophecies. To the contrary, the EPA originally proposed a 1977 guideline of 35 pounds per MSBu of TSS, only to raise it to 50 pounds in the final regulations, with the following comment: * * * EPA believes that while the 30 lb limit might be attainable, the technology is not yet available to achieve this effluent level on a routine basis. * * * 39 Fed.Reg. 10512 (1974). Further doubt is cast on the achievability of the new source standards in a letter sent by the Department of Agriculture to the EPA on July 25, 1973: If the Level II (July 1, 1983) standards are to be applied immediately to any new construction, this would appear to delay any new construction by several years because of recognized lack of proven control and treatment technologies for economically achieving the proposed levels. Is such delay acceptable? It follows that, on the basis of this record, we have no alternative but to reject the new source standards. There remains the question of remedy. The Act directs that the standards should have been promulgated more than one year ago. See § 306(b)(1). We believe that this mandate to proceed expeditiously would not be furthered if we simply held that the new source standards are unacceptable. Accordingly, we remand to the EPA with directions set forth below, and retain jurisdiction pending the remand. See South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646, 665-667 (1st Cir. 1974); International Harvester Co. v. Ruckelshaus, supra, at 649; Kennecott Copper Corp. v. Environmental Protection Agency, 149 U.S.App.D.C. 231, 462 F.2d 846, 850-851 (1972). Cf. 28 U.S.C. § 2106. The proceedings in the EPA on remand shall be conducted in accordance with the procedural requirements of the Act, except that the time periods shall be shortened so as to permit the EPA to enter its final order in the matter within 120 days. Within that time, the EPA shall either furnish support for the new source standards previously published, or establish new ones which can be achieved with the best available demonstrated control technology. If the petitioners are dissatisfied with the Administrator’s final action, they shall have ten days to file with this Court any objections to his final order. In that event, an accelerated briefing schedule shall be arranged with the clerk of this Court to review the Administrator’s action. , On remand, we instruct the EPA to deal with one other matter which is not adequately covered in the record. Section 306(b)(1)(B) directs the Administrator to consider the issue of costs in adopting new source standards. This consideration is particularly important here, since the record indicates that capital and operating costs may be of more significance in this industry than in some others, due to low profit margins, the highly volatile nature of raw material prices, and competitive substitutes which make it difficult to pass on increased costs to consumers. Compare Portland Cement Ass’n v. Ruckelshaus, supra at 387-388, 390. The current record concerning costs for new sources is unsatisfactory in two major respects. First, the EPA has not projected separate operating and capital cost figures for new plants, but has relied on those prepared with respect to modifying existing plants to comply with the 1983 guidelines. It must correct this defect on remand. It may well be that these costs will be less for new plants than for modified ones, but we cannot assume this to be the case. Second, the EPA based its cost figures on 1971 prices, even though the Development Document and the regulations were published in March of 1974. More current figures than' this are available, and should be used by the EPA in setting forth projected capital and operating costs for new plants. III. THE PRETREATMENT STANDARDS FOR NEW SOURCES. Section 307(c) of the Act provides that the Administrator shall promulgate pretreatment standards for new plants which introduce their pollutants into publicly owned treatment works. The pretreatment standards promulgated for new plants in the corn wet milling industry, 40 C.F.R. § 406.16, incorporate by reference a general set of pretreatment standards earlier promulgated in Part 128 of title 40 of the Code of Federal Regulations. See 38 Fed.Reg. 30982-84 (1973). Those standards split pollutants into two categories: “compatible” and “incompatible.” Compatible pollutants include BOD, TSS and pH. See 40 C.F.R. § 128.121. Under the general pretreatment standards incorporated by the new source pretreatment standards, a plant is not required to pretreat its effluent for removal of compatible pollutants, except as required by 40 C.F.R. § 128.131 or by a state or municipality. See id. § 128.132. Since the corn wet milling effluent is a compatible one within the meaning of the regulations, nqw plants in the industry need worry only about the applicability of § 128.131. That section provides: No waste introduced into a publicly owned treatment works shall interfere with the operation or performance of the works. Specifically, the following wastes shall not be introduced into the publicly owned treatment works: (a) Wastes which create a fire or explosion hazard in the publicly owned treatment works. (b) Wastes which will cause corrosive structural damage to treatment works, but in no case wastes with a pH lower than 5.0, unless the works is designed to accommodate such wastes. (c) Solid or viscous wastes in amounts which would cause obstruction to the flow in sewers, or other interference with the proper operation of the publicly owned treatment works. (d) Wastes at a flow rate and/or pollutant discharge rate which is excessive over relatively short time periods so that there is a treatment process upset and subsequent loss of treatment efficacy. The petitioners complain that this standard is not really a standard, because it is too vague and uncertain. While their attack on § 128.131 is in the form of a general broadside, their only real complaint concerns subparagraph (d). We conclude that the petitioners’ objection to that subparagraph is well taken. The record clearly indicates that corn wet milling effluent is subject to shockloads. A new plant operator whose shockload is determined to be “excessive over [a] relatively short time period * * * [causing] loss of treatment efficacy,” would be subject under subparagraph (d) to substantial civil or criminal penalties. See § 309. This standard is too vague to warn the industry of the scope of prohibited conduct. On remand, therefore, the EPA shall review subparagraph (d) of § 128.131, as it applies to the corn wet milling industry, and shall amend the regulation so as to define in a reasonably specific manner what it considers to be an excessive discharge to a municipal plant over relatively short periods of time. We do not require, as the petitioners would have us do, that the regulations must be amended to provide that a new corn wet milling plant may discharge all compatible wastes into municipal treatment works without limitation. We recognize that the Administrator’s task in defining those shockloads which will upset municipal treatment works is a difficult one. Obviously such a definition is dependent on the size and capabilities of the particular works which is receiving the waste. Nevertheless, this is a difficulty with which the Administrator must grapple. The pretreatment standards for new plants are remanded for reconsideration and amendment of the incorporated § 128.131(d), as it relates to new sources in the corn wet milling industry. The Administrator shall complete his action in that regard within the time limits and procedural requirements set forth in Part II of this opinion. This Court retains jurisdiction in the matter, and will hear objections to the Administrator’s action on remand in accordance with the provisions of Part II of this opinion. IV. SUMMARY. The petitions challenging the validity of the guidelines for existing sources are dismissed. The new source standards and the pretreatment standards for new sources are remanded to the Administrator of the EPA for proceedings consistent with this opinion. Each party to this proceeding shall bear its own costs. . The regulations were issued on March 20, 1974, and are codified in 40 C.F.R. §§ 406.10-406.16. . Hereinafter, section references will be to the Act as passed by the Congress. . The EPA contends that the regulations pertaining to existing plants were also promulgated pursuant to § 301(b). This is the basis of its jurisdictional argument. . The protective petition was necessary because § 509(b)(2) provides, in substance, that if review of the Administrator’s action could have been obtained in the Court of Appeals under § 509(b)(1), it will not be subject to judicial review at the enforcement stage. . This two-volume set will hereinafter be cited as Legislative History. . Insofar as we have been able to determine, the Administrator has now approved the permit programs of twenty states. These include California, Connecticut, Delaware, Georgia, Kansas, Michigan, Minnesota, Mississippi, Montana, Nebraska, Ohio, Oregon, Vermont, Washington, Wisconsin, see 39 Fed.Reg. 26061 (1974), Maryland, see id. at 34601, Missouri, see id. at 40067, Hawaii, see id. at 43759, Indiana, see 40 Fed.Reg. 4033 (1975), and Wyoming, see id. at 13026. Existing corn wet milling plants operate in Illinois, Indiana, Iowa, Missouri, Ohio, Pennsylvania and Texas. . In addition, all sources must comply with national discharge standards for toxic effluents-, to be published by regulation pursuant to § 307(a). And any existing source which discharges its effluent into publicly-owned treatment works must comply with national pretreatment standards, to be published by regulation pursuant to § 307(b). . Section 509(b)(1) provides: Review of the Administrator’s action (A) in promulgating any standard of perform-anee under section 306, (B) in making any determination pursuant to section 306(b)(1)(C), (C) in promulgating any effluent standard, prohibition, or treatment standard under section 307, (D) in making any determination as to a State permit program submitted under section 402(b), (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306, and (F) in issuing or denying any permit under section 402, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. . The petitioners assert that, even if the Act contemplates separate regulations under § 301, these existing-source regulations can be no more than guidelines under § 304(b) because the EPA consistently stated throughout the rulemaking process that it was preparing guidelines. For the EPA to change its mind now and assert that it was establishing limitations under § 301, they say, would violate the notice and comment requirements of the Administrative Procedure Act. We need not deal with this contention, since we hold that the EPA lacked power to publish effluent limitations by regulation under § 301. We note, however, that the final regulations were entitled “effluent limitations guidelines,” see 40 C.F.R. §§ 406.12 and 406.13, and that that term has been defined by the EPA to mean regulations promulgated pursuant to § 304(b). See 40 C.F.R. § 401.11(j). . The Administrator does have authority to establish effluent standards for toxic pollutants under § 307(a), and pretreatment standards under § 307(b). See note 7, supra. . Section 402(d)(2) expressly provides that the Administrator may halt issuance of any state-issued permit if he determines that the conditions of the permit do not comply with the guidelines. The guidelines are to be as precise as possible to assure uniformity of permits for industry categories. See Conference Report in Legislative History at 309. Moreover, they are expected to define a * * * base level applicable to all plants within [a] category. * * * in no case * * * should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level. Senate Report in id. at 1468, U.S.Code Cong. & Admin.News, 1972, p. 3716. Given the Administrator’s power to issue permits in states not authorized to do so and to veto any state-issued permit which does not comply with the guidelines, carefully written guidelines can move the nation responsibly toward the goal of eliminating the discharge of all pollutants into navigable waters by 1985. . As we have previously stated, “judicial review is the rule, not the exception.” Ratnayake v. Mack, 499 F.2d 1207, 1210 (8th Cir. 1974). See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410-413, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Environmental Defense Fund v. Corps of Engineers of United States Army, 470 F.2d 289, 298-299 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). We note that counsel for the government stated at oral argument that, if it were held that the existing source regulations had been promulgated pursuant to § 304(b), they would be reviewable in District Court. We agree. But see American Paper Institute v. Train, 381 F.Supp. 553 (D.D.C. 1974), appeal pending, No. 74-1544 (D.C. Cir.). . The Act established separate regulatory schemes for new and for existing point sources. This reflects contrasting policies applicable to plants to be constructed in the future and those already in place. As Respondent Train, who was then Chairman of the Council on Environmental Quality, testified before the House Committee on Public Works: Across-the-board requirements can be justified for new plants, since they have many options in terms of processes, inputs, and-the like, which is not the case for existing facilities. Legislative History at 1115. . In E. I. DuPont de Nemours & Co. v. Train, No. 74-57, 383 F.Supp. 1244 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), the court concluded that the word “guidelines” in § 402(d)(2) refers to § 304(h). See id. at Slip Op. 12. We cannot agree. The guidelines to be promulgated under § 304(h) concern the necessary elements of a state permit program; they say nothing about the conditions which must be written into a permit. Moreover, the remedy for state failure to comply with the § 304(h) guidelines is not rejection of a given permit under § 402(d)(2), but EPA withdrawal of approval of the whole state permit program. See § 402(c)(3). Clearly, the word “guidelines” in § 402(d)(2) refers to § 304(b). See Senator Muskie’s comments on the Conference Bill in Legislative History at 176, quoted at p. 1042, infra. . Where the Act requires the Administrator first to assemble and publish information and only thereafter to publish standards on the basis of that information, different deadlines were put on each of the two stages. Compare § 304(c) with § 306(b)(1)(B) [new source standards]; compare § 307(a)(1) with § 307(a)(2) [toxic discharge standards]; compare § 304(f) with § 307(b) and (c) [pretreatment standards]. . The plea of Representatives Abzug and Rangel for a veto power was carried to the floor of the House, where an attempt to amend the original House Bill was defeated. In the process of advocating the EPA veto power, Representative Reuss raised a “forum-shopping” argument which the EPA has once again raised in this litigation: * * * [T]he greatest political barrier to effective pollution control is the threat by industrial polluters to move their factories out of any State that seriously tries to protect its environment. That threat can be answered only by a review at the Federal level of permits. Legislative History at 577. Although Representativé Reuss’ setback on the veto power was only a temporary one, since the Conference Bill eventually adopted it, his opponents’ answer to the forum-shopping fear was as valid then as it is today: an existing plant cannot change its forum without becoming a new plant, in which case it would be subject to the uniform national standards for new plants promulgated under § 306. See Legislative History at 579-580 (Remarks of Representative Roe). See also id. at 379 (Remarks of Representative Clausen). The real danger from lack of uniform standards for existing sources is competitive disadvantage, as Representatives Abzug and Rangel recognized in their supplementary views to the House Report. See id. at 867. They urged that the latter problem could be totally cured only by retention of the Refuse Act permit program, or creation of a totally federally controlled permit system. Failing that, they argued that, “at the very least,” a veto power was necessary to lessen the danger. . See pp. 1038-1039, supra. . See also p. 1038, supra. . The Court’s comments to the contrary in Natural Resources Defense Council, Inc. v. Train (1974), D.C.Cir., 510 F.2d 692 at 707-710, were clearly dictum, and the Court took the extraordinary step of expressly acknowledging that fact in a supplementary order issued on March 10, 1975. One District Court has squarely faced this issue, and concluded that the EPA has power under § 301 to establish effluent limitations by regulation. E. I. DuPont de Nemours & Co. v. Train, supra. The court there based its conclusion primarily on the arguments which we find unpersuasive in part I.E. of this opinion. The other District Court, which the EPA cites for authority, held that guidelines promulgated under § 304(b) are reviewable nowhere. American Paper Institute v. Train, supra, at 554. That court’s remarks that it also believed that effluent limitations had been and could be promulgated under § 301 were dictum. . Section 306(a)(2) provides: The term “new source” means any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section. . While BOD is only a measure of organic pollution’s effects, it is on occasion referred to as a pollutant. See, e. g. 40 C.F.R. § 128.121 (1974). BOD measures the oxygen-consuming capabilities of organic matter which will be fulfilled as the matter decomposes. BOD5 is a measure of the oxygen-demand of the organic matter after a five-day period, and is one of the most common measurements employed in the field of water quality. By depressing the oxygen content of the receiving waters, an effluent with a high BOD measurement may drastically alter the aquatic environment, with ill effects on the inhabitants. Frequently, all of the oxygen in the receiving waters is exhausted by the BOD; in such instances, continued decay produces noxious gases and visible stagnation. BOD may also be an indicator of the presence of bacteria. . Suspended solids include both inorganic and organic materials. While in a suspended state, they may inhibit light penetration and impair photosynthesis in aquatic plants. They also interfere with treatment processes used in purifying drinking water, and may render water unsuitable for certain industrial purposes. When they have settled to form a blanket on the beds of streams and lakes, they may adversely affect the aquatic environment by destroying normal fauna growth. . Neither the new source standards for pH nor the existing source guidelines for pH are challenged by the petitioners. Our discussion of the new source standards, therefore, deals exclusively with the levels set for BOD5 and TSS. . . One difficulty encountered in reviewing the record stems from the fact that, in discussing the performance of existing plants, the EPA, its consultants, and industry spokesmen frequently recorded measurements solely in terms of milligrams per liter (mg/1), a measurement which reflects the concentration of the effluent. The EPA’s decision not to set the standards in terms of mg/1 is proper, for any standard based on concentration may be met by diluting the effluent with large quantities of water. Nevertheless, the relationship of much of the backup data to the effluent/raw waste ratio ultimately selected was difficult to assess. To the extent that the agency is able to frame the backup data in the same terms as are used in the final standards, our task in reviewing the regulations would be facilitated. . The legislative history makes it clear that the Administrator is not to prescribe the technology which must be used, but is rather to set discharge levels which can be met if indicated technology is used. The choice of technology at each plant is left to the operator. See Conference Report in Legislative History at 311; Senate Report in id. at 1477. . We refer to these processes as the “1977 technology.” The supporting document accompanying the corn wet milling regulations sets forth this technology as “Alternative B:” Alternative B includes 12 to 18 hours of aerated equalization ahead of the complete-mix activated sludge process and associated chemical feed, sedimentation, and sludge de-watering facilities proposed in Alternative A. Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Grain Processing Segment of the Grain Mills Point Source Category [hereinafter Development Document] (March 1974) at 93. “Alternative A,” which is embraced by “Alternative B,” is defined thus: This alternative provides for grit removal, pH adjustment, nutrient addition, complete-mix activated sludge, secondary sedimentation, and centrifugation for solids dewater-ing. The treatment system does not include equalization or primary sedimentation. * * Id. . We refer to these processes as the “1983/new source technology.” The Deveiopment Document at 95 describes “Alternative D,” which is the basis of the 1983 guidelines and new source standards: In this proposed system, deep bed filtration is added to the activated sludge system presented as Alternative B. * * * Another portion of the Development Document indicates that the 1983/new source technology contains two additional increments to the 1977 technology: isolation and treatment of all process waste waters, and institution of “maximum water reuse.” Id. at 120-121. These additions appear to be but a tightening up of controls already present in the 1977 technology. Nowhere has the EPA stated on the record the amount of BOD5 and TSS reduction which is expected to .result from these additions to the 1977 technology. However, the. record as a whole indicates that deep bed filtration was expected to accomplish most of the 30 and 40 pound incremental reductions. . Because the “raw waste load” in pounds per MSBu varies from plant to plant, it is difficult to express the standards in terms of percentage of removal required. The raw waste load may be high in existing plants because in-plant controls are not ideal or because the end product manufactured is one which inevitably results in a higher raw waste, particularly where a plant manufactures modified com starches. The following table represents the percentage of reduction required from the 1977 and 1983/new source technologies in the existing plants with the lowest (Plant I) and highest (Plant II) raw waste loads, and in the average plant. Raw waste figures are from the Development Document at 52. BOD5 REDUCTION % Reduction % Reduction for 1983/ Raw Wasté for 1977 New Source Incremental in Limit Limit Reduction lbs/MSBu (50 lbs.) (20 lbs.) Required PLANT I 119 57.9% 83.1% 25.2% PLANT II 699 92.8% 97.1% 4.3% AVERAGE 415 87.9% 95.1% 7.2% TSS REDUCTION % Reduction % Reduction for 1983/ Raw Waste for 1977 New Source Incremental in Limit Limit Reduction lbs/MSBu (50 lbs.) (10 lbs.) Required PLANT I 29 PLANT II 54 8 AVERAGE 211 . Except for the question of the performance capabilities of the 1977 technology, the principal objections raised by the petitioners to the 1977 guidelines relate to their implementation in existing plants and, therefore, need not be considered by us. For the same reason, what we say here with respect to the 1977 technology as it relates to new plants is not ultimately dispositive of the petitioners’ challenge to the 1977 guidelines. . The petitioners further contend that the single-day allowance of three times the thirty-day average is not sufficient to protect a new plant from the consequences of upsets or “shock-loads.” Cf. note 33, infra. They also contend that, in addition to the single-day “variability factor,” the regulations must provide for statistically expected “excursions” — those rare occasions on which a well-run plant will exceed even the single-day limit. There are an infinite number of ways in which the Administrator may approach the related questions of basic standards, variability, and excursions. For example, the industry itself agreed at one point in the rule-making process that an average of 90 pounds of BOD5 and 30 pounds of TSS per MSBu “might be achievable,” but urged that a maximum single-day allowance ought to be set at 2.5 times that amount. Statement by Robert C. Liebenow, President of Corn Refiners Association, to ES-QWIAC (April 30, 1973) at 5, 13. The ultimate question is not whether the variability factor selected is appropriate, but whether the 1977 guidelines can be achieved with the 1977 technology. We find no clear error in the Administrator’s determination that they can. . The EPA expressed a belief that the Clinton Com Plant at Clinton, Iowa, which was then undergoing modifications, “should demonstrate the applicability of this level of technology to grain milling wastes.” Development Document at 121 (Emphasis supplied.). However, the Clinton Plant had not yielded test results and, accordingly, the EPA did not rely on data derived from its operation: * * * It should be emphasized that these design levels [for the Clinton Plant] are far below those which have been achieved by any other plant in the com wet milling or related industries and cannot yet be considered as demonstrated technology. (Emphasis supplied.) Id. at 87. Subsequently, the EPA supplied information to this Court which indicated that the Clinton Plant had begun to achieve an effluent reduction sufficient to comply with the 1983 guidelines/new source standards. The petitioners responded to that data by submitting their own data indicating that the Clinton Plant was not even complying with the 1977 guidelines. In light of this factual dispute, the EPA retreated, and counsel informed the Court at oral argument that the Clinton Plant data was not being submitted for the purpose of showing that the technology there used would in fact result in the predicted effluent reduction. Hence, we need not decide whether post-promulgation data may properly be presented on judicial review to support the reasonableness of a prediction. Compare Amoco Oil Co. v. Environmental Protection Agency, 163 U.S. App.D.C. 162, 501 F.2d 722, 729 n.10 (1974), with Dry Color Manufacturers’ Association, Inc. v. Department of Labor, 486 F.2d 98, 108 (3rd Cir. 1973). We stress, however, that the EPA will be open, on remand, to consider any data obtained from the operation of the Clinton Plant or others, including such data as bears on the availability of the 1983/new source technology and the results which may be achieved thereby. . Although the legislative history does not speak of “transferable technology,” we think that it is consistent with this interpretation of the terms “demonstrated” and “available.” The House Report stated: It will be sufficient, for the purposes of setting the level of control under available technology, that there be one operating facility which demonstrates that the level can be achieved or that there is sufficient information and data from a relevant pilot plant or semi-works plant to provide the needed economic and technical justification for such a new source. Legislative History at 798. The Senate Report declared: As used in this section, the term “available control technology” is intended to direct the Administrator to examine the degree of effluent reduction that has been or can be achieved through the application of technology which is available or normally can be made available. This does not mean that the technology must be in actual, routine use somewhere. Rather, it means that the technology must be available at a cost and at a time which the Administrator determines to be reasonable. Id. at 1476, U.S.Code Cong. & Admin.News, 1972, p. 3724. Cf. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 391 (1973) (discussing the meaning of “available” in the new source provisions of the Clean Air Act Amendments of 1970). . The record bears out this contention: * * * It must be recognized that the treatment of high strength carbohydrate wastes is difficult. Upset conditions may occur that result in higher BOD5 and suspended solids discharges than normal. While the in-plant modifications and controls and the treatment sequence defined as best practicable control technology currently available [the 1977 technology] will minimize these upsets, they may still occur. Development Document at 117. The EPA has elsewhere declared that upsets in the biological treatment facility may have a critical effect on deep bed filtration: The single most important factor affecting filter performance is the quality of the secondary effluent produced by the biological treatment. If consistently good performance is exhibited by the biological treatment system, good filter performance can be expected. Conversely, if the biological facility is subject to frequent upsets, filtration will be much more difficult. EPA, Process Design Manual for Upgrading Existing Wastewater Treatment Plants [hereinafter Process Design Manual] (October 1974) at 7-17. . The 1977 technology includes the recirculation of cooling waters for the purpose of achieving more highly concentrated raw wastes, thus rendering them more susceptible to biological (activated sludge) treatment. Thus, the EPA has stated that the treated wastes pursuant to the 1977 technology will have TSS concentrations ranging from 50 to 200 mg/1, and that the higher values “are generally for new plants that practice maximum water recycling.” Development Document at 113. It is this biologically treated waste which will be sent to the deep bed filters. Moreover, the 1983 technology is predicated on even more water recirculation and “maximum water reuse,” see note 27, supra, and hence even higher concentrations of TSS in the biologically treated wastes. In light of these facts, the EPA’s conclusion in the Development Document at 122 that the effluent arriving at the deep bed filters will range from 30 to 50 mg/1 in TSS seems inexplicable. By contrast, the effluent arriving at the filters in municipal treatment plants can normally be expected to be below 30 mg/1, and in discussing the capabilities of deep bed filtration elsewhere, the EPA does not discuss capability to handle concentrations above 50 mg/1 in TSS. See Process Design Manual at 7-18 to 7-22. In a study completed for petitioner CPC International by consultant Roy F. Weston, Inc., in December of 1973, the consultant concluded that, for best results, waste with 100 mg/1 of TSS concentrations could only be fed to the filters at a rate of 1.7 gallons per minute foot. See Reply Brief for Petitioners, Appendix H at 10. This compares to a rate of 5 gallons per minute foot used by municipalities. See Process Design Manual at 7-17. Because the flow rate is so low, a huge filter would be required. In effect, the petitioners contend that the EPA’s policy of requiring heavy concentrations of TSS by the 1977 technology has contributed to the unsuitability of deep bed filters to the industry. . See notes 33 and 34, supra. . Moreover, even if the EPA could rely on a presumption of transferability, the record is barren of any evidence as to what the performance of deep bed filters has been outside the industry. . The Administrator may, of course, predict results. See Portland Cement Ass’n v. Ruckelshaus, supra, at 401-402. But “[o]ne must distinguish between prediction and prophecy.” International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 642 (1973). . The EPA in its presentation to this Court urges an additional basis for its conclusion: the fact that some municipalities are currently treating corn wet milling wastes and have found those wastes to be “compatible.” This basis is not adequately developed, however, for there is nothing in the record to indicate that the municipal treatment plants which are currently handling corn wet milling wastes are able to comply or are in fact complying with the new source standards applicable to corn wet milling plants. . See note 31, supra. . Similarly, the Development Document at 127 declared of the 1983 new source technology: * * * Inasmuch as this type of treatment has not been specifically applied to com wet milling wastes, initial operating experience with such systems may not fully meet the expected * * * BOD5 and suspended solids removals * * *. . The EPA is not bound by its past indication that the best available demonstrated control technology would include deep bed filtration. If there are other methods which will result in reductions equal to or better than the amount required by the 1983 guidelines, or which will result in a no discharge level, the EPA can— and indeed should — promulgate new source standards based on such technology. See § 306(a)(1), requiring a no discharge standard where practicable. This freedom to change approach is but a specific application of the Act’s provision that the Administrator shall revise the new source standards “from time to time.” § 306(b)(1)(B). . Costs become an increasingly important factor as pollution reduction enters the 95 to 100 percent range. See, e. g., Legislative History at 1127, 1147, 1150 (testimony of Paul V. McCracken, Chairman of the Council of Economic Advisers, before the House Subcommittee on Public Works); id. at 1222 (testimony of Mr. Ruckelshaus before the Subcommittee). The new source standards will require removal in this range for some plants, if past raw waste figures are predictive. See tables in note 28, supra. . That section provides: In order to insure that any sourbe introducing pollutants into a publicly owned treatment works, which source would be a new source subject to section 306 of this title if it were to discharge pollutants, will not cause a violation of the effluent limitations established for any such treatment works, the Administrator shall promulgate pretreatment standards for the category of such sources simultaneously with the promulgation of standards of performance under section 306 of this title for the equivalent category of new sources. Such pretreatment standards shall prevent the discharge of any pollutant into such treatment works, which pollutant may interfere with, pass through, or otherwise be incompatible with such works. . To the extent that there are any incompatible pollutants in corn wet milling effluent, the regulations clearly provide that they need not be pretreated. Section 406.16 provides that * * * the pretreatment standard for incompatible pollutants introduced into a publicly owned treatment works shall be the standard of performance for new sources specified in 40 C.F.R. 406.15. * * * The new source standards, of course, do not require treatment of any pollutants other than BOD, TSS and pH, all of which are compatible pollutants. The quoted portion of § 406.16, therefore, is reduced to gibberish. . The EPA conceded in its brief that normal com wet million effluent does not contain any of the characteristics of § 128.131(a), (b) or (c). See Respondent’s Brief at 99. . See note 33, supra.

Cleveland Electric Illuminating Co. v. Environmental Protection Agency

LIVELY, Circuit Judge. In this case we consider a petition for review of action of the United States Environmental Protection Agency (U.S. EPA) under the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 816, codified at 33 U.S.C. § 1251 et seq. (1972 Amendments). The particular question for review is whether U.S. EPA acted lawfully in rejecting a proposed permit for The Cleveland Electric Illuminating Company (CEI) to discharge effluents into navigable waters in Ohio. The permit was proposed by the Ohio Environmental Protection Agency (Ohio EPA), but was withdrawn when U.S. EPA objected in writing. We grant the petition for review, vacate the action of U.S. EPA and remand for further proceedings. I. The goals and policy of Congress in enacting the 1972 Amendments are clearly stated in § 101(a) which begins: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” As the means of achieving this objective Congress adopted as a national goal the elimination of all discharges of pollutants into the navigable waters of the nation by 1985. To this end all such discharges are declared illegal unless made in compliance with provisions of the statute. Recognizing the magnitude of its undertaking, Congress provided for reduction of discharges by reference to the development of technology for controlling and eliminating the discharge of pollutants. Thus, section 301 of the 1972 Amendments establishes a two-stage plan for meeting an interim goal of water quality to be achieved by July 1, 1983. Under this timetable, no later than July 1, 1977, effluent limitations are required to be achieved for all “point sources [facilities or installations which emit pollutants] which shall require the application of the best practicable control technology currently available” as defined by U.S. EPA. § 301(b)(1)(A). This requirement is referred to as BPT. The second stage is to be achieved no later than July 1, 1983. By that time effluent limitations are required to be achieved for all “categories and classes of point sources which [] shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants,” as determined in accordance with regulations of U.S. EPA. § 301(b)(2)(A). This requirement is referred to as BAT. One of the methods devised by Congress for achieving the ultimate goal of the 1972 Amendments involves the issuance of permits to dischargers who meet the BPT and BAT requirements. This permit program is referred to as the National Pollutant Discharge Elimination System (NPDES). § 402. The permits under NPDES are issued by U.S. EPA unless a particular state has established a permit program which meets the requirements of the statute. If a state establishes an approved permit system, U.S. EPA no longer issues permits with respect to the navigable waters subject to the state program. § 402(c). However, each state is required to send U.S. EPA a copy of each permit application and to notify it of each permit which the state proposes to issue. If U.S. EPA objects in writing within 90 days on grounds that a proposed permit is outside the guidelines and requirements of the 1972 Amendments the permit may not be issued. § 402(d). The effluent limitations applicable to steam electric generating plants are contained in 40 C.F.R. Part 423. Effluent limitations effective July 1, 1977 to be attained by application of BPT are set forth as guidelines in 40 C.F.R. § 423.12. Those to be attained no later than July 1, 1983 by application of BAT are established by the guidelines contained in 40 C.F.R. § 423.13. Both sections contain “variance provisions.” As originally promulgated by U.S. EPA the variance provision of § 423.12(a), with which this opinion is concerned, read as follows: (a) In establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with respect to factors (such as age and size of plant, utilization of facilities, raw materials, manufacturing processes, non-water quality environmental impacts, control and treatment technology available, energy requirements and costs) which can affect the industry subcategorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence to the Regional Administrator (or to the State, if the State has the authority to issue NPDES permits) that factors relating to the equipment or facilities involved, the process applied, or such other factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. Such limitations must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations, or initiate proceedings to revise these regulations. II. Prior to the enactment of the 1972 Amendments, acting under existing law, CEI applied to the Army Corps of Engineers for permits to discharge pollutants from four of its steam generating plants. The applications were not acted upon before the effective date of the 1972 Amendments and accordingly were considered to have been filed under the new statute. When U.S. EPA approved Ohio’s program for issuing NPDES permits the applications of CEI were transmitted to Ohio EPA. Proposed permits were prepared by Ohio EPA and forwarded to U.S. EPA. However, CEI requested an adjudication hearing on these permits and the proceedings returned to Ohio EPA. The major pollutant which CEI discharges is burned coal residue consisting of bottom ash and fly ash. Ash laden water is pumped into ponds and lagoons where the ash solids eventually settle to the bottom. The ponds are cleaned out periodically and the sediment is disposed of at an off-site landfill. However, there is overflow from these settling ponds and the guidelines and standards require that the solids stay in the ponds long enough to settle completely before water flows out. The four generating plants of CEI are located in an urban area on relatively small sites. CEI successfully contended before Ohio EPA that these sites do not contain enough unoccupied space to permit enlargement of the settling ponds to a sufficient degree to meet the July 1, 1977 standards of adequate settling time. Following lengthy informal proceedings CEI and Ohio EPA entered into “consent agreements” with respect to each of CEI’s four generating plans in October 1976. The consent agreements contained findings, inter alia, that even though CEI had installed equipment not required by applicable regulations which had significantly reduced total suspended solids in discharges from the ash ponds and clarifiers, “the existing ponds and clarifiers are incapable of providing adequate retention time and pond stability to comply with certain 1977 standards.” The Ohio EPA issued final orders with each consent agreement. These orders were to be issued as NPDES permits if approved by the U.S. EPA. The orders were based on findings that while CEI had been able to attain compliance with a number of the July 1, 1977 effluent limitations based on application of best practicable control technology, it would not be able to achieve compliance with all of these limitations because of site-specific factors despite its good faith efforts. The Ohio EPA also found that CEI would be able to accelerate compliance with the BAT standards of July 1, 1983 and actually meet those requirements during 1980 if permitted to satisfy alternative effluent limitations between 1977 and 1980. There was no written finding that the factors considered by the Ohio EPA were or were not “fundamentally different for that facility compared to those specified in the Development Document.” § 423.12(a), supra. The Ohio EPA orders were rejected as NPDES permits by U.S. EPA “because the dates for compliance with final limitations required to achieve best practicable control technology (BPT) or water standards extend beyond July 1, 1977 in violation of Section 301 of the Act . . . .” Noting that proposed construction schedules extended into 1980, U.S. EPA stated, “This is particularly disturbing since the company may be putting itself in the position where at the completion of construction to meet BPT requirements it would have to start immediately to redesign and construct new or additional facilities to meet the 1983 Best Available Treatment (BAT) requirements.” III. In seeking review of U.S. EPA's refusal to approve the proposed permits, CEI contends that it produced evidence during the informal proceedings which supports the findings of Ohio EPA that certain effluent limitations contained in the final guidelines are “inappropriate” for its generating facilities. It asserts that certain “unique, insoluble” problems made it impossible to comply with some of the limitations by July 1, 1977. These conditions all relate to the size of the sites of the four generating plants, approximately 100 acres each. According to CEI, while these sites are not large enough to permit expansion of its settling basins to a degree required to meet the BPT limitations, by accelerating installation of a “recycle system” it will be able to meet the more stringent BAT limitations approximately three years before the compliance date of July 1, 1983. CEI argues that Ohio EPA was authorized to grant a permit which contained alternative effluent limitations, because the structure of the 1972 Amendments ensures sufficient flexibility to permit variances for site-specific conditions. It is CEI’s position that the determination of effluent limitations based on application of BPT as contained in the guidelines is only “presumptively applicable” to any particular installation. CEI argues that conditions vary greatly from plant to plant and that each operator is entitled to show that particular limitations should not be applied to its plant because of conditions peculiar to it. Further, the permit-issuing agency (here Ohio EPA) has authority to make this determination. CEI contends that the effect of the Ohio EPA order was to grant variances for the four plants, as permitted by law, and that it was unlawful for U.S. EPA to deny approval. U.S. EPA supports its action on the basis of its determination that the proposed permits were clearly outside the guidelines. It argues that the effluent limitations are final and binding on all power plant operators in the absence of a variance and that no variance was obtained by CEI. It further contends that the “Development Document for Effluent Limitations Guidelines” shows that the question of the amount of land needed for disposal of burned coal residues was carefully considered in promulgating the regulations. After such consideration U.S. EPA concluded that “special consideration of land needs was unwarranted because treatment technology' includes small-sized configurated equipment as well as lagoon type facilities.” Thus, asserts U.S. EPA, the size of a plant site is not a “fundamentally different factor []” which would render a particular generating plant atypical from those considered in the Development Document. The existence of fundamentally different factors is the only basis for a variance under 40 C.F.R. § 423.-12(a), supra. Further, CEI never attempted to obtain a variance or to prove the existence of fundamentally different factors, according to U.S. EPA. In effect, U.S. EPA contends that the only variance procedure available to a discharger is that described in § 423.12(a). It argues that this procedure provides sufficient flexibility to protect a discharger with unique problems from an otherwise unfair application of the general effluent limitations. On the other hand, CEI asserts that the variance provisions of § 423.12(a) were invalidated by the Fourth Circuit in Appalachian Power Co. v. Train, 545 F.2d 1351, (1976) . This occurred while it was engaged in informal negotiations with Ohio EPA. Thus CEI contends that there were no prescribed criteria for granting variances when Ohio EPA determined that some of the BPT limitations were inappropriate for its four installations. Under these circumstances, argues CEI, it was within the authority of Ohio EPA to issue permits on the basis of the record before it. IV. A. Though various questions have been decided under the 1972 Amendments, there appears to be no case which has dealt with the precise issue now before this court. In E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977) , the Supreme Court discussed the 1972 Amendments and specifically held that U.S. EPA had authority under the statute to issue regulations which established uniform effluent limitations for categories of plants. Id. at 136, 97 S.Ct. 965. The Court pointed out that even though the July 1, 1977 limitations in § 301 refer to point sources rather than categories and classes, such limitations could lawfully be established by general regulation “so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its 1977 limitations.” Id. at 128, 97 S.Ct. at 975. In Appalachian Power Co. v. Train, supra, the court of appeals emphasized the importance of variance provisions where regulations are presumptively applicable nationwide. In setting aside 40 C.F.R. § 423.12(a) and remanding to U.S. EPA for further consideration, the court found the requirement that there be a showing of fundamentally different factors to be “unduly restrictive.” 545 F.2d at 1359. U.S. EPA did not seek review of this holding. Instead, more than eight months after the decision was rendered U.S. EPA made a motion to recall the mandate and modify the decision. This motion was denied. It is clear that the only variance provision promulgated by U.S. EPA with respect to BPT limitations was inoperative at the time Ohio EPA completed consideration of CEI’s application for partial relief from the BPT limitations. B. There can be no doubt that U.S. EPA remains the dominant agency for achieving the purposes and goals of the 1972 Amendments even after a state permit program has been approved. § 402(d)(2). As the Supreme Court pointed out in EPA v. State Water Resources Control Board, 426 U.S. 200, 208, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), no permit may be issued where U.S. EPA objects on the ground that issuance would be “outside the guidelines and requirements” of the statute. See also, American Meat Institute v. EPA, 526 F.2d 442, 452 (7th Cir. 1975). We must determine in this case whether the action of U.S. EPA, though taken within the scope of its authority, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act, § 10(e), 5 U.S.C. § 706(2)(A) (1976). Without attempting to substitute our judgment for that of the agency, we “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted). V. More than a year after the Fourth Circuit denied the agency’s motion to recall the mandate in Appalachian Power, U.S. EPA sought to comply with the requirements of that decision by amending 40 CFR Part 423 with the addition of the following two sentences at the end of § 423.12(a): * * * In accordance with the decision in Appalachian Power Co. v. Train, 545 F.2d 1351, 1358-60 (4th Cir. 1976), EPA’s legal interpretation appearing at 39 FR 30073 (1974) shall not apply to this paragraph. The phrase “other such facors” appearing above may include significant cost differentials and the factors listed in section 301(c) of the Act. 43 Fed.Reg. 44848 (1978). The significance of this amendment, for purposes of this case, is the explicit inclusion in “other such factors” to be considered as justification for a variance from BPT requirements of a new standard previously applicable only to BAT permits. Section 301(c) provides: (c) Modification of timetable The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1,1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. Though section 301(c) refers to applications filed after July 1,1977 and allows the modification of a timetable for BAT compliance, the amendment to 40 C.F.R. § 423.12(a) made the factors listed in § 301(c) applicable to variances from BPT limitations requirements as well. One of these factors is that modified requirements “will result in reasonable further progress toward the elimination of the discharge of pollutants.” Ohio EPA proposed to issue permits which allowed partial exemption from the BPT requirements for two reasons: (1) the limited size of the sites on which the four CEI units were located made full achievement of the July 1, 1977 limitations by application of BPT impracticable, and (2) by foregoing attainment of some of the 1977 limitations and proceeding immediately to construction and installation of facilities required to reach BAT limitations, the more stringent BAT requirements would be met in 1980, approximately 3 years before the date required by the 1972 Amendments. When U.S. EPA acted on the Ohio EPA proposal there was no variance procedure for electric generating units because 40 C.F.R. § 423.12(a) as adopted in 1974 had been set aside in Appalachian Power Co., supra, and no replacement had been adopted. The effect of the Ohio EPA proposed permit was to grant a variance based on plant-specific factors. In its brief before this court U.S. EPA argued that since Ohio EPA did not make an explicit finding that fundamentally different factors existed at CEI’s plants, U.S. EPA was not required to consider its factual findings and orders. We believe that U.S. EPA failed to consider all of the relevant factors and committed a clear error of judgment. Citizens to Preserve Overton Park, supra. Under a statutory scheme which gives initial authority to a state agency, subject to approval of its recommendations by a federal agency, considerations of comity require the reviewing agency to consider the findings of the initiating agency. This arbitrary determination by U.S. EPA is completely unsupportable, particularly in view of the finding of the court of appeals in Appalachian Power Co. that the “fundamentally different factors” requirement is “unduly restrictive. 545 F.2d at 1359. More significant than U.S. EPA’s failure to consider Ohio EPA’ findings because they did not refer to “fundamentally different” factors is its failure to consider the finding that CEI would achieve BAT requirements three years in advance of the statutory deadline if permitted to adopt alternate BPT limitations and accelerate installations required to achieve BAT limitations. As noted earlier in this opinion, U.S. EPA in vetoing the proposed permits, commented on the possibility of CEI’s being required to begin immediately to redesign and construct new facilities at completion of construction to meet BPT requirements. This comment indicates that U.S. EPA failed either to consider or to comprehend fully an important finding of Ohio EPA which it viewed as a critical element of its recommendation that CEI be permitted to comply with alternative effluent limitations between 1977 and 1980. We conclude that CEI is entitled to have the proposed NPDES permits considered under the amended regulation. In considering these proposed permits U.S. EPA must give due regard to the findings of Ohio EPA. In view of the fact that the BPT standard is the first of two interim requirements — the second being the more stringent BAT standard — U.S. EPA must consider the finding that CEI will be able to attain the BAT limitations some three years prior to the statutory deadline if exempted from compliance with a portion of the 1977 limitations. The ultimate justification for every regulation and guideline pertaining to discharges is its effectiveness in promoting the achievement of the goals of Congress in enacting the 1972 Amendments. The primary goal is restoration of the navigable waters of the nation to a condition of “chemical, physical, and biological integrity.” § 101(a). Upon remand U.S. EPA is to consider whether this goal is better served by permitting CEI to accelerate its achievement of BAT limitations rather than requiring it to follow a sequential pattern by first complying with all BPT limitations. The petition for review is granted. The action of U.S. EPA declining to approve the NPDES permits proposed by Ohio EPA is vacated and the cause is remanded to U.S. EPA for further proceedings consistent with this opinion. . Though the statute refers to actions by the Administrator of the Environmental Protection Agency, throughout this opinion reference will be to acts of the agency. . 33 U.S.C. § 1251(a). . 33 U.S.C. § 1311. . 33 U.S.C. § 1342. . 33 U.S.C. § 1342(d)(2).

Crown Simpson Pulp Co. v. Costle

DUNIWAY, Circuit Judge: Petitioners Crown Simpson Pulp Company and Louisiana-Pacific Corporation petition for review of respondent Administrator’s action in vetoing pollutant discharge permits that the California State Water Resources Control Board proposed to issue to petitioners pursuant to § 402(b) of the Federal Water Pollution Control Act Amendments of 1972 (“the Act”), 33 U.S.C. § 1342(b). (Unless otherwise indicated, all citations to statutory sections are to sections of the Act as they appear in 33 U.S.C.) We dismiss the petitions for lack of jurisdiction. I. Background. Petitioners operate two bleached kraft pulp mills located on the Pacific coast near Eureka, California, and those mills discharge pollutants into the Pacific Ocean. Acting pursuant to § 1311, the Administrator of the United States Environmental Protection Agency (“the EPA”) has promulgated revised nationally applicable regulations ' limiting the amounts of pollutants that different types of bleached kraft pulp, paper, and paperboard mills may discharge into navigable waters. See 40 C.F.R. part. 430, subparts F-I. His authority to issue such regulations was upheld by the Supreme Court in E. I. du Pont de Nemours & Co. v. Train, 1977, 430 U.S. 112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204. See also Weyerhaeuser Co. v. Costle, 1978, 191 U.S.App.D.C. 309, 590 F.2d 1011. The regulations provide that a discharger may obtain a variance from these effluent limitations if it can show that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. See, e. g, 40 C.F.R. §§ 430.62, 430.72, 430.-82, 430.92. The EPA uses a permit system to enforce the effluent limitations. An industrial dis-charger must obtain a National Pollutant Discharge Elimination System permit if it wishes to continue releasing pollutants into navigable waters. See § 1342; Shell Oil Co. v. Train, 9 Cir., 1978, 585 F.2d 408, 410. It can obtain a permit only if it either can comply with the national effluent limitations or get a variance. In some states, the EPA itself approves all permit applications. See § 1342(a). In other states, such as California, the EPA shares its permit granting authority with state officials pursuant to § 1342(b). In such states, state officials initially review a discharger’s permit application. If they believe that an applicant qualifies, they notify the Administrator of the EPA that they propose to issue a permit. See § 1342(d)(1). The state officials may then issue the permit unless the Administrator objects in writing within ninety days on the ground that the permit falls “outside the guidelines and requirements of Chapter [ 26 ] ,” the “Water Pollution Prevention and Control” portion of the Act. See § 1342(d)(2). This power to object in writing gives the EPA Administrator a power to veto permits that state officials propose to issue. See E. I. du Pont de Nemours & Co. v. Train, supra, 430 U.S. at 119, n. 7, 97 S.Ct. 965; State of Washington v. United States Environmental Protection Agency, (Scott Paper), 9 Cir., 1978, 573 F.2d 583, 586; Shell Oil Co. v. Train, supra, 585 F.2d at 410. If a state does not resubmit an objected to permit, “revised to meet such objection”, within certain time limits, the Administrator may himself issue a permit under § 1342(a), as if the applicant operated in a state which had not been authorized to issue permits. See § 1342(d)(4). In these cases, the California Regional Water Resources Board, North Coast Region, first proposed to issue permits to petitioners on August 26,1976. The permit did not follow the EPA’s national effluent limitations. On September 3, 1976, the Director of EPA’s Region IX Enforcement Division vetoed the permits because they did not require petitioners to achieve “effluent limitations based upon [the] best practicable control technology currently available” as required by § 1311(b)(1)(A). Petitioners then sought direct review of the Director’s veto in this court in Nos. 76-3161 and 76-3287. On March 17, 1977, the California State Water Resources Control Board (“the Board”) granted the requested variances subject to the approval of the Administrator, and proposed to issue permits based upon those variances. The proposed permits would have allowed the companies to discharge wastes far in excess of the national effluent limitations. On September 15, 1977, the EPA Administrator vetoed the permits because they excused the companies from using the “best practicable control technology currently available” as required by the Act. In the EPA’s view, this deficiency placed the permits “outside the guidelines and requirements of [the Act]” within the meaning of '§ 1342(d)(2). The Administrator’s decision is reported as In re Louisiana-Pacific, 1977, 10 E.R.C. 1841. Crown Simpson and Louisiana-Pacific then petitioned this court in No. 77-3322 to overturn the Administrator’s refusal to approve the state proposed variances. II. Jurisdiction. Petitioners argue that we have jurisdiction under either subsection (E) or subsection (F) of § 1369(b)(1). The EPA does not argue for jurisdiction under subsection (F), but joins Petitioners in urging us to find jurisdiction under subsection (E). We conclude that we cannot exercise jurisdiction under either subsection (E) or subsection (F), and we dismiss the petitions for lack of jurisdiction. Section 1369(b)(1) specifies the six circumstances under which “Review of the Administrator’s action . . . may be had ... in the Circuit Court of Appeals. . . . ” Two of them are action . (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title As we noted in Pacific Legal Foundation v. Costle, 9 Cir., 1978, 586 F.2d 650, 654, the courts of appeals have “strictly construed” these direct review provisions. A. Subsection (E). Subsection (E) applies to an “[action] in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316.” These requirements are not satisfied here. The Administrator did not “approve” or “promulgate” anything. Instead, he rejected a permit proposed by the California Board. And his action was with respect to a permit based upon a questionable variance, not an approval or promulgation of an effluent limitation or other limitation. Petitioners advance two basic arguments. First, they say that the two vetoes are the functional equivalent of a newly promulgated, generalized regulation governing the granting of variances, and that if the Administrator had formally promulgated such a generalized variance regulation, it would have been directly reviewable by the court of appeals as an “effluent limitation or other limitation” under subsection (E). We can agree that a generalized variance regulation would be an “effluent limitation or other limitation” within the meaning of subsection (E) and thus be directly reviewable in the court of appeals. See Natural Resources Defense Council, Inc. v. E.P.A., 2 Cir., 1976, 537 F.2d 642, 644-45. We cannot’ however, accept the premise that the Administrator’s vetoing of the two permits was tantamount to the promulgation of a new variance regulation. We have before us not the establishment of new regulations through an irregular procedure, but simply two individualized adjudications to determine the proper application of already promulgated effluent limitation regulations covering the entire industry. As such, the individualized adjudications are directly reviewable, if at all, only under subsection (F) which provides for direct review of Administrator action granting or denying individual permits. Recent cases involving EPA Water Pollution Control Act regulations illustrate this dichotomy. Where polluters have challenged the validity of regulations, the Supreme Court and the courts of appeals have based jurisdiction upon subsection (E). See, e. g., E. I. du Pont de Nemours v. Train, supra, 430 U.S. at 115, 124-25, 136, 97 S.Ct. 965; Virginia Electric & Power Co. v. Costle, 4 Cir., 1977, 566 F.2d 446, 447, 449-50; American Paper Inst. v. Train, 1976, 177 U.S.App.D.C. 181, 189-90, 543 F.2d 328, 336-37; American Petroleum Inst. v. E.P.A., 10 Cir., 1976, 540 F.2d 1023, 1026; Natural Resources Defense Council, Inc. v. E. P.A., supra, 537 F.2d at 645; Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 1976, 537 F.2d 620, 622, 624, 628; American Meat Institute v. E.P.A., 7 Cir., 1975, 526 F.2d 442, 444, 452; American Petroleum Inst. v. Train, 10 Cir., 1975, 526 F.2d 1343, 1345. In contrast, where permit applicants have challenged individual applications of EPA regulations, the courts of appeals have looked to subsection (F) as the possible jurisdictional basis for direct review. See, e. g., Republic Steel Corp. v. Costle, 6 Cir., 1978, 581 F.2d 1228, 1230, n. 1; Ford Motor Co. v. E.P.A., 6 Cir., 1977, 567 F.2d 661, 668; Bethlehem Steel Corp. v. Train, 3 Cir., 1976, 544 F.2d 657, 660; Sun Enterprises, Ltd. v. Train, 2 Cir., 1976, 532 F.2d 280, 284, 287. See also Diamond Shamrock Corp. v. Costle, 1978, 188 U.S.App.D.C. 407, 410, 580 F.2d 670, 673; American Petroleum Inst. v. E.P.A., supra, 540 F.2d at 1026, 1030, 1033. It is true that the vetoes provide a basis for predicting whether the Administrator will veto similar permits in future cases, but almost all administrative decisions have a generalized prospective effect to this extent. Petitioners also argue that when the Administrator exercised his veto power he did not merely reject a permit because of a dubious variance, but rejected an “effluent limitation” within.the meaning of subsec-, tion (E). Petitioners rely upon the variance clause in the regulation to convince us that we should equate state granted permits based upon variances with subsection (E) effluent limitations. The clause states: On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein to the extent dictated by such fundamentally different factors. 40 C.F.R. § 430.72 (emphasis added). While the regulation does appear to support petitioners’ argument, we cannot accept their analysis for two reasons. First, even if a permit based upon a variance amounted to a subsection (E) “effluent limitation,” subsection (E) requires “administrator’s action . . . approving or promulgating” an effluent limitation. Here the Administrator rejected the alleged effluent limitation. Second, despite the isolated language of the regulation, a permit based upon a variance is simply not an “effluent limitation or other limitation under section 1311, 1312, or 1316” within the meaning of subsection (E). A variance does serve to limit the discharge of effluents. However, the phrase “effluent limitation under section 1311, 1312 or 1316” is a term of art in the context of the Federal Water Pollution Control Act Amendments. Such an effluent limitation is a set of standards restricting the quantities of pollutants that enterprises in a given industry may discharge. See, e. g., E. I. du Pont de Nemours & Co. v. Train, supra, 430 U.S. 112, 126-137, 97 S.Ct. 965, 51 L.Ed.2d 204; Scott Paper, supra, 573 F.2d at 591-92; Natural Resources Defense Council, Inc. v. E.P.A., supra, 537 F.2d at 645; S.Rep.No.92-414, 92d Cong., 1st Sess. 50-51 (1971), U.S.Code Cong. & Admin.News 1972, p. 3668 reprinted in Senate Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. 1468-1469 (1973) (hereafter “Leg. Hist.”). Most factories and other point sources within a sub-category of an industry employ similar industrial processes, and so are generally able to limit their discharges to amounts which fall within those effluent limitations by adopting the best practically available pollution control technology. As the Supreme Court phrased it in E. I. du Pont de Nemours & Co. v. Train, supra, effluent limitations are sets of “regulations setting forth uniform effluent limitations for categories of plants.” 430 U.S. at 136, 97 S.Ct. at 979. Because such generalized effluent limitations may affect dozens or even hundreds of plants, it is understandable that Congress made the approval or promulgation of such effluent limitations directly reviewable in the courts of appeals. See Virginia Electric & Power Co. v. Costle, supra, 566 F.2d at 451. The two permits and variances at issue here have no similarly far reaching implications. Petitioners themselves assert that their two mills are the only bleached kraft pulp mills in the United States which discharge into open ocean waters, and argue that the proposed variances are valid for that reason. Petitioners’ brief at 9. In arguing that the rejections of the proposed variances did establish effluent limitations, petitioners correctly point out that the Administrator in part derives his power to approve and reject state proposed variances from his own implied authority to issue variances from the 1977 as well as the 1983 effluent limitations. His authority to issue variances from the 1977 limitations in turn is based in part upon his authority to promulgate effluent guidelines and limitations pursuant to sections 1311 and 1314. See du Pont, supra, 430 U.S. at 128, 97 S.Ct. 965; Weyerhaeuser, supra, 590 F.2d at 1031-1032. Nevertheless, the fact that the Administrator’s power to reject state proposed variances ultimately derives in part from his power to promulgate effluent limitations does not transform his rejection of state proposed variances for particular plants into the promulgation of effluent limitations. Subsection (E) provides for direct review of the promulgation of effluent limitations, not for direct review of all of the Administrator’s actions that may in any way be dependent upon the Administrator’s power to promulgate such limitations. The very idea of a variance also cuts against treating a permit based on a variance as establishing a new effluent limitation rather than simply an exception to an existing limitation. In another context, the District of Columbia Circuit broadly analogized one of the Act’s variance provisions to the variance clauses typically contained in local zoning ordinances. See . Weyerhaeu-ser, supra, 590 F.2d at 1034, n. 31. When a town board grants an individual zoning variance, that does not mean that it establishes a new zoning ordinance. When an effluent permit issuing authority grants a variance, it does no more than vary the application of an otherwise uniform effluent limitation. Because the Administrator has not here promulgated or approved any effluent limitation or other limitation under § 1311, § 1312, or § 1316, direct review is not available in this court pursuant to subsection (E) of § 1369(b)(1). But cf. Weyerhaeuser v. Costle, supra, 590 F.2d at 1033, n. 29. B. Subsection (F). Subsection (F) of § 1369(b)(1) provides for direct review in the courts of appeals of an EPA Administrator’s action “in issuing or denying any permit under Section 1342 of this title . . . .” In states where the EPA itself grants all permits, subsection (F) unquestionably provides for direct review. However, petitioners operate their mills in California, and as we have seen, California has received the Administrator’s approval to administer its own permit issuance program pursuant to § 1342(b). That provision thus limited the Administrator’s role in this case to vetoing the permit by objecting to it in writing within the ninety days, or doing nothing for ninety days, in which case the state could proceed to issue the permit, or waiving the ninety-day objection period, thus enabling the state to issue the permit immediately. See § 1342(d)(3). In the cases at bar, the Administrator took the position that all variances required his express approval. He then refused to approve the state proposed variances on their merits, and consequently objected to the permits. Petitioners argue that the Administrator’s course of conduct thus constituted “action . . denying [a] permit” within the meaning of subsection (F), because his actions prevented the state from issuing the permits. In Scott Paper, supra, we rejected precisely this argument. There, the Administrator vetoed a discharge permit issued to another pulp and paper company by a Washington state agency because the permit did not require the “best practicable control technology currently available,” 573 F.2d at 587. Like the California Board, the Washington state agency had been authorized to administer the permit granting program for the state of Washington pursuant to § 1342(b). On the basis of the “clear and unmistakable” language of the statute, 573 F.2d at 587, we held that subsection (F) “is limited to the Administrator and to his own action in issuing or denying a permit, not to his objection to a state’s action in doing so.” 573 F.2d at 586. We held that the Administrator’s limited involvement did not give rise to an agency relationship sufficient to bring the Administrator’s actions within the “issuing or denying” clause of subsection (F). Ibid; Accord, Shell Oil Co. v. Train, supra, 583 F.2d at 412. Our Scott Paper decision is directly in point, and controls our decision here, and we hold that we do not have jurisdiction to review the Administrator’s action pursuant to § 1369(b)(1). Cf. also Save the Bay, Inc. v. Administrator of the Environmental Protection Agency, 5 Cir., 1977, 556 F.2d 1282, 1290-1292. But see Shell Oil Co. v. Train, supra, 585 F.2d at 412 (dicta). We decline to ask the court to take this case in banc to consider overruling Scott Paper. The Sixth Circuit’s recent opinion in Republic Steel Corp. v. Costle, supra, 581 F.2d at 1230, n. 1, has not persuaded us that Scott Paper was wrongly decided. The case simply included a footnote which acknowledged the holding of Scott Paper, and announced that the Sixth Circuit would continue to follow its earlier decision in Ford Motor Co. v. E.P.A., supra, 567 F.2d at 668. Decided before Scott Paper, Ford Motor Company explained that the factual record in that case “ha[d] been sufficiently developed”' to enable the circuit court to “review adequately the action of [the] EPA” in objecting to a state issued permit modification. 567 F.2d at 661, 668. The Fifth Circuit had earlier relied upon the inadequacy of an administrative record in refusing to hear direct petitions under subsection (F) in cases where the record contained no more than the absence of any objection on the part of the Administrator, and thus did not “reveal what factors were considered by EPA in determining not to object . . .” Save the Bay, Inc. v. Administrator of E.P.A., supra, 556 F.2d at 1292. We need not, and do not, evaluate the adequacy of the administrative record in the cases before us, because Scott Paper did not hold that this court lacked jurisdiction because of the absence of a record. Rather, it relied upon the language of subsection (F) which it read as requiring the Administrator himself to have issued or denied the permit. While the impossibility of meaningful direct review does weigh decisively against construing a statute as dispensing with initial district court consideration, the mere feasibility of direct review by itself provides little warrant for disregarding the otherwise plain language of the jurisdictional statute. In Mianus River Preservation Commission v. EPA, 2 Cir., 1976, 541 F.2d 899, 909, the Second Circuit held itself without jurisdiction under subsection (F) to review the Administrator’s failure to object to a state proposed permit. It based that decision on its view that a failure to object does not constitute an “Administrator’s action” within the meaning of the direct review provision. In dicta, it did go on to state that a § 1342(d)(2)(B) objection “would clearly be subject to review as ‘Administrator’s action.’ ” 541 F.2d at 909. We fully agree that the Administrator’s vetoes in the cases before us amount to “Administrator’s action” within the meaning of the opening phrase of § 1369(b)(1). However, as discussed above, only six categories of “Administrator’s action” are subject to direct review. We simply do not believe that the Administrator’s objections equal “denying [a] permit” within the meaning of subsection (F). Because the Mianus dicta did not address this second question, it cannot persuade us that Scott Paper was wrongly decided. Our decision does not leave petitioners without a federal forum in which to challenge the Administrator’s veto. Under Scott Paper, supra, the district court would have jurisdiction to hear such a challenge. See 573 F.2d at 587-88. We recognize that under our decisions, whether a disappointed permit applicant must seek judicial review in the district court or in the court of appeals will depend upon whether the applicant operates in a state which has taken on primary permit issuing responsibility under § 1342(b). It does not strike us as at all incongruous that Congress would limit our direct review to states in which the EPA alone handles the permit process. The administration of the Act has already required the processing of over 42,000 permit applications. See du Pont, supra, 430 U.S. at 132, 97 S.Ct. 965. Because each application raises the possibility of a separate lawsuit, it seems quite reasonable that Congress may have intended to divide the burden of this potentially staggering new caseload between the district courts and the courts of appeals. Compare du Pont, supra, 430 U.S. at 127-28, n. 18, 97 S.Ct. 965. Nor will our decision undercut Congress’s intention “. . . that the discharge of pollutants into the navigable waters be eliminated . . .” as quickly as possible. See § 1251(a). We do anticipate that some district court decisions upholding vetoes of state proposed permits will be appealed to this court pursuant to 28 U.S.C. § 1291. It is thus fair to say that our decision will create a second level of review. Nevertheless, this second level of review will not automatically lead to further delays in the implementation of effluent limitations, if we give careful attention to Congress’ sense of urgency when passing upon applications for stays pending appeal. Because we lack subject matter jurisdiction, we dismiss the petitions for review. . The Administrator delegated his veto power to his regional administrators and directors of enforcement pursuant to 40 C.F.R. §§ 125.-5(a)(4) and 125.5(c). See Scott Paper, supra, 573 F.2d at 585, n. 3. In this opinion, we treat their actions as the Administrator’s. . The variance clause set forth in the regulations is a reviewable effluent limitation. In fact, petitioner Crown Simpson filed a timely application with this court pursuant to subsection (E), to set aside the pulp industry effluent limitation regulations including the variance clause whose application is at issue here. That generalized challenge to the regulations was eventually transferred to the District of Columbia Circuit which upheld the regulations, including the variance clause. See Weyerhaeu-ser Co. v. Costle, supra, 191 U.S.App.D.C. at 320, 329-339, 590 F.2d at 1022, 1031-1041. Weyerhaeuser left open the possibility of a subsequent challenge to the variance clause as applied. 590 F.2d at 1033, n. 29. We agree that an applicant may raise a challenge to a variance regulation as applied as part of a petition to review an Administrator’s veto of a permit based upon a proposed but rejected variance. However, we hold, infra, that veto of a state permit is not directly reviewable in this court, but rather is reviewable in the district court. Thus a challenge to a variance regulation as applied in such a case must await a properly brought action in the district court challenging the veto of the permit which contained the variance. . The variance clause also provides that Such limitations must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations or initiate proceedings to revise these regulations. (emphasis added) Here, the Administrator has not taken the initiative to “specify other limitations” by himself granting a less lenient variance. We thus need not decide whether the direct granting of such an alternative variance would be directly reviewable under subsection (E) as a limitation pursuant to § 1311(c). . We are aware that the language of the second paragraph of Part II of the' Supreme Court’s opinion in du Pont, supra, may suggest that if the Administrator grants or denies a variance under § 1311(c), his action is reviewable in the court of appeals under subsection (E), as the “approving or promulgating [of an] other limitation under section 301 . . . See 430 U.S. at 136, 97 S.Ct. at 979. In Part II (B) of this opinion, infra, we explain why we do not equate an Administrator’s action in vetoing or failing to object to a state proposed permit with the Administrator’s grant or denial of a permit within the meaning of § 1369(b)(1)(F). For the same reasons, we would not equate an Administrator’s action in approving, rejecting, or failing to object to a state proposed variance with granting or denying a variance within the meaning of § 1311(c). In the absence of any direct granting or denying under § 1311(c), the possible reviewability of the Administrator’s action under that section cannot provide us with subsection (E) jurisdiction to reach the merits. But see Shell Oil Co. v. Train, supra, 585 F.2d at 412 (dictum). In any event, § 1311(c) only applies to permit applications “filed after July 1, 1977.” Petitioners’ applications were filed with the California State Water Resources Control Board in 1976. . Scott Paper appears to have held district court jurisdiction available under Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See 573 F.2d at 588, 590. While Califano v. Sanders, 1977, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192, held that the APA is not an implied grant of federal subject matter jurisdiction, the Scott Paper rationale just as strongly supports holding jurisdiction available under 28 U.S.C. § 1331(a). See Andrus v. Charlestone Stone Products Co., 1978, 436 U.S. 604, 607-608, n. 6, 98 S.Ct. 2002, 56 L.Ed.2d 570; Laden v. Andrus, 9 Cir., 1978, 595 F.2d 482, 484 (1979). See also Shell Oil Co. v. Train, supra, 585 F.2d at 419-20 (dissenting opinion).

Crown Simpson Pulp Co. v. Costle

RENFREW, District Judge (concurring). I concur. I am in total agreement that subsection (E) of 33 U.S.C. § 1369(b)(1) does not give this Court jurisdiction. Judge Dun-iway’s thoughtful analysis makes this result abundantly clear. In addition, I agree that the question of our jurisdiction under subsection (F) is controlled by Scott Paper. However, I believe that that case was wrongly decided, and I therefore urge the Court to take the present case en banc to consider overruling Scott Paper. Section 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F), vests the courts of appeals with jurisdiction to review the action of the Administrator “in issuing or denying any [NPDES] permit”. In those states that do not administer their own NPDES permit system pursuant to 33 U.S.C. § 1342(b) this provision is easily applied. Since the Administrator is directly responsible for issuing or denying the requested permits, his action, whether affirmative or negative, is immediately subject to review by the courts of appeals. However, in states such as California and Washington that have received EPA approval to administer their own NPDES programs, application of subsection (F) is not as clear. In those states the Administrator does not issue or deny permits directly. Rather, he either “objects in writing to the issuance of such permit,” or, by his inaction for a period of 90 days, approves the state’s issuance. 33 U.S.C. § 1342(d)(2)(B). The issue in Scott Paper, as in the case before us, was whether the EPA Administrator’s written objection to a state-issued permit constituted “action * * * denying any permit” under subsection (F). The Court in Scott Paper held that it did not. I do not believe this was the proper result. One of Congress’s stated goals in enacting the Federal Water Pollution Control Act was to eliminate the discharge of pollutants into this country’s navigable waters by 1985. See 33 U.S.C. § 1251(a)(1). Recognizing that a two-tiered level of judicial review might threaten realization of this goal, Congress vested the courts of appeals with jurisdiction to review many of the actions of the Administrator directly. As the Court of Appeals for the Second Circuit has noted: “The fact that judicial review of the actions covered by § 1369(b)(1) is in the Court of Appeals in the first instance evidences a purpose, inter alia, to save procedural steps and time. After the EPA has completed its administrative proceeding and either denied or issued a permit, to allow challenges to its jurisdiction then to be heard first in the district court would merely cause duplication and delay.” Central Hudson Gas, Etc. v. United States E. P. A., 587 F.2d 549, 557 (2 Cir. 1978) (footnote omitted). See also duPont v. Train, 528 F.2d 1136, 1141-1142 (4 Cir. 1975), aff’d, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). Congress’s goal of ensuring prompt resolution of challenges to the Administrator’s actions can best be realized by interpreting “denying [a] permit” to include “objectfing] in writing.” This result would be consistent with Congressional goals. It would vest the courts of appeals with jurisdiction over the Administrator’s “vetoes” in states that administer their own NPDES permit programs as well as in states that do not. Moreover, it would recognize that the functional effect of an administrative veto is that the requested NPDES permit is denied. See 33 U.S.C. § 1342(d)(2)(B) (“No permit shall issue * * * if the Administrator * * * objects in writing * *.”) (emphasis added). Of course, it would not be appropriate to vest jurisdiction in the courts of appeals if the administrative record resulting from the Administrator’s action were insufficient or inadequate for review. However, while the incompleteness of the record might be a reason for withholding jurisdiction from the courts of appeals over cases in which the Administrator approved a state-issued permit — a process that requires no more than silent acquiescence for the 90-day statutory period — it is not a reason for withholding jurisdiction over cases in which the Administrator filed a written objection to a state-issued permit. The administrative record is more complete, and therefore more susceptible to appellate review, in the latter group of cases. The two cases relied upon by this Court in Scott Paper support this position. In Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282 (5 Cir.), rehearing denied, 560 F.2d 1023 (1977), the Fifth Circuit held that it had no jurisdiction under subsection (F) to review the Administrator’s failure to object to a state-issued permit. In reaching this conclusion, the Court was influenced by the inadequacy of the administrative record. “The administrative record here is wholly inadequate to reveal what factors were considered by EPA in determining not to object ***.*** when Congress has vested this court with original review, it generally has done so in relation to an administrative process that more easily lends itself to production of a reviewable record.” 556 F.2d at 1292. When the Administrator vetoes a state-issued permit, as in Scott Paper and the case before us, however, he creates an administrative record. Therefore, the reasoning behind the Fifth Circuit’s opinion is not applicable. It is perhaps in recognition of this distinction that the Court stated: “We note that by our decision we suggest no answer to the question whether a veto by EPA would be reviewable directly in this court.” 556 F.2d at 1292 n.13. The Court of Appeals for the Second Circuit employed a similar analysis in Mianus River Pres. Comm. v. Administrator, 541 F. 2d 899 (2 Cir. 1976). Like the Court of Appeals for the Fifth Circuit, it declined to assert subsection (F) jurisdiction over the Administrator’s failure to veto a state-issued permit. However, it made even more explicit the distinction between inaction and veto: “Admittedly, had the Administrator exercised his right of review and rejected the Water Company’s permit application, that rejection would clearly be subject to review as ‘Administrator’s action.’ ” 541 F.2d at 909 (footnote omitted). In addition to the cases cited in Scott Paper, I obtain support for my position in two cases arising in the Sixth Circuit, Republic Steel Corp. v. Costle, 581 F.2d 1228 (6 Cir. 1978), and Ford Motor Co. v. E. P. A., 567 F.2d 661 (6 Cir. 1977). Both of these cases specifically held that subsection (F) does vest the courts of appeals with jurisdiction to review the Administrator’s written objection to state-issued permits. In Ford Motor Co., the court indicated that one of its bases for decision was that “[t]he factual record in this case has been sufficiently developed that this Court can review adequately the action of EPA.” 567 F.2d at 668. Moreover, in Republic Steel the court not only rejected the analysis in Scott Paper, but also cited in support of its contrary result the Mianus River decision discussed above. 581 F.2d at 1230 n.1. Somewhat ironically, the Scott Paper decision itself underscores the need for immediate appellate review of the Administrator’s vetoes of state-issued NPDES permits. In Scott Paper, after the panel concluded that it lacked subject matter jurisdiction under subsection (F) to review Scott Paper’s petition, 573 F.2d at 587, it made the remarkable statement: “Although we hold that the district court has jurisdiction to entertain Scott’s challenge to the Administrator’s objection to the Anacortes permit, we need not, in light of the record before us, remand the case for additional proceedings. That course is made unnecessary by the presence of a dispositive legal issue which we resolve in the interests of judicial economy. Cf. Save the Bay, Inc. v. Administrator of E. P. A., supra, 556 F.2d at 1292.” Id. at 588. Considerations of “judicial economy” notwithstanding, it has long been a fundamental principle of our federal system that a court has no power to entertain a case where subject matter jurisdiction is lacking. See, e. g., Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448, 450, 12 L.Ed. 1147 (1850); Turner v. President, Directors and Co. of the Bank of North America, 4 Dallas 8, 11 (1799). The willingness of the Court of Appeals to violate this principle in Scott Paper not only lends credence to my conclusion that appellate courts should dispose of petitions challenging the Administrator’s vetoes, but it also demonstrates' that the record before them is sufficiently developed that they can do so. Finally, I note that Shell Oil Co. v. Train, 585 F.2d 408 (9 Cir. 1978), cited by Judge Duniway with a “But see ” signal, is in part contrary to the result reached by my colleagues. It therefore furnishes another ground for en banc review. The issue in Shell Oil was whether the Court of Appeals had jurisdiction under subsection (F) to review the state regional board’s denial of an NPDES permit. Shell had alleged that even though the denial was by a state agency, that agency had been “caused” to deny the permit by the EPA. However the Court of Appeals held that Scott Paper was not controlling because “Shell [had] not alleged an actual veto by the EPA of the regional board’s decision.” 585 F.2d at 413. In the part of the opinion that supports the position I take here, however, the Court focused on a second action brought by Shell to challenge the regional board’s denial of its requested permit. In addition to the federal suit then before the Court, Shell had sought review of the regional board’s action by petitioning the California State Water Resources Control Board. While the federal action was pending in district court, the state board reversed the regional board and granted Shell a variance on its Class E permit. The proposed variance was then transmitted to the EPA Administrator pursuant to 33 U.S.C. § 1342(d), and he vetoed it by filing a written objection. “That decision,” wrote the majority of the panel, “is reviewable in this court under 33 U.S.C. § 1369(b)(1).” 585 F.2d at 412. The only subsection of § 1369(b)(1) the Court could have been referring to was subsection (F). Thus, the dicta in Shell Oil directly contradicts Scott Paper and supports the position I have taken. In conclusion, I urge the Court to reconsider Scott Paper by taking the present case en banc. Because of the congressional desire for speedy resolution of disputes under the Act, the need for a consistent system of judicial review, the functional effect of the Administrator’s written objections, and the sufficiency of the administrative record, I would find that the courts of appeals, rather than the district courts, have initial jurisdiction to review the Administrator’s vetoes of state-issued NPDES permits. . Once the Administrator files his written objection, the administrative record is certainly sufficient for the courts of appeals to review. At a minimum, it contains a copy of the proposed permit, a “statement of the reasons for the objection (including the section of the Act or regulations that support the objection), and “[A statement of the] actions that must be taken by the Director in order to eliminate the objection (including the effluent limitations and conditions which the permit would include if it were issued by the Regional Administrator).” 40 C.F.R. §§ 124.47(a), 124.-48(a)(2). Also, unless the Regional Administrator of the EPA expressly waives his right to receive the following information pursuant to 40 C.F.R. § 124.47(e), the administrative record will contain “all terms, conditions, requirements or documents that are a part of any proposed permit or that affect the authorization by the proposed permit of the discharge of pollutants [as well as] a copy of any significant comments presented in writing pursuant to the public notice and a summary of any significant comments presented at any hearing, for any NPDES application if: “(1) The Regional Administrator requests this information; or “(2) The proposed permit contains requirements different from or less stringent than those contained in the tentative determination and draft permit; or “(3) Significant comments adverse to the tentative determination and draft permit have been presented at the hearing or in writing pursuant to the public notice.” 40 C.F.R. § 124.47(b), (c). Moreover, “[f]or every discharge which has a total volume of more than 500,000 gallons on any day of the year, [the administrative record will contain a fact sheet]. The contents of such fact sheets shall include at least the following information * * *: “(1) A sketch or detailed description of the location of the discharge described in the NPDES application; “(2) A quantitative description of the discharge described in the NPDES application which includes at least the following: “(i) The rate or frequency of the proposed discharge; if the discharge is continuous, the average daily flow in gallons per day or million gallons per day; “(ii) For thermal discharges subject to limitation under the Act, the average summer and winter temperatures in degrees Fahrenheit; and “(iii) The average daily discharge in pounds per day of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under sections 301, 302, 306, or 307 of the Act and regulations published thereunder; “(3) The tentative determinations required under § 124.31; “(4) A brief citation, including a brief identification of the uses for which the receiving waters have been classified, of the water quality standards and effluent standards and limitations applied to the proposed discharge; and “(5) A fuller description of the procedures for the formulation of final determinations than that given in the public notic,e including: “(i) The 30-day comment period required by § 124.32(b); “(ii) Procedures for requesting a public hearing and the nature thereof; and “(iii) Any other procedures by which the public may participate in the formulation of the final determinations.” 40 C.F.R. § 124.-33; see 40 C.F.R. § 124.48(c)(1). Finally, if the Regional Administrator had been unable to decide whether to object because the information before him was inadequate, he could have supplemented the administrative record with “the complete record of the permit proceedings before the State.” 40 C.F.R. § 124.48(c)(2). . See State of Washington v. United States Environmental Protection Agency, 573 F.2d 583, 587 (9 Cir. 1978) (Scott Paper).

Citizen For A Better Environment v. Agency

SWYGERT, Circuit Judge. Petitioner, Citizens for a Better Environment (“Citizens”), 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). 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. 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. 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. § 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-Din-gell amendments which were adopted in substance in the Act, emphasized . the importance of section 101(e) of this bill which encourages public participation in the development, revision and enforcement of various actions taken under this statute. I sincerely hope that the Administrator understands that this applies across the board, including the establishment of the permit program under section 402 of the bill. I Legislative History at 108. See also 5. 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. 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. 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. lllVfe, 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. 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. § 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. . Citizens for a Better Environment is a nonprofit corporation organized under the laws of the State of Illinois. . Section 509(b)(1)(D) provides: Review of the Administrator’s action in making any determination as to a State permit program submitted under section 402(b) * * * * * * may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within 90 days of such determination ... or after such date only if such application is based solely on grounds which arose after such ninetieth day. 33 U.S.C. § 1369(b)(1)(D). . Citizens does not dispute the EPA’s contention that the Illinois program meets the guidelines found in 40 C.F.R. Part 124, but instead argues that these guidelines are deficient with respect to public participation in the state enforcement process. . The statutory mandate for EPA guidelines regarding state NPDES programs is found in section 304(i), 33 U.S.C. § 1314(i): Guidelines for monitoring, reporting, enforcement, funding, personnel, and manpower * * * jH * * (i) The administrator shall ... (2) within sixty days from October 18, 1972, promulgate guidelines establishing the minimum procedural and other elements of any State program under section 1342 of this title which shall include: (A) monitoring requirements; (B) reporting requirements (including procedures to make information available to the public); (C) enforcement provisions; and (D) funding, personnel qualifications, and manpower requirements (including a requirement that no board or body which approves permit applications or portions thereof shall include, as a member, any person who receives, or has during the previous two years received, a significant portion of his income directly or indirectly from permit holders or applicants for a permit). Section 402(b), 33 U.S.C. § 1342(b), sets out the relevant statutory prerequisites for EPA approval of a state program: State permit programs * * * * * * (b) At any time after the promulgation of the guidelines required by subsection (h)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each such submitted program unless he determines that adequate authority does not exist: ****** (7) To abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement. . The EPA contends that the state program guidelines promulgated by the Administrator, 40 C.F.R. Part 124, represent a balancing of interests in which, apparently, the desire to allow states significant control over their own programs, see § 101(b), 33 U.S.C. § 1251(b), precluded guidelines requiring public participation in state programs. Respondents’ Brief, p. 14. The EPA never explains the distinction between the constraint a public participation guideline would impose on state control over its program from that imposed by any guideline. Yet Congress clearly intended such guidelines to be an essential element of the national NPDES program. Further, given the fact that Congress’ explicit directive regarding public participation guidelines is in the same section of the Act as its encouragement of state responsibility, it is unlikely that it saw a conflict between the two objectives which could justify an Administrator’s failure to promulgate such guidelines. . The only regulations promulgated by the Administrator requiring public participation in state NPDES programs concern participation in NPDES permit determinations. See 40 C.F.R. Part 124(D). The EPA guidelines concerning state enforcement procedures say nothing about public participation in the process. See 40 C.F.R. Part 124.73. . Citizens contends that the federal citizen suit provision in the Act, section 505, 33 U.S.C. § 1365, defines the public participation in state enforcement required by section 101(e), 33 U.S.C. § 1251(e). This contention is based primarily on Citizens’ argument that section 402(a)(3), 33 U.S.C. 1342(a)(3) requires that federal and state programs be as identical as possible. The language of this section, however, does not suggest that state programs are required to adopt the citizen participation components of the federal program; section 402(a)(3) requires only that the federal program “be subject to the same terms, conditions and requirements as apply to a state permit program.” 33 U.S.C. § 1342(a)(3). Citizens, however, also points to more general language in the statute and its legislative history indicating that Congress intended state and federal programs to be as uniform as possible. See § 103, 33 U.S.C. § 1253(a); S.Rep. No. 414, 92d Cong., 1st Sess., 54 (1971), reprinted in II Legislative History at 1472. We do not decide today what provisions must be made for citizen participation in the state NPDES enforcement process in order to satisfy the requirements of the Act. . In fact, section 402(b) contemplates the establishment of guidelines prior to the submission of a state program to the Administrator of the EPA for review.

Citizen For A Better Environment v. Agency

On Petition for Rehearing. SWYGERT, Circuit Judge. In its brief to this court in Citizens for a Better Environment v. EPA, 596 F.2d 720 (7th Cir., 1979), the Environmental Protection Agency (EPA) stated: Pursuant to Section 402(b) of the Act, 33 U.S.C. § 1342(b), a state NPDES permit program, in order to be approved by the Administrator, must contain adequate authority to satisfy nine criteria enumerated in Section 402(b)(l}-(b)(9). Detailing, supplementing and explaining these requirements are procedural, monitoring and enforcement guidelines established by EPA pursuant to Section 304(i)(2) of the Act. Those guidelines, 40 C.F.R. Part 124, and the elements of Section 402(b) are the only statutory and regulatory requirements for state NPDES programs. Unless the Administrator determines that a state’s proposed program does not satisfy these requirements, he must approve the program. Save the Bay, Inc. v. Administrator, 556 F.2d 1282, 1285 (5th Cir. 1977). (Emphasis added.) Brief for Respondent, at p. 10. Now, in its motion for rehearing, EPA belatedly proffers regulations issued pursuant to section 101(e) of the Clean Water Act, 33 U.S.C. § 1251(e), 40 C.F.R. Part 105, which it contends satisfy EPA’s statutory duty to promulgate regulations promoting public participation in state enforcement actions under the Act. Similarly, the State of Illinois appears for the first time in these proceedings, which are testing the validity of its own water pollution control program, and notes the existence of the regulations at 40 C.F.R. Part 105. The regulations now offered by EPA and the State pay lip-service, at best, to the Congressional directive that EPA guidelines encourage public participation in state enforcement actions. (This mandate is discussed at length in our opinion in Citizens for a Better Environment, supra.) Despite its verbiage, section (f), in effect, requires only that a state agency answer its telephone and listen and look into the complaints of a private citizen. There is no provision for the participation of a private citizen in the enforcement process itself. This provision is no more than a legalistic articulation of a common courtesy and hardly can be cited as satisfaction of the EPA’s statutory duty to issue regulations promoting public participation in state enforcement. Similarly, section (g) states only that a state agency cannot conceal from the public information requested by a private citizen when that information is already of public record because it is part of a legal proceeding. This regulation merely states the obvious; there is no explanation how it will “encourage” public participation in the enforcement process. Interestingly, the requirement in section (g) that the EPA comply with already existing Justice Department regulations regarding public comment prior to the approval of consent decrees is expressly applicable only to the EPA and not to state agencies. And the remaining provisions of 40 C.F.R. Part 105 do nothing to mandate citizen participation in the state enforcement process. Thus, the regulations promulgated under section 101(e) of the Act, 33 U.S.C. § 1251(e), do not alter the conclusion reached in Citizens for a Better Environment, supra, and the motion for rehearing is denied. . The State of Illinois represents that neither it nor its Environmental Protection Agency was given notice of the pendency of the original proceeding. . EPA also argues that the guidelines found in 40 C.F.R. Part 124 satisfy this statutory requirement. That argument was analyzed and dismissed in our opinion in Citizens for a Better Environment, supra, at 724, nn. 6-7. The most relevant regulations at 40 C.F.R. Part 105 read: (f) Enforcement. Each [state] agency shall develop internal procedures for receiving and ensuring proper consideration of information and evidence submitted by citizens. Public effort in reporting violations of water pollution control laws shall be encouraged, and the procedures for such reporting shall be set forth by the agency. Alleged violations shall be promptly investigated by the Agency. (g) Legal Proceedings. Each agency shall provide full and open information on legal proceedings under the Act, to the extent not inconsistent with court requirements, and where such disclosure would not prejudice the conduct of the litigation. Actions of the Environmental Protection Agency shall support and be consistent with this Statement of Policy issued by the Department of Justice with regard to affording opportunities for public comment before the Department of Justice consents to a proposed judgment in an action to enjoin discharges of pollutants into the environment. (See Title 28, Code of Federal Regulations, Chapter 1, § 50.7). 40 C.F.R. Part 105.4. . We are aware that EPA repeatedly has commented on the disruptive effect this ruling will have on water pollution enforcement in Illinois and, perhaps, throughout the nation. Yet EPA has never offered any evidence or arguments detailing this disruption nor has it moved for an order staying enforcement of our ruling until it could comply expeditiously with its statutory rulemaking responsibilities.

Republic Steel Corp. v. Train

CELEBREZZE, Circuit Judge. This case of first impression arises under the 1972 amendments to the Federal Water Pollution Control Act, P.L. 92-500. The question presented is whether failure of the Administrator of the United States Environmental Protection Agency (EPA) to define interim effluent limitations reflecting a given level of pollution control technology, as required by the Act, frees an authorized state agency to issue a discharge permit which sanctions noncompliance with the statutory deadline for achieving that degree of effluent abatement. The law in the case consists of three interdependent provisions of the Act which are at the crux of the regulatory scheme to control point sources of water pollution. Section 301(b) defines an inflexible schedule for achieving two interim levels of effluent abatement in furtherance of “the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” Section 101(a)(1). Key to this litigation is the subsection 301(b)(l)(A)(i) requirement of conformity by July 1, 1977 with “effluent limitations for point sources * * * which shall require the application of the best practicable control technology currently available [BPT] as defined by the Administrator pursuant to section [304(b)] of [the Act] * * *.” Section 304(b)(1), in turn, obligates the Administrator to publish by October 18, 1973, regulations establishing effluent guidelines reflecting BPT for categories of dischargers including iron and steel manufacturing. See section 306(b)(1)(A). Pollution control standards promulgated pursuant to sections 301 and 304 are implemented nationally through a decentralized permit granting mechanism defined in section 402 as the National Pollutant Discharge Elimination System (NPDES). Subsection 402(a)(1) empowers EPA in the normal course to issue permits which impose industry-wide effluent limitations which it has already defined. In addition, EPA may define these limitations on a case by case basis “prior to the taking of necessary implementing actions relating to all such requirements” (i.e., while rule making is still in progress). Id. Subsection 402(b) directs the Administrator to delegate permit granting authority to states which have proposed self-regulatory programs which are operationally compatible with uniform administration of the Act. To ensure that qualifying state environmental agencies apply effluent limitations evenhandedly, subsection 402(d)(2)(B) empowers the Administrator to block issuance of any proposed NPDES permit which he deems to be “outside the guidelines and requirements of [the Act].” Id. Whether federal or state in origin, all NPDES permits must ensure compliance with “applicable requirements” of six enumerated provisions of the Act including section 301. In addition, all permits must issue on or before December 31,1974, pursuant to subsection 402(k). In July, 1972, Republic Steel Corporation (Republic) applied for a federal permit to continue discharging effluents from its Canton, Ohio steel mill into Nimishillen Creek. The Canton mill is an integrated steel manufacturing operation engaged primarily in the processing of alloy and stainless steel. In March, 1974, Ohio received approval from EPA under section 402(b) to begin issuing NPDES permits, and Republic immediately commenced to negotiate with the Ohio Environmental Protection Agency (Ohio EPA). In June, 1974, Ohio EPA issued a draft permit for the Canton mill which incorporated state defined effluent limitations under state estimates of BPT. The permit provided for a 24 month compliance schedule compatible with the Act’s July 1, 1977 interim implementation deadline. At that time EPA had failed to promulgate any section 304(b) effluent limitation guidelines for iron and steel manufacturing. As of the present date no final regulations exist covering alloy and stainless steel operation. Understandably, in the absence of controlling federal regulations, Republic sought to exploit available state administrative procedures to secure the most favorable permit terms and conditions. Prolonged hearings and negotiations with Ohio EPA resulted in redefinition of the originally proposed effluent limitations. On August 1, 1975, eight months after the last date envisioned by Congress for routine issuance of NPDES permits, final agreement was reached and the implementation period commenced to run. However, Republic continued to assert that full compliance within 24 months was physically impossible. This prompted further adjudication hearings at which Republic presented unchallenged engineering and procurement data which convinced Ohio EPA to modify the permit to allow 42 months for development and installation of antipollution devices. Ohio EPA was aware that this change extended compliance beyond the July 1, 1977, date imposed by section 301(b)(l)(A)(i). However, the state administrator believed that the special circumstances of the case legally justified this deviation. In January, 1976, Ohio EPA transmitted the final NPDES permit to EPA’s Region V office as required by section 402(d)(1). Within 90 days the Director of the Enforcement Division of Region V objected to its issuance, exercising his authority under section 402(d)(2)(B). He did not expressly question the reasonableness of the' state’s BPT effluent standards or the 42 month implementation schedule. Rather, he concluded that the permit violated section 301 because full compliance would not be achieved until after July 1, 1977. Republic filed a timely petition for judicial review, pursuant to section 509(b)(1)(F), challenging this determination. We do not question EPA’s good faith in attempting to discharge the ambitious and often ambiguous duties imposed upon it by a “poorly drafted and astonishingly imprecise statute.” E. I. du Pont de Nemours & Company v. Train, 541 F.2d 1018, 1026 (4th Cir. 1976). Many factors, some admittedly beyond EPA’s control, have conspired to frustrate its legitimate compliance efforts. In particular, virtually every exercise of the agency’s discretion has precipitated protracted litigation challenging the legitimacy of its authority or the substance of its “final” regulations. See American Petroleum Institute v. Environmental Protection Agency, 540 F.2d 1023, 1027 (10th Cir. 1976) (thirteen relevant cases cited). The fact remains, however, that the imperative nature of EPA’s rule making responsibilities under the Act has been confirmed through litigation. In 1975, the United States Court of Appeals for the District of Columbia affirmed the authority of a federal district court to compel the agency to adhere to a remedial, court imposed timetable for the publication of guidelines for all point source effluent discharges. Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975). Unfortunately, judicial intervention did not avert the regrettable situation which confronts us here. The inability of EPA to meet its statutory obligations has distorted the regulatory scheme and imposed additional burdens which must be equitably distributed. This task is a difficult one because of the nature of the available options. Either the affected discharger must be compelled to risk potential enforcement proceedings in spite of an abbreviated compliance schedule, or society must tolerate slippage of an interim pollution abatement deadline. Republic contends that the language of section 301(b)(l)(A)(i) expressly conditions adherence to the July 1,1977, deadline upon definition by the Administrator of BPT effluent limitations and guidelines pursuant to section 304(b) of the Act. Therefore, the Administrator’s failure to satisfy this condition precedent by publishing final regulations for alloy and stainless steel manufacturing excuses Republic’s noncompliance with the July 1 date. We reluctantly agree. The import of the section is unequivocal: federal regulations must exist before dischargers can be compelled to honor dates for implementing them. See United States v. GAF Corporation, 389 F.Supp. 1379, 1386 (S.D.Tex.1975). The presence within the Act of successive deadlines for promulgation of standards, issuance of permits, and conformance with effluent limitations bespeaks a rational implementation strategy anticipating a discrete sequence of events: The Act’s text and its legislative history make clear that as a general matter the section 304(b)(1) guidelines and the section 301(b)(1) limitations were to be developed prior to the issuance of permits. Sections 402(a) and 402(b) require that permits issued by the Administrator and by the states assure compliance with the effluent limitations of section 301. The Senate Report confirms the interdependence of the three provisions. That report states that “[s]ubsection (b) of this section [304] requires the Administrator, within one year after enactment, to publish guidelines for setting effluent limitations reflecting the mandate of section 301, which will be imposed as conditions of permits issued under section 402.” Another portion of the Senate Report indicates that at least 30 months lead time is required to afford industries an opportunity to complete construction and modifications necessary to comply with the phase one effluent limitation deadline. Under the final version of the Act, effluent limitations and permits would be required by December 31, 1974, in order to provide polluters 30 months to comply with the July 1, 1977, deadline. Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 707-708 (1975) (footnotes omitted). The crucial role of federal rule making in achieving meaningful pollution control on a national scale is revealed by the Third Circuit’s analysis in American Iron and Steel Institute v. EPA: [W]e reconcile sections 301 and 304 in the following manner: the section 301 limitations represent both the base level or minimum degree of effluent control permissible and the ceiling (or maximum amount of effluent discharge) permissible nationwide within a given category, and the section 304 guidelines are intended to provide precise guidance to the permit-issuing authorities in establishing a permissible level of discharge that is more stringent than the ceiling. 526 F.2d 1027, 1045 (3rd Cir. 1975). (emphasis added). If no federal standards exist, any state limitations on discharge, no matter how insignificant, become more stringent than nonexistent ceilings imposed by the Act. See section 301(b)(1)(C). Surely Congress did not intend for the Act to be construed to foster token, ad hoc, clean up efforts which would inevitably defeat achievement of the goal of zero pollution by 1985. EPA answers Republic’s argument by exhorting us to accept the “plain meaning” of section 301(b)(1)(A). The agency contends that the language of the section admits to no other interpretation than that July 1, 1977 is to be a “uniform deadline on all industrial dischargers, * * * plain, unequivocal and mandatory.” Unfortunately EPA’s argument is persuasive only if we accept an expurgated version of the section which omits reference to the duty owed by the Administrator to publish regulations by a fixed date. EPA correctly points out that the Act is devoid of language countenancing exceptions to the July 1,1977, deadline under any condition. The Act’s legislative history is replete with statements attesting to the inflexible nature of the administrative timetable. In addition, Congress rejected a provision in the House version of the measure which would have allowed dischargers a discretionary extension of time in the face of impending noncompliance due to physical or legal impossibility. Nevertheless, nothing cited to us by EPA suggests that Congress anticipated the “Catch 22” situation inherent in the facts of this case. The language of the Act and its legislative history make clear that Congress expected EPA to define the rules before subjecting dischargers to potential civil and criminal penalties. Natural Resources Defense Council, Inc. v. Train, supra. EPA attempts to bolster its position by emphasizing its authority under section 402(a)(1), in advance of formally promulgated regulations, to issue and enforce NPDES permits imposing “such conditions as the Administrator determines are necessary to carry out the provisions of the Act.” Id. From this, it would have us conclude that the duty of the discharger to achieve BPT by July 1, 1977, must be independent of EPA’s obligation to promulgate the necessary guidelines by October 18, 1973. EPA cites Bethlehem Steel Corporation v. Train, 544 F.2d 657 (3rd Cir. 1976), and United States v. Cutter Laboratories, Inc., 413 F.Supp. 1295 (E.D.Tenn.1976), in support of this position. A careful reading of both opinions confirms that EPA’s reliance upon them is misplaced. The Third Circuit correctly categorizes EPA’s authority under section 402(a)(1) to issue NPDES permits on a case by case basis as a temporary expedient to ensure immediate progress during the year of rule making contemplated by section 402(b): As a result [of the nonexistence of sections 304 and 301 guidelines and limitations for iron and steel manufacturing as of the date of the opinion], permits have been issued to iron and steel manufacturers under a clause of section 402(a)(1) that empowers the EPA to grant permits, on an interim basis, before formal guidelines are promulgated. Bethlehem Steel Corporation v. Train, 544 F.2d at 659 (emphasis added). In the Bethlehem Steel case EPA granted the permit on December 31, 1974, the last day mandated by Congress for routine issuance of NPDES permits. Therefore, Bethlehem Steel enjoyed a 30 month compliance schedule, the minimum period possible under the statutory scheme assuming no administrative slippage. In contrast, Republic’s permit was issued by a state agency eight months after expiration of the permit granting deadline, affording Republic only 24 months for compliance. This factual difference was not overlooked by the Third Circuit which carefully excludes Republic’s situation from the purview of its holding in the Bethlehem Steel case. We read the Bethlehem Steel and Cutter Laboratory decisions as standing for the limited proposition that a July 1, 1977, deadline, written into an NPDES permit issued by EPA on or before December 31, 1974, is enforceable despite the absence of BPT federal guidelines. Although we may share this view, we find no persuasive authority for extending its application to permits issued by EPA after 1974. In addition, we are convinced that the Act expressly forecloses this result when the permit issuing authority is a state agency. Section 402(b)(1)(A) empowers states to issue NPDES permits which “apply, and insure compliance with, any applicable requirements of sections 301, * * * of [the Act].” Id. Our holding that section 301(b)(l)(A)(i) is made unenforceable by the Administrator’s failure to promulgate necessary regulations is tantamount to a finding that the July 1, 1977, deadline is no longer an “applicable requirement” of the Act. Therefore, in this case, Ohio EPA was not bound to apply it and EPA was without authority to object to the proposed permit on this ground. EPA’s final contention is that it complied with the rule making requirements of section 304(b) by implicitly ratifying the effluent limitations defined by Ohio EPA. EPA ignores the actual language of section 301(b)(l)(A)(i) which demands that BPT guidelines be promulgated pursuant to the procedure set forth in section 304(b). Ohio EPA did not follow that procedure for the obvious reason that section 304(b) is exclusively addressed to the Administrator of EPA. We reject the notion that state action can be federalized sub silentio by the mere acquiescence of an administrative agency in the absence of clear statutory provisions to that effect. Republic urges us to remand the case to EPA with directions that the agency unconditionally approve immediate issuance of Republic’s NPDES permit in its original form. However, the record suggests a more appropriate remedy. If we assume that the Administrator satisfactorily performed all the tasks incumbent upon him under sections 301 and 304, Republic could not have received its permit any earlier than September 1, 1974. This would have afforded no more than 34 months to achieve final BPT effluent limitations. The actual permit provides 42 months, eight more than Republic would have been entitled to had there been no distortion of the Act’s timetable. Our disposition of this case is intended to relieve the discharger of the unfair consequences flowing from EPA’s administrative shortcomings. It is not intended to bestow special benefits not enjoyed by other permittees. EPA is not foreclosed from objecting to Republic’s permit on grounds other than the termination date of its compliance schedule. Under the special circumstances of this case, we believe that EPA must be granted a second opportunity to scrutinize the balance of the permit for consistency with the Act. Perhaps the inherent reasonableness of the proposed 42 month period is amenable to administrative review under existing regulations or sections other than 301. That is for EPA to determine in the first instance. To guard against the possibility that situ-. ations such as this will prompt state agencies to propose extravagant compliance schedules, we remand the case to EPA with directions that the agency acquiesce to issuance by Ohio EPA of Republic’s NPDES permit unless, within 30 days, it specifies persuasive new grounds for objection under section 402(d)(2)(B). Remanded. . 33 U.S.C. § 1251 et seq. (Supp. III 1973). . 33 U.S.C. § 1311(b). . 33 U.S.C. § 1314(b)(1). . 33 U.S.C. § 1316(b)(1)(A) lists the minimum industry categories of pollution sources for which regulations must be promulgated. . 33 U.S.C. § 1342. . This deadline is not expressly mandated by the Act, but may be inferred from the fact that 33 U.S.C. § 1342(k) states that continuation of effluent discharge without a permit after December 31, 1974, will violate the Act unless a permit application is pending and disposition has been delayed for reasons other than the discharger’s own negligence. See Natural Resources Defense Council, Inc. v. Train, 166 U.S. App.D.C. 312, 510 F.2d 692, 707 (1975). . NPDES permit No. D 300*AD. . Regulations defining BPT effluent limitations for primary operations in carbon steel manufacturing were promulgated in 39 Fed.Reg. 24114 (June 28, 1974). However, these regulations were subsequently remanded in their entirety to the Administrator for revision in accordance with the decision in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3rd Cir. 1975). As of the date of oral argument in the instant case, no revised regulations had been promulgated. . “Interim final” guidelines covering alloy and stainless steel operations were published in 41 Fed.Reg. 12990 (March 29, 1976). . Had Republic’s permit been issued before the statutory deadline mandated by 33 U.S.C. § 1342(k), the company would have had 30 months to achieve BPT effluent levels. . 33 U.S.C. § 1369(b)(1)(F). . The Director of Ohio EPA, a respondent in the case whose position is aligned with that of Republic, argues that he issued Republic’s NPDES permit under the authority of 33 U.S.C. § 1311(b)(1)(C) which allows states to impose more stringent limitations than those applicable under the Act. If we follow this strained rationale, we would have to approve any state permit which authorized dischargers to maintain current effluent levels because any standard is more stringent than a nonexistent federal ceiling. This we refuse to do because it would be inimical to achieving meaningful pollution abatement on a national scale. . For a comprehensive review of this legislative history, see Bethlehem Steel Corporation v. Train, 544 F.2d 657, 661-662 (3rd Cir. 1976). . See A Legislative History of the Water Pollution Control Act Amendments of 1972,93rd Cong. 965 (Jan. 1973). (proposed section 301 (b)(3).) . EPA also draws our attention to State Water Control Board v. Train, 424 F.Supp. 146, 8 E.R.C. 1609 (E.D.Va., 1976), which upheld the inflexibility of a different section 301 deadline where noncompliance was due to the failure of Congress to appropriate sufficient money for public works (in this case, the construction of municipal sewage treatment plants). This case is readily distinguished from the present situation where noncompliance is linked to dereliction by EPA of duties imposed by the Act itself as a condition precedent to compliance. . See 544 F.2d at 660 n. 20. Republic appeared as amicus curiae in that case on behalf of Bethlehem Steel. United States Steel Corporation v. Train, 556 F.2d 822 (7th Cir. 1977), a case in which EPA issued the NPDES permit in October, 1974, while federal BPT standards existed for iron and carbon steel manufacturing, is distinguishable from our decision here on the same ground. . The difficulty is dramatized by a hypothetical case in which EPA issues an NPDES permit in 1977 requiring compliance with the July 1, 1977 completion date. Under such circumstances compliance may well be foreclosed by constitutional objections. See United States Steel Corporation v. Train, 556 F.2d 822 at 854 (7th Cir. 1977). . We expressly exclude from our holding situations in which state agencies may have issued NPDES permits in the absence of federal guidelines prior to December 31, 1974. . This date approximately reflects the date upon which Republic’s permit was first issued by Ohio EPA (prior to extensive renegotiations and modification of terms) plus the maximum period reserved for the filing of objections by EPA. . The obviousness of the permit’s putative section 301 violation may have prompted EPA to bypass an exhaustive review of its other substantive provisions.

California & Hawaiian Sugar Co. v. Environmental Protection Agency

FEINBERG, Circuit Judge: In March 1974, the Environmental Protection Agency (EPA) promulgated final regulations requiring curtailment of water pollution by crystalline cane sugar refineries in the United States. Although four refining companies — Amstar Corporation, California & Hawaiian Sugar Company (C&H), Sucrest Corporation, and National Sugar Refining Company — filed petitions for review of the new “guidelines for effluent limitations,” only C&H’s petition is still before us. C&H challenges the EPA’s action as arbitrary and capricious in various respects, and urges us to vacate the regulations and remand for further consideration by the agency. For the reasons set forth below, we conclude that the agency acted reasonably. We therefore uphold the regulations. I Crystalline Cane Sugar Refining Refining is the final step in the transformation of sugar cane into pure, white crystalline sucrose. Before refining can begin, the cane must first be crushed in a cane sugar factory. The resulting liquid is then crystallized, producing raw sugar. This “intermediate product consisting of crystals of high purity covered with a film of low quality syrup” is then shipped to a cane sugar refinery. The raw sugar unlike its refined descendant, sucrose, is not considered to be a foodstuff, and can therefore be transported without expensive sanitary safeguards. For this reason, refineries tend to be located in heavily populated areas, close to the retail markets. The refining process consists of four basic steps: (1) washing the raw sugar crystals; (2) adding water to the crystals to form a solution; (3) clarifying and decolorizing the solution; and (4) recrystallizing and finishing the sucrose. Two types of waste water result — process water and condenser water. Process water includes all waste waters from the refining process except condenser water. The primary component of process water is water used in decolorization, but it also includes such miscellaneous streams as floor and filter washings. The principal pollutants in process water are suspended solids (TSS), Biochemical Oxygen Demand (BOD), and pH, a factor of either acidity or alkalinity of the discharge. Condenser water is used to condense the water vapors that boil out of the sugar solution during the recrystallization step. The vapor that mixes with the condenser water contains sugar (in an amount the refiner desires to minimize for business reasons), which contributes substantially to BOD. Condenser water is by volume the greatest portion of the waste from cane sugar refining, but process water has a higher concentration of pollutants. Statutory Regulation Disposal of the waste water is governed by the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (Supp. IV 1974). Since its amendment in 1972, Pub.L. No. 92-500, the Act has focused attention on the discharges from each “point source” of pollutants rather than on the pollutant levels in the public waterways themselves. All discharges are prohibited, under § 301 of the Act, 33 U.S.C. § 1311, unless authorized by a permit issued pursuant to another section of the Act. The permit section relevant here, § 402, 33 U.S.C. § 1342, directs the EPA to transfer authority for issuance of permits to the states as soon as they develop programs that meet the Act’s requirements. Section 301(b)(1)(A) requires that by July 1, 1977, each point source must comply with effluent limitations fixed by the EPA on the basis of the “best practicable control technology currently available” (BPT). By 1983, the sources must meet a different, presumably stiffer, standard based on the “best available technology economically achievable” (BAT). In setting the standards, the EPA is directed to consider six factors, all but one of which are phrased in identical terms for both BPT and BAT: age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, and non-water quality environmental impact (including energy demands). The remaining factor involves costs, and the phrasing for the two standards differs. For BPT, the 1977 standard, the Act refers the EPA to “total cost of application of technology in relation to the effluent reduction benefits to be achieved by such application . ..” Section 304(b)(1)(B) of the Act, 33 U.S.C. § 1314(b)(1)(B). For BAT, the 1983 standard, the Act mandates consideration of “the cost of achieving such effluent reduction.” Section 304(b)(2)(B). Administrative Action Charged with establishing effluent limitations for all industrial subcategories, the EPA issued an “Advance Notice of Public Review Procedures.” 38 Fed.Reg. 21202 (1973). In accordance with that methodology, the agency had contracted with a private consultant to study waste water flows, pollutant constituents, and treatment technologies for cane sugar refining. The firm submitted a “Draft Development Document for Effluent Limitations Guidelines and New Source Performance Standards” for the cane sugar processing industry, which the EPA published for public comment in July 1973. The EPA twice supplemented the draft, and received a number of comments, including one from the United States Cane Sugar Refining Association (USCSRA). In the following December, the agency published its proposed guidelines. 38 Fed.Reg. 33846 (1973). The proposal limited BOD effluents to 30 milligrams per liter (mg/1) and limited TSS concentration to 40 mg/1. The agency proposed requiring reduction of these concentrations by 1983 to 18 mg/1 and 15 mg/1, respectively. A second Development Document accompanied the proposed guidelines, and recommended that the 1977 standard could be met by “activated sludge” treatment plants. In fixing the 1983 standard, the agency contemplated, among other things, construction of a new system employing cooling towers and sand filtration. The agency again received various public comments, including another from the USCSRA and one from C&H itself. After considering these comments, the agency on March 20, 1974 promulgated final regulations, 39 Fed.Reg. 10522 (1974), and issued a final Development Document. The agency relaxed the 1977 standards for both BOD and TSS to 60 mg/1, and similarly changed the standard that would take effect in 1983 for BOD to 40 mg/1 from the 18 mg/1 level originally proposed. C&H does not claim any procedural defect in this administrative proceeding. In C&H’s view, however, various agency determinations were arbitrary and capricious in light of all the evidence in the record. We will proceed to consideration of these challenges, but first we note that C&H questions the jurisdiction of this court. It argues that the regulations at issue here are authorized by § 304 of the Act, and are not regulations issued under § 301. Section 304 guidelines are not expressly made directly reviewable in the Court of Appeals by § 509(b), as are § 301 regulations. We rejected this argument in Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 624-29 (2d Cir. 1976), and the Supreme Court has recently confirmed this position. E. I. duPont de Nemours & Co. v. Train, - U.S. -, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). II C&H challenges the regulations in four respects: It argues (1) the agency created an impermissibly inflexible regulatory scheme by imposing specific number limitations, rather than defining a range of limitations, and by failing to specify factors to be considered for individual permit applications; (2) the EPA acted arbitrarily and capriciously in concluding that certain treatment technology could be borrowed from other industries to enable the cane sugar refiners to comply with both the 1977 and the 1983 standards; (3) the agency failed adequately to consider the adverse environmental effects of the recommended effluent treatment; and (4) the high costs of the required measures are not justified by the environmental benefits achieved. Flexibility of the Regulations C&H contends that the agency should not have fixed precise numerical limitations for the discharge of pollutants from every point source. According to C&H, the Act’s authors intended the agency to define a range of permissible discharge levels, so that the limit for each individual plant could be set after consideration of the various factors enumerated in § 304. Application of this flexible approach would eventually be entrusted to the states, thus facilitating further accommodation of the different situations of the refineries. C&H tells us that the uncertainty associated with transplanting technology from other industries makes this flexibility especially important. This argument cannot stand in the face of our decision in Hooker Chemicals & Plastic Corp. v. Train, supra. In that case, chemical companies challenged effluent limitation guidelines for the phosphate-manufacturing industry on various bases, including failure to establish ranges and to specify factors to be considered for point sources in each category and subcategory. We concluded: [W]henever Congress spoke of “ranges” in the debates over the Act, it meant only the spectrum comprised of varying discharge levels on a subcategorical, rather than individual, basis. [E. I. dupont de Nemours & Co. v. Train, 4 Cir., 541 F.2d 1018] de Nemours II, supra at 1029. Although variances are conceivable at the permit-granting stage (see our accompanying opinion Natural Resources Defense Council v. Environmental Protection Agency, 2 Cir., 537 F.2d 642), Congress intended that the regulations establish a single discharge level for a given subcategory. This is implicit in the Congressional choice of the superlative form in the statutory language requiring achievement of the degree of effluent reduction attainable by application of “best" technology. 537 F.2d at 630. The Supreme Court, in E. I. duPont de Nemours & Co. v. Train, supra, recently considered this question, and in response to an argument based on the same language that C&H cites in the legislative history of the Act, said: If construed to be consistent with the legislative history we have already discussed, and with what we have found to be the clear statutory language, this language can be fairly read to allow the use of subcategories based on factors such as size, age, and unit processes, with effluent limitations for each subcategory normally based on the performance of the best plants in that subcategory. - U.S. at -, n.21, 97 S.Ct. at 976. Thus, the EPA’s use of specific number limitations for the whole subcategory is permissible if accomplished on the basis of the appropriate factors. And the regulations as published recite the fact that [i]n establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can affect the industry subcategorization and effluent levels established. 39 Fed.Reg. 10525 (1974). The Development Document bears out this assertion. Furthermore, the agency expressly adverted to the possibility of adjusting the limitations for individual plants with “fundamentally different” attributes. Id. We therefore conclude that the agency properly fixed precise limitations on the discharge of pollutants, took sufficient account of the factors prescribed in the Act and allowed adequate tailoring of the limitations to peculiarities of specific point sources. Transferability of Technology The EPA established BOD and TSS limitations for both 1977 (BPT) and 1983 (BAT) on the basis of its determination that treatment techniques employed by other industries could work effectively on sugar refining waste. Neither the Act nor the agency requires the use of any particular treatment method at any point source; the regulations speak only of the quantity and quality of pollutants discharged. But the stringent limitations require substantial reduction of the discharges produced by the present refining process. To accomplish this, the EPA recommended that for the 1977 standard the refiners treat the process water stream by exposing it to active biota while it undergoes aeration. The EPA felt that this “activated sludge” process was “currently available” even though no cane sugar refiner employs it. The agency explained: However, the technology itself is widely available and practiced in other industries with similar raw waste characteristics— for example, the grain milling and the citrus and potato industries. There are no characteristics of the refinery waste waters that would render them unbeatable by the biological treatment system described. 39 Fed.Reg. 10522 (1974). The Development Document stated that the experiences of the beet sugar and fruit and vegetable industries contributed additional support for the EPA’s determination. Congress clearly intended the concept of BPT to encompass transferred technology. See Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972, at 169 — 70 (1973). Restricting the EPA to treatment technology already in use in a particular industry would only insulate industrial categories in which present practices might be uniformly inadequate. C&H argues, however, that the efficacy of activated sludge treatment for cane sugar refining waste is so uncertain that it cannot be considered for the 1977 standard. C&H points out that the Development Document refers to the agency’s “feelings” and assumptions based on other industries. C&H also argues that even though the EPA analogized to beet sugar waste processing, most beet sugar wastes are not common to cane sugar refineries and the EPA’s own study conceded difficulty in assessing the efficacy of the treatment of beet sugar wastes. Similarly, C&H challenges the EPA’s reliance on several other industries. Finally, C&H challenges the EPA’s reliance on the experience of municipal treatment systems in processing waste from cane sugar refineries. Refinery waste is but a small percentage of the total volume they process, so that special problems that may arise in connection with sugar wastes are not present. On the same basis, C&H also attacks the EPA’s recommendation that the 1983 (BAT) standard be met by construction of a sand filtration system to treat further the effluent from the biological treatment plant. Sand filtration has not been tested in a cane sugar refining context, but the agency asserted that sand filtration had worked well in the oil refining, grain milling, and soap and detergent industries. To be economical, the system depends on continuous operation of the filters at reasonable flow rates. But if the waste stream contains too high a concentration of suspended matter, the filters quickly become blocked. C&H says this problem may be particularly acute with cane sugar refining wastes, and points out that even the agency’s Development Document conceded that the dimensions of these filtration problems were unknown because of “uncertainty at present of the ratio of soluble to insoluble BOD in the effluent from the biological treatment system.” Nor does the EPA’s reference to the grain milling industry buttress the case for sand filtration, according to C&H, because the EPA has admitted that sand filtration had not been proven in that industry. In the light of this alleged insufficient support for the EPA’s conclusion that the transferred technology will enable cane sugar refiners to comply with the BPT and BAT limitations, C&H urges us to vacate the regulations as we did with other regulations in Hooker Chemicals & Plastics Corp. v. Train, supra, and as other circuits have done. See Tanners’ Council v. Train, 540 F.2d 1188 (4th Cir. 1976); FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976); American Iron & Steel Institute v. Train, 526 F.2d 1027 (3d Cir. 1975); American Meat Institute v. EPA, 526 F.2d 442, 463 (7th Cir. 1975). The Fourth Circuit in FMC found only conclusory statements from the EPA in the record, and noted that the Court of Appeals “cannot decide such questions on blind faith.” 539 F.2d at 985. The same court in Tanners’ Council made clear that while transfer technology is acceptable in principle, more analysis of the transfer is required of the agency than mere arbitrary adjustment of discharge limitations. In that case, the agency relied on experience of the meat-packing industry to establish limitations for leather tanning. When the EPA learned that tanning discharges differed from meat-packing discharges in an important respect, it simply raised the pollutant limit for tanners. The court rejected this quick solution as “guesswork.” Our decision in Hooker similarly required the agency to act only with a firm foundation set out in the record for our review. We said: But even if technology which is not presently in use can be treated as available and achievable, there must be some indication in the administrative record of the reasons for concluding that such technology is feasible and may reasonably be expected to yield the effluent reduction mandated when applied to the particular industry. American Meat Institute, supra, at 463; de Nemours II, supra, at 1032. Agencies must present sufficient support for their conclusions in order that the Court can properly review their decisions. 537 F.2d at 636. With this background in mind, we have looked closely at the EPA’s basis for concluding that activated sludge treatment and sand filtration are transferable to cane sugar refining. We find adequate support for the agency’s determination. The record indicates that the EPA collected data on the use of biological treatment in various industries with high carbonaceous wastes similar to cane sugar refining wastes, in municipal treatment systems that receive cane sugar process water, in combined cane sugar factory-refineries, and in bench and pilot scale tests. While it may be that none of these completely duplicated the actual conditions in a cane sugar refinery, they were all relevant sources for the EPA to consult for information. The factory-refineries and the municipal facilities indicated that cane sugar wastes could respond well to biological treatment. Although the factory-refineries did not use activated sludge, their treatment methods relied on the same natural biological processes. And although the municipal facilities had not had to deal with high concentrations, it appeared that the systems had dealt effectively with “other types of high strength organic wastes.” To appraise the efficacy of activated sludge treatment in the industrial context, the EPA looked to the various industries whose discharges resembled cane sugar refining discharges in important respects. It is true, as C&H argues, that some beet sugar wastes do not appear in cane sugar waste streams. These are usually either recovered as byproducts, disposed of on land, or screened or sedimented out of the waste streams; in any case, they do not undergo activated sludge treatment. Nevertheless, the beet sugar streams that are treated with activated sludge have dissolved sugars as their main organic constituents, and are thus quite useful for comparison to cane sugar refining wastes. As to C&H’s point, see note 11 supra, that the EPA has not recommended activated sludge treatment for the beet sugar processors, the EPA explains that this is because other methods that work even better are feasible for beet sugar processors. Since most of that group are located in rural areas, disposal on land is more economical and better suited for their highly seasonal business. The EPA also looked to apple and citrus fruit processing plants, because their wastes included natural sugars, and to potato processing plants because high quantities of carbohydrates appear in their waste streams. The agency also drew support from the dairy industry, whose wastes C&H claims are dissimilar to cane sugar refining wastes. But the record indicates that dairy processing wastes are sufficiently similar to justify the comparison, so experience with them is at least relevant. These numerous sources of data provided sufficient support for the agency’s decision on the transferability of activated sludge technology. And it appears that the EPA acted reasonably in setting the particular numerical limits contained in the guidelines. For example, in answer to C&H’s charge that greater efficiency of treatment is demanded of cane sugar refiners than activated sludge treatment has produced for the apple and citrus processors (84-94 percent), see note 12, supra, the EPA says that its regulations actually require only 76.8 percent efficiency if both process water and condenser water are considered, or 89 percent for process water alone. The discrepancy between these figures and C&H’s 95 percent figure apparently results from the unusually high BOD concentration in C&H process water. The agency based its computation on average industry figures, which is entirely appropriate. In fact, in Hooker Chemicals & Plastics Corp. v. Train, supra, we approved averaging of figures taken only from “exemplary” plants. 537 F.2d at 632. See American Meat Institute v. EPA, supra, 526 F.2d at 453; American Iron & Steel Institute v. Train, supra, 526 F.2d at 1057. C&H also argues that the EPA’s relaxation of the standards for BOD and TSS in the final guidelines demonstrated that the figures selected were arbitrary. The EPA acted after receiving comments that the standards were too rigid, and explained the increase in permissible levels of pollutants in the final regulations, as compared with the earlier proposed levels, as taking “into account operational problems,” 39 Fed.Reg. 10524 (1974), that may attend adapting the technology to a new industry. We believe that this approach was not arbitrary. The agency’s action in Tanners’ Council was quite different; there, the agency made no reference to information from the tanning industry “or a comparable industry.” 540 F.2d at 1194 n.14. Turning to the sand filtration system recommended for use by 1983, we also find that the EPA acted reasonably on the basis of the record. Implicit in the distinction between BPT and BAT is Congress’ faith that technological progress can turn present hopes into effective waste treatment plants by 1983. We must therefore allow the EPA considerable latitude in extrapolating from today’s technology. See Hooker Chemicals & Plastics Corp. v. Train, supra, 537 F.2d at 634. C&H plans to use sand filtration on the effluent from its biological treatment plant currently under construction. Moreover, other comparable industries now use sand filtration. These indications of the system’s usefulness and practicability adequately support the EPA’s determination that by 1983 it can be used for cane sugar refining wastes. The EPA calculated the BAT standard on the assumption that sand filtration would reduce TSS levels, but the agency did not credit sand filtration with any reduction in BOD levels. Thus, the uncertainty C&H raises about the ratio of soluble to insoluble BOD, see note 13, supra, and accompanying text, is no reason to suspect the validity of the BAT standards. In sum, we conclude that the EPA did not act arbitrarily in determining that activated sludge, treatment and sand filtration technology could be transferred. We do not have here the sorts of infirmities in the agency’s analysis that have led to remands in other cases. E. g., FMC Corp. v. Train, supra, 539 F.2d at 980-82 (unsupported assumptions of waste water flow); Hooker Chemicals & Plastics Corp. v. Train, supra, 537 F.2d at 633-35 (complete failure to take account of relevant factors) and at 636 (complete lack of explanation in record); American Meat Institute v. EPA, supra, 526 F.2d at 459-60 (groundless disregard of relevant data). Other Environmental Effects C&H complains that the EPA failed to account for a number of non-water quality environmental problems that will flow from the new regulations. The activated sludge treatment plants will require additional land, possibly a problem for refineries in urban areas. Moreover, disposal of the resulting bacterial sludge as landfill may not endear the refiners to local public health authorities. The EPA, however, did consider that the many activated sludge treatment plants already in industrial and municipal use are able to dispose of their sludge without undue difficulty, and an agency pilot scale test indicated that drying the sludge was possible. C&H also complains of the agency’s “cavalier” consideration of energy consumption required by the new regulations. We see no merit to this argument on the record of this proceeding. Finally, C&H informs us that the cooling towers may cause serious fogging and noise and that the fog may imperil traffic on roads near the refineries. The EPA correctly points out that the comments it received on this point were based more on speculation than facts. Nonetheless, the agency acknowledged that these problems might develop. Development Document at 142. The record contains no evidence that any of the five refineries presently using cooling towers has encountered them, however. Moreover, the agency took into consideration the likelihood that design modification and careful placement could abate the noise and fogging problems. Finally, C&H argues in its reply brief that some other approach may efficiently reduce pollutant levels without the need for cooling towers; if so, C&H is free to use that approach. Under these circumstances, the EPA’s determination was not arbitrary. Costs As indicated above, § 304 directs the EPA to consider the cost of treatment technologies recommended for use as BPT and BAT. C&H complains that in doing so the EPA used 1971 cost data, understated the cost of capital and land, and overstated industry income, investment and cash flow, with the result that the EPA’s cost estimate was one-third of the real figure for BPT, and one-half the real price of BAT. C&H also emphasizes that the EPA should not just compute the price of the new treatment systems, but also must ascertain the specific resulting environmental benefits. Instead, C&H says, the agency merely parroted the boilerplate statement that “[i]t is not feasible to quantify in economic terms . the costs resulting from the discharge of these pollutants to our Nation’s Waterways.” 39 Fed.Reg. 10524 (1974). According to C&H, the expensive cooling towers will treat water containing only “minute” concentrations of BOD, which the EPA has not shown to threaten aquatic life or suitability for human use. The EPA, however, need not document specifically the benefits to society from the curtailment of pollutants from a particular point source. Congress has established as a national goal the complete elimination of pollutant discharges by 1985. 33 U.S.C. § 1251(a)(1) (Supp. IV 1974). The EPA must lead industry toward that goal through the 1977 and 1983 standards, and the agency’s discretion is necessarily broad. See FMC Corp. v. Train, supra, 539 F.2d at 978-79. In its consideration in this proceeding, the EPA apparently did use the most recent cost information available, and focused its economic analysis narrowly on cane sugar refining, instead of the entire food processing industry, which C&H apparently used in reaching its higher cost estimates. As to C&H’s numerous other charges of specific inaccuracies in the EPA cost figures, the agency has presented data to support its estimates. We believe that the EPA estimates fall within the realm of reason on the basis of information in the record. See id. at 979. In short, this is not a case like Hooker, upon which C&H relies, where there was an “absence of any practical consideration of costs.” 537 F.2d at 635. We have considered all of C&H’s arguments, and we uphold the effluent limitations guidelines as promulgated by the EPA. The petition for review is denied. . The Federal Water Pollution Control Act Amendments of 1972 refer to the Administrator of the Environmental Protection Agency as the official responsible for issuing the guidelines. 33 U.S.C. §§ 1251(d), 1314(b) (Supp. IV 1974). He acts through the agency, which is the respondent here and has filed the brief in this court. We will therefore refer hereafter only to the EPA or the agency. . C&H filed its petition originally in the Ninth Circuit, and National Sugar Refining filed in the Third Circuit. Amstar and Sucrest both filed in this court. The first two petitions were transferred and the four petitions were subsequently consolidated. . National Sugar Refining, Amstar, and Sucrest have stipulated to dismissals without prejudice of their petitions, the latter two only after oral argument in this court. The EPA agreed to allow Amstar and Sucrest to submit additional information to the agency for consideration in connection with its ongoing review of the effluent limitations guidelines. . Cane sugar is also refined into liquid sugar. Two refineries in the United States produce both liquid and crystalline sugar, and five others produce liquid sugar only. Separate effluent limitations guidelines have been promulgated for the liquid cane sugar refining subcategory, 40 C.F.R. § 409.30-.36, and have not been challenged. . EPA, Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Cane Sugar Refining Segment of the Sugar Processing Point Source Category, at 170 (1974) (hereinafter referred to as Development Document). . C&H operates two cane sugar refineries, one near Honolulu, Hawaii, and the other in the San Francisco Bay area. . Biochemical Oxygen Demand is not strictly speaking a pollutant at all. It is a measure of the oxygen consuming capabilities of organic matter. The undesirability of discharges with high oxygen demands are explained in the Development Document at 67-68, as follows: The BOD does not in itself cause direct harm to a water system, but the matter which it measures may exert an indirect effect by depressing the oxygen content of the water. Sewage and other organic effluents during their processes of decomposition exert a BOD, which can have a catastrophic effect on the ecosystem by depleting the oxygen supply. Conditions are reached frequently where all of the oxygen is used and the continuing decay process causes the production of noxious gases such as hydrogen sulfide and methane. Water with a high BOD indicates the presence of decomposing organic matter and subsequent high bacterial counts that degrade its quality and potential uses. Dissolved oxygen (DO) is a water quality constituent that, in appropriate concentrations, is essential not only to keep organisms living but also to sustain species reproduction, vigor, and the development of populations. Organisms undergo stress at reduced DO concentrations that make them less competitive and able to sustain their species within the aquatic environment. . If a high BOD is present, the quality of the water is usually visually degraded by the presence of decomposing materials and algae blooms due to the uptake of degraded materials that form the foodstuffs of the algal populations. . The guidelines set pH limits for discharges, but those limits have not been questioned in the petition before us. . The effluent limitations are actually expressed in terms of pounds of pollutants discharged per ton of sugar melt processed. Thus, what is a permissible level of pollutants in the final effluent from a refinery will vary from plant to plant depending on water usage. The figures cited in the text are the concentrations arrived at for plants with average water consumption. . See note 5, supra. . C&H points out that the EPA has not recommended activated sludge treatment for beet sugar wastes. . Specifically, C&H argues that the biological treatment of com wet milling wastes has failed to keep pollutants consistently below the required limits. With respect to fruit and vegetable processing, C&H contends that the BOD removal level required is only 84-94 percent, whereas the cane sugar refiners are required to remove 95 percent or more. . Development Document at 152. . See CPC International, Inc. v. Train, 515 F.2d 1032, 1047 (8th Cir. 1975). . The EPA has also directed our attention to post-promulgation developments that corroborate the agency’s reasonableness. Plants now operating in South Africa and Japan apparently are effectively employing biological treatment of cane sugar wastes. Although we have not relied on these developments, we note that the Tenth Circuit has permitted such confirmation. Cf. American Petroleum Institute v. Train, 540 F.2d 1023, 1034 (10th Cir. 1976). . After remand in CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit accepted an EPA recommendation for BOD removal based on evidence that sand filtration was working well in an existing corn wet milling plant. CPC International, Inc. v. Train, 540 F.2d 1329, 1334-35 (8th Cir. 1976). See note 14, supra, and accompanying text.

American Iron & Steel Institute v. Environmental Protection Agency

OPINION OF THE COURT GARTH, Circuit Judge. This petition seeks our review of certain regulations issued by the Environmental Protection Agency (EPA). The challenged regulations under certain circumstances allow adjustments to be made in permitted discharges if significant amounts of pollutants are found in a plant’s intake water. Concluding that the statute which governs our jurisdiction does not provide for review of these regulations at this time, we dismiss the petition and accordingly do not reach the merits of petitioners’ arguments. I The American Iron and Steel Institute (AISI), a trade association of iron and steel manufacturers and producers, and National Steel Corporation, a member of AISI, have petitioned this Court to review certain regulations, 40 C.F.R. §§ 125.24(c) and 125.28 (the “Net-Gross Regulations”) promulgated by EPA pursuant to the Federal Water Pollution Control Act Amendments of 1972 (the Act), 33 U.S.C. §§ 1251-1376 (Supp.1976). These regulations provide, among other things, that effluent limitations must be expressed in gross terms, but may be adjusted for some individual point sources which are unable to meet the required standards because of the presence of pollutants in intake water. Petitioners argue that these regulations are unconstitutional and that their issuance was not authorized by the Act. They also contend that various provisions of the regulations are arbitrary, capricious, and not based on adequate evidence in the record. II The same “net-gross” controversy presented here was previously addressed (together with other issues) in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975) [AISI I]. There the Court reviewed the Effluent Guidelines and Standards for the Iron and Steel Manufacturing Point Source Category, 40 C.F.R. § 420 (1975). For reasons unrelated to the issues raised by the present petition, the regulations considered in AISI I were remanded to the agency for reconsideration and for promulgation of effluent limitation guidelines. The petitioners in AISI I argued, as do the petitioners here, that the issuance of effluent limitations expressed in gross terms violated the fifth amendment’s due process clause and that their promulgation was beyond the authority granted to EPA by the Act. They maintained that all effluent limitations must be expressed in net terms, i. e., that all pollutants present in the intake water must be subtracted from the gross amounts of pollutants discharged after processing and that only the net (the difference between these figures) could be regulated. In AISI I, that argument was answered by the Court’s statement that while it was neither practical nor necessary to convert all effluent limitations to net terms, “any individual point source should be entitled to an adjustment in an effluent limitation applicable to it if it can show that its inability to meet the limitation is attributable to significant amounts of pollutants in the intake water.” 526 F.2d at 1056. Because these regulations were not before us in AISI I (see n. 6 supra) it would appear appropriate for us to meet the merits of petitioners’ arguments at this time were it not for the jurisdictional considerations raised by EPA. If we are without jurisdiction to review the challenged regulations, then we can only “announce that fact and do no more.” Local 1498, American Federation of Government Employees v. American Federation of Government Employees, 522 F.2d 486, 492 (3d Cir., 1975). Hence, such a determination would preclude our reaching and deciding the substance of petitioners’ claims. EPA has maintained throughout these proceedings that we have no jurisdiction to review the Net-Gross Regulations in the absence of action by the Administrator issuing or denying a permit. 33 U.S.C. § 1369(b)(1)(F) (Supp.1976). Since no permit has either been issued or denied, EPA initially sought to dismiss the petition by motion. When that motion was referred to this panel, EPA then vigorously argued before us that the petition should be dismissed because the statute provides no grant of jurisdiction whereby we may consider the petitioners’ contentions. We therefore turn to this threshold jurisdictional argument, Ill Petitioners claim that we have jurisdiction to review the Net-Gross Regulations under 33 U.S.C. § 1369(b)(1)(E) (Supp.1976). The relevant portion of subsection (b)(1)(E), which they claim provides jurisdiction in this Court, reads: “Review of the Administrator’s action ... in approving or promulgating any effluent limitation . . . may be had ... in the . . . Court of Appeals of the United States . . ,.” Focusing on the review afforded to an effluent limitation, the petitioners argue that the Net-Gross Regulations constitute effluent limitations or at least effluent limitation guidelines. EPA, on the other hand, has consistently argued that the Net-Gross Regulations do not constitute effluent limitations or guidelines but rather relate solely to the terms and conditions specified in permits issued to individual point sources. EPA substantiates this argument by pointing to the fact that when it promulgated the Net-Gross Regulations it cited as its authority only sections of the Act concerned with the permit system, and not sections relating to effluent limitations. A In support of their jurisdictional contention that review in this Court is presently available, petitioners first argue that EPA’s characterization of the Net-Gross Regulations as “something other than effluent limitations” should not be given conclusive effect. This characterization arises from the authority cited by EPA in support of its issuance of the Net-Gross Regulations. EPA cited as its authority three particular sections of the Act which pertain only to the permit system rather than to the promulgation of effluent limitations (See n. 10 supra). We agree with petitioners that an agency’s interpretation of the law which governs our jurisdiction is not entitled to deference. Western Union Telegraph Co. v. FCC, 541 F.2d 346, at 356-357 (3d Cir., 1976) (Garth, J., dissenting). But we believe that when an agency employs its special knowledge and expertise in construing significant terms of the act which it administers, particularly terms of art such as “effluent limitation”, the agency’s interpretation is then entitled to considerable deference. Here, EPA is not construing our powers of review as such, but has rather provided us with its interpretation of what is or what is not an effluent limitation. In such a case, while EPA’s interpretation is not conclusive for jurisdictional purposes, Columbia Broadcasting System v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), we would be remiss not to give deference to its interpretation that the term “effluent limitation” does not include the Net-Gross Regulations. See also Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 518 (2d Cir., 1976). B Petitioners’ next argument refers us to the definition of effluent limitation, which reads: The term “effluent limitation” means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance. 33 U.S.C. § 1362(11). Their argument continues that Inasmuch as a net or gross regulation defines the quantity and rate of discharge, the Net-Gross Regulations meet the Act’s definition of an “effluent limitation” and as such, are an exercise of the Administrator’s power to establish effluent limitations under §§ 301 and 306 of the Act. Petitioners’ Brief at 13. In essence, the petitioners contend that the Net-Gross Regulations are such an integral part of the effluent limitations for the various point sources that the Net-Gross Regulations themselves must be considered as effluent limitations, and as such are reviewable. They articulate two reasons for reaching this result. First, the petitioners claim that they can neither know the content of a particular effluent limitation nor can they comply with it unless and until they are advised as to the credit given for pollutants found in intake waters. When that credit is subtracted from the gross effluent limitation, in effect a “new” effluent limitation results. Hence, claim petitioners, this operation of the Net-Gross Regulations necessarily requires that the Regulations be regarded as effluent limitations. Second, they point out that without the adjustments provided by the Net-Gross Regulations, effluent limitations expressed flatly in gross terms would be legally defective. AISI I, supra, at 1056; American Petroleum Institute v. Train, 540 F.2d 1023 at 1034-1035 (10th Cir., 1976); Appalachian Power Co. v. Train, 540 F.2d 1023, at 1034-1035 (4th Cir., 1976); Hooker Chemicals and Plastics Corp. v. Train, 537 F.2d 620, 633 (2d Cir., 1976). Accordingly, they argue that the Net-Gross Regulations are so much a part of any particular effluent limitation that they must be considered as effluent limitations themselves and therefore reviewable in this Court under 33 U.S.C. § 1369(b)(1)(E) as any other effluent limitation issued by the Administrator. We are not persuaded by petitioners’ efforts to portray the Net-Gross Regulations as effluent limitations. Rather, we agree with the EPA’s analysis that the Net-Gross Regulations do no more than prescribe the policy and procedures to be followed in connection with applications for permits. 40 C.F.R. § 125.2(a)(1). Referring to the Act’s definition of effluent limitation as meaning “any restriction established by a State or the Administrator on quantities, rates and concentrations” of pollutants, EPA correctly observes that the Net-Gross Regulations do not in themselves restrict quantities, rates, or concentrations. EPA also notes that the Net-Gross Regulations are strikingly unlike the effluent limitations promulgated for the various point source categories. The Net-Gross Regulations neither prescribe specific number limitations for any pollutant, nor do they list the factors which must be considered in determining the control measures which individual point sources must employ. As EPA concludes in its discussion of this issue, see part III C infra, “In short, these regulations [Net-Gross] do not even purport to do any of those things which Congress contemplated in [33 U.S.C. §§ 1311 and 1314] that effluent limitations would do.” Respondent’s Brief at 14. The petitioners’ contention that they cannot know the content of an effluent limitation proves too much. It was clearly evident even before the Net-Gross Regulations were promulgated that the effluent limitations were expressed in gross terms. After the promulgation of the Net-Gross Regulations, effluent limitations continued to be expressed in gross terms, and compliance with gross standards was required in all cases except those in which the applicant for a permit could demonstrate that it could not meet such limitations because of the level of pollutants in the intake water. Hence, at least since the promulgation of the effluent limitation regulations, there has been and continues to be no uncertainty as to the limitations to be achieved for compliance. And the fact that credit for intake pollutants may be granted during permit proceedings cannot alter the basic gross limitation itself. Addressing the second reason advanced by the petitioners for asserting that the challenged Regulations are in reality effluent limitations, we acknowledge that the Net-Gross Regulations were promulgated to resolve the problem presented by the issuance of these limitations in gross terms. However, we do not believe that the purpose for the issuance of the Net-Gross Regulations (i. e., to cure purported illegality) can support the petitioners’ argument for review under 33 U.S.C. § 1369(b)(1)(E). As noted, the petitioners argue that the gross limitations established by EPA are illegal. Therefore, they contend that the Net-Gross Regulations were issued solely to remedy the constitutional or statutory defects implicit in expressing limitations in gross terms. However, say the petitioners, the Net-Gross Regulations are such an integral part of, and so intertwined with, the basic gross limitations, that the Net-Gross Regulations themselves have now become “effluent limitations.” It is on this ground that they urge review. We note, however, that the petitioners seek review in this proceeding only of the Net-Gross Regulations — i. e., those Regulations which merely operate to modify the gross limitations. The fallacy that we sense in the petitioners’ argument is that without the original gross limitations before us, the modifications, if any, which may be effected by the operation of the Net-Gross Regulations are both incalculable and unintelligible. Hence, since the Net-Gross Regulations serve only to adjust gross effluent limitations under certain circumstances, we find it difficult, if not impossible, to understand how the Regulations can be intelligently reviewed in a proceeding in which the original gross effluent limitations for a particular point source category are neither being reviewed nor considered. In Hooker Chemical and Plastics Corp. v. Train, supra, Appalachian Power Co. v. Train, supra, and American Petroleum Institute v. Train, supra, the promulgation of effluent limitations for three point source categories (phosphate manufacturing, steam electric power generating, and petroleum refining) were reviewed under 33 U.S.C. § 1369(b)(1)(E). The petitioners in those cases raised objections which the Net-Gross Regulations were designed to answer. As a consequence, the Net-Gross Regulations were considered, but only in conjunction with specific effluent limitations. Similarly, if the Net-Gross Regulations are reviewed in a permit context under 33 U.S.C. § 1369(b)(1)(F), they will be considered in conjunction with the effluent limitations for a specific point source category and in a specific factual setting. By contrast, if, as we are urged by petitioners, we were to consider the Net-Gross Regulations at this stage, we would face two equally unattractive alternatives. On the one hand, we would be obliged to review the regulations in a vacuum, i. e., without specific effluent limitations in issue and without the factual context and record of a permit proceeding. On the other hand, we would be required to consider the effect of these regulations upon effluent limitations for all 27 point source categories (/. e., grain mills, 40 C.F.R. § 406; canned and preserved fruits and vegetables processing, 40 C.F.R. § 407; canned and preserved seafood processing, 40 C.F.R. § 408; etc.) and their impact upon all the possible factual situations which could develop. We decline petitioners’ invitation to review under such circumstances. Further, despite the ambiguity of many of the Act’s provisions, we do not believe, in view of the explicit and limited provisions of 33 U.S.C. § 1369(b)(1)(E) and (F), that Congress intended us to engage in deliberations of this sort in the absence of a full and comprehensive record. See Bethlehem Steel Corp. v. EPA, supra, at 518. C Petitioners’ final argument need not detain us for we find it even less persuasive than their contentions which we have already discussed. The petitioners claim that even if the Net-Gross Regulations are not regarded as effluent limitations, they nevertheless must be regarded as effluent limitation guidelines and as such are subject to review. The distinction between “effluent limitations” and “effluent limitation guidelines” may be summarized as follows: An “effluent limitation” represents a single number which limits the maximum amount of effluent discharge that will be permitted. AISI I, 526 F.2d at 1045. On the other hand, “effluent limitation guidelines” are intended to provide precise guidance to the permit-issuing authorities in establishing a permissible level of discharge that is more stringent than the ceiling established by the effluent limitations. The guidelines are expressed in ranges below the ceiling and involve the consideration of specific factors, including, among others, cost benefit analyses of the various technologies, the age of equipment and facilities, the effect of various technologies on other aspects of the environment, and the energy requirements of various technologies. 33 U.S.C. § 1314(b). Assuming without deciding that the petitioners are correct in their contention that 33 U.S.C. § 1369(b)(1)(E) grants us jurisdiction to review the promulgation of effluent limitation guidelines as distinct from effluent limitations, see E. I duPont de Nemours & Co. v. Train, 528 F.2d 1136, 1142 (4th Cir. 1975), we must still determine whether the Net-Gross Regulations constitute effluent limitation guidelines. In our discussion of effluent limitations, we adverted to the fact that the Net-Gross Regulations do not specify the factors to be considered and to be taken into account in determining control measures to be utilized by individual point sources; — a sine qua non for effluent limitation guidelines. See AISI I, 526 F,2d at 1045. No matter how liberally we read the Net-Gross Regulations, we are unable to find within them any of the characteristics essential to guidelines. It is clear to us that the Net-Gross Regulations have little if anything to do with the factors which the Act requires to be considered. Just as we have concluded that the Net-Gross Regulations do not purport to accomplish the congressional objectives in 33 U.S.C. § 1311 that effluent limitations are designed to accomplish, so we conclude that these Regulations do not purport to accomplish the congressional objectives contemplated in 33 U.S.C. § 1314. We therefore reject the petitioners’ attempt to equate the Net-Gross Regulations with effluent limitation guidelines. In rejecting this contention, we thereby hold that no review is available in this Court under 33 U.S.C. § 1369(b)(1)(E) based on that theory. D The amici curiae agree with the position asserted by EPA that we do not now have jurisdiction to review the Net-Gross Regulations under 33 U.S.C. § 1369(b)(1)(E). However, amici maintain that jurisdiction is available at this time in the district court under provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701 and 702. The issue of district court jurisdiction is not before us, and we therefore express no view as to that contention. IV Having determined that the only basis for jurisdiction in this Court stems from 33 U.S.C. § 1369(b)(1)(E) (review of an effluent limitation) and that the Net-Gross Regulations constitute neither effluent limitations nor effluent limitation guidelines, we conclude that we do not have jurisdiction to review the challenged regulations at this time. In dismissing the petition we obviously express no view as to any of the merits of the regulations or as to any issue other than issues involving our jurisdiction. Local 1498, American Federation of Government Employees v. American Federation of Government Employees, supra at 492; Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). Implicit in our discussion is the fact that these regulations, their validity, and their application to any permit applicant may be reviewed by this Court in subsequent proceedings brought under 33 U.S.C. § 1369(b)(1)(F) at an appropriate time and on an appropriate record. The petitions for review will be dismissed. . 40 C.F.R. § 125.24(c) provides: Except as provided in § 125.28 effluent limitations included in permits shall be expressed in gross terms. . 40 C.F.R. § 125.28 provides: (a) The Regional Administrator shall adjust the effluent limitations or standards in permits to reflect credit for pollutants in the applicant’s water supply if the source of the applicant’s water supply is the same body of water into which the discharge is made and if: (1) The applicable effluent limitations and standards contained in Subchapter N of this Chapter specifically provide that they shall be applied on a net basis; or (2) The applicant demonstrates to the Regional Administrator, prior to the issuance, denial, or modification of his permit, that specified pollutants which are present in the applicant’s intake water will not be removed by wastewater treatment systems designed to reduce process wastewater pollutants and other added pollutants to the levels required by applicable limitations or standards. (b) Effluent limitations or standards adjusted pursuant to this section shall be calculated on the basis of the amount of pollutants present in the water after any water supply treatment steps have been performed by or for the applicant. Effluent limitations or standards shall not be adjusted when the pollutants which would be discharged, if credit were allowed, would vary either chemically or biologically from the pollutants found in the applicant’s water supply. (c) Any permit which includes effluent limitations or standards adjusted pursuant to this section shall also contain conditions requiring the permittee to conduct additional monitoring i. e. flow and concentration of the pollutants therein in the manner and locations determined appropriate by the Regional Administrator for those specific pollutants for which the effluent limitations or standards have been adjusted. . For an overall discussion of the Act’s requirements pertaining to effluent limitations, see this Court’s opinion in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975). . In essence, the petitioners’ arguments focus on alleged violations of the fifth amendment. They argue that the regulations violate their rights involving equal protection and substantive due process. . Petitioners’ specific challenges concern the following aspects of the regulations: 1. the burden of proof which applicants for permits must satisfy; 2. the disallowance of credit for intake pollutants where the water is not discharged into the same body of water from which it was obtained; 3. the disallowance of credit where the pollutants discharged vary chemically or biologically from the pollutants contained in intake waters; and 4. the disallowance of credit for treatment of intake water where water supply treatment facilities are used prior to processing. . EPA has not yet complied with those directions. We observe also that the Net-Gross Regulations, which are the subject of the instant petition, were issued after argument in AISI I but before the date of that decision. Hence, these regulations in their present form were neither discussed nor ruled upon in this Court’s prior opinion. . Since our decision in AISI I, three other Circuits have addressed this problem. In Hooker Chemicals and Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976), effluent limitations for the phosphate manufacturing point source category were reviewed. The Second Circuit observed that whatever defect might have inhered in gross effluent limitations was apparently remedied by the Net-Gross Regulations, which are the subject of the petition here. Id. at 633. In Applachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. filed July 16, 1976), which involved the effluent limitations for the steam electric power generating point source category, the Fourth Circuit held that translation of all effluent limitations into net terms was not required, but that in applying the gross values a credit for all intake pollution must be given, at 1377-1378. In American Petroleum Institute v. EPA, 540 F.2d 1023 (10th Cir., filed August 11, 1976), involving the effluent limitations for the petroleum refining point source category, the Tenth Circuit held that the Net-Gross Regulations are a satisfactory answer to the argument that all effluent limitations must be expressed in net terms, at 1034-1035. . 33 U.S.C. § 1369 (§ 509 of the Act) is entitled Administrative Procedures and Judicial Review. Subsection (b)(1) states: (b)(1) Review of the Administrator’s action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person. Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day. . As appears in the full text of 33 U.S.C. § 1369(b)(1)(E), see n. 8 supra, subsection (E) also provides for review where the Administrator has approved or promulgated “other limitations” under §§ 1311, 1312, or 1316. Inasmuch as petitioners do not rely upon this portion of subsection (E), no purpose would be served by setting forth the text of those sections of the Act. . The statutes cited by EPA as authority for these regulations were 33 U.S.C. §§ 1342, 1345, and 1361. 33 U.S.C. § 1342 pertains to the issuance of permits for the discharge of pollutants and specifies the applicable procedures. 33 U.S.C. § 1345 concerns the disposal of sewage sludge; subsection (b) of § 1345 treats with the issuance of permits for the disposal of sewage sludge and refers back to § 1342 for the procedures to be followed. 33 U.S.C. § 1361 is a “catchall” which authorizes the Administrator to prescribe regulations necessary to carry out his functions under the Act. . 33 U.S.C. § 1362(11). . See, e. g., with regard to the iron and steel manufacturing point source category, EPA Development Document for Proposed Effluent Limitations Guidelines and New Source Performance Standards for the Steel Making Segment of the Iron and Steel Manufacturing Point Source Category (February 1974); Preamble to Effluent Guidelines and Standards for Iron and Steel Manufacturing Point Source Category, 39 Fed.Reg. 24115 (June 28, 1974). The Net-Gross Regulations were published in proposed form on October 18, 1974, 39 Fed.Reg. 37215 (1974). They were published in final form on July 16, 1975, 40 Fed.Reg. 29848. . As we have previously noted, the petitioners’ argument is that limitations expressed in gross terms are statutorily or constitutionally infirm. To the extent that this issue has been discussed by various Courts of Appeals, all courts have either recognized the need for credit adjustments or have acknowledged that the Net-Gross Regulations meet that need. Hooker Chemical and Plastics Corp. v. Train, supra; Appalachian Power Co. v. Train, supra; American Petroleum Institute v. Train, supra; and American Iron and Steel Institute v. EPA (AISI I), supra. . See American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1074 (3d Cir. 1975) (Adams, J., concurring). . See 33 U.S.C. § 1314. . See 33 U.S.C. § 1311. . The brief for amici curiae sets forth their interest as follows: Amici Curiae are Diamond Shamrock Corporation, BASF Wyandotte Corporation, Gardinier Inc., E. I. du Pont de Nemours & Company, PPG Industries, Inc., and FMC Corporation. They are, among other things, operators of chemical manufacturing plants located throughout the United States. Amici, like the petitioners, discharge effluents which are subject to regulation by EPA under the terms of the Act. Amici are also the plaintiffs in an action now pending in the United States District Court for the District of Columbia (Diamond Shamrock Corp., et al. v. Train, Civil Action No. 75-1917), in which they seek review of the same Net-Gross Adjustment Regulations. That action has issues which are similar to those posed by these consolidated cases. Brief for Amici Curiae at 3. . By dismissing the petitions for review we also dispose of the initial motion to dismiss the petition made by EPA and referred to this panel. We do so without separate order, as our disposition here effectively grants the relief sought in the motion.

Appalachian Power Co. v. Train

WIDENER, Circuit Judge: This action is brought under § 509(b)(1) of the Federal Water Pollution Control Act [Act] and seeks review of certain regulations promulgated by the Environmental Protection Agency (EPA) pursuant to its authority under §§ 301, 304, 306 and 316(a). These regulations establish limitations on the discharge of heat from steam electric generating plants into navigable waters. The petitioners in this action include seventy members of the United Water Act Group [UWAG], who include both publicly and privately owned companies and collectively own and operate over 50% of the nation’s electric generating capacity. The regulations here under review implementing §§ 301, 304, and 306 were first issued in preliminary form on March 4, 1974. The proposed regulations under § 316(a) of the Act were issued on March 28, 1974. Following a comment period, EPA issued its final regulations on October 8, 1974. Prior to that time, however, the first of the petitions in this case was filed with the Court. The Act establishes as the national goal the elimination of discharges of pollutants into navigable waters by 1985. Among the substances defined as a pollutant by Congress was heat. It was recognized, however, that a basic technological approach to water quality control could not be applied in the same manner to the discharge of heat as to other pollutants since the temporary localized effects of thermal discharges might, in certain instances, be beneficial. Thus, Congress included within the Act § 316(a) which modifies the requirements of both sections 301 and 306 as they pertain to thermal discharges from point sources. In the instant case, the petitioners challenge the regulations generally and specifically. For the sake of clarity, we will first consider the general challenges and then discuss those applying to specific regulations. STANDARD OF REVIEW Before addressing the issues raised by the Industry, it is important to note that the standard of review imposed upon the court is narrowly prescribed by Section 706(2)(A) of the Administrative Procedure Act. That section requires a finding that the administrative action in question is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” before it may be set aside. The scope of review thus permitted was discussed by this court in Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973). There, we stated; “Courts require that administrative agencies ‘articulate the criteria’ employed in reaching their result and are no longer content with bare administrative ipse dixits based on supposed administrative expertise. . . . While an agency may have discretion to decide, ‘[Discretion to decide does not include a right to act perfunctorily or arbitrarily’; and, in order for a Court to make a critical evaluation of the agency’s action and to determine whether it acted ‘perfunctorily or arbitrarily,’ the agency must . ‘explicate fully its course of inquiry, its analysis and its reasoning’.” 477 F.2d at 507. While the court may not substitute its judgment for that of the agency, the grounds upon which the agency acted must be clearly disclosed in, and substantiated by, the record. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); FTC v. Sperry and Hutchinson, 405 U.S. 233, 249, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972); duPont v. Train, 541 F.2d 1018, No. 74-1261, et al. (4th Cir. 1976). In evaluating the course of conduct employed by the EPA, we must, of course, bear in mind that Congress vested that agency with the power to choose among alternative strategies. South Terminal Corp. v. EPA, 504 F.2d 646, 655 (1st Cir. 1974). Nevertheless, because of the “drastic impact” of the statute, see Appalachian Power Co., p. 503, and the anticipatory review provisions of § 509(b)(1) of the Act, which require review of the EPA’s regulations under §§ 301, 302 and 306 within 90 days of their issuance rather than at the time of application to a particular point source, EPA must ordinarily be held to a standard of at least literal compliance with the provisions of the Act. THE REGULATIONS Under the final regulations promulgated by EPA, all existing generating plants of 500 megawatts or more which came on line on or after January 1, 1970 must backfit closed-cycle cooling systems by July 1,1981. All existing units, regardless of size, that began or will begin operation on or after January 1, 1974, are likewise subject to the backfit requirements. Limited exemptions are provided, however, based upon land availability, salt drift impact, and interference with commercial aviation. Finally, all new plants are made subject to narrowly limited no-discharge thermal limitations without exception. The regulations also approve of the use of existing cooling lakes by existing but not new generating units. Cooling ponds but not lakes are deemed acceptable for all units. By definition, cooling water impoundments which impede the flow of a navigable stream are cooling lakes while those which do not are cooling ponds. There are presently three basic methods of closed-cycle cooling systems which may be employed to meet the requirements set forth in EPA’s regulations. These are: (a) evaporative cooling systems such as wet cooling towers and spray systems; (b) cooling ponds and lakes; and (c) dry cooling towers. EPA itself has indicated, however, that this latter method of cooling, which employs huge radiator-like devices, cannot generally be applied to large electrical generating units due to the significant loss of plant efficiency which results. The most commonly used form of evaporative cooling is the wet cooling tower, either natural or mechanical draft. Natural draft cooling towers are enormous concrete cylinders, which may be 350 to 550 feet in diameter and 300 to 600 feet tall. The bottom one-tenth of the tower is filled with slats and baffles to break up the water and expose a larger surface area to the air flow so as to increase evaporation. Warm water from the condenser is pumped to the top of the tower, there discharged, and cooled by moving air as it falls to the bottom. It is there collected and returned to the condenser. Mechanical draft evaporative cooling towers are composed of modules (each a miniature tower) approximately 70 by 40 feet, placed side by side for distances up to 600 feet. Large top or side mounted fans on each cell provide the air movement for a forced draft to aid evaporation as the warm water drops to the bottom of the tower. Spray ponds are also used for cooling. They consist of artificial ponds or canals into which water is sprayed. The water is cooled by evaporation resulting from the contact with the natural air currents during the spraying and after collection in the pond. Cooling ponds and lakes represent the other practical systems. They normally consist of artificially constructed bodies of water built by damming a natural watershed. The condenser water is fed into the cooling lake or pond where it is cooled through evaporation. It is then recycled to the condenser. REGULATORY CHALLENGES (a) The Act’s Regulatory Scheme — Flexibility v. Uniformity Petitioners argue that the steam electric regulations are excessively rigid in that EPA has prescribed nationally uniform effluent limitations rather than “guidelines for effluent limitations” as required by § 304 of the Act. In essence, they contend that there is no authority under the Act for the issuance of uniform effluent limitations. In large part, this controversy centers around whether the regulations in question were issued under § 301 or § 304. This issue was raised and considered by this court in the case of duPont v. Train, 541 F.2d 1018, Nos. 74-1261, et al. (4th Cir. 1976). In that case, we concluded that the EPA was permitted to establish limitations under § 301 which would be generally applicable to point sources by categories. P. 1026 et seq. We further concluded that the agency could validly impose limitations in terms of single numbers rather than a range of numbers. P. 1027. We went on to state, however, that “[f]or all sources, both existing and new, we believe that the solution which most nearly satisfies congressional intent is recognition that the regulations are presumptively applicable to permit applications.” P. 1028. Thus, the issuer of a permit under § 402 may consider whether a particular applicant is to be held strictly to the confines of the agency’s regulations. The burden of proof remains upon the applicant, however. Only after he has established the inappropriateness of the regulations as applied to him, for example, employing the generic factors of §§ 304, 306 or any specific variance clauses promulgated thereunder, need the permit issuer go beyond the regulations. Of course, the permit issuer does not have unreviewable discretion in determining whether limitations prescribed under a particular regulation should be deemed inapplicable to any individual point source. Under § 402(d)(2), EPA may prevent the issuance of any permit to which it objects. Thus, through the exercise of this veto power, the agency may insure that the permit grantors give proper recognition to the need for uniformity in the application of the Act while at the same time recognizing variables which may exist from location to location and plant to plant. Because we are of opinion that the regulations are only presumptively applicable, we think they are not so rigid as to compel an inflexible application of the Act. Accordingly, we reject this portion of the Industry’s argument. (b) The Variance Clause The petitioners have also pressed a number of complaints about the adequacy of the variance clause in the steam electric regulations.3 **************** That provision allows for modification of the 1977 effluent limitations applicable to a particular point source upon a showing that factors relating to that point source are fundamentally different from those considered in the establishment of the applicable single number limitation. Specifically, Industry contends that: (1) the variance clause is too narrow because it is activated only by “fundamentally different factors;” (2) it should apply to 1983 and new source performance standards; and (3) it should include consideration of economic impact. As we noted in duPont, 541 F.2d 1018, Nos. 74-1261, et al., provisions for variances are appropriate to the regulatory process. This is particularly so in the case of regulations having presumptive applicability throughout the nation. The factors to be taken into consideration, however, ought ordinarily to be at least as broad as the factors relied upon in establishing the limitation if the provision is to have meaning. In the instant case, EPA has said that a variance from the 1977 standards will be granted only where “the factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from those factors considered in establishing the guidelines.” Thus, only technical and engineering factors, exclusive of cost, may be considered in granting or denying a variance. Based upon the Act taken as a whole, we are of opinion that such a variance clause is unduly restrictive and, accordingly, 40 CFR § 423.12(a) must be set aside and remanded for further consideration. Thus, it would appear that, unlike the case in duPont, the administration of these regulations is not a matter of speculation. As such, they are properly the subject of review at this time. We begin with the observation that § 301(c) of the Act provides that EPA may grant a variance from the 1983 standards to any point source upon a showing that “such modified requirements (1) will represent the maximum use of technology within the economic capacity of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.” Clearly, the Act, in its regulatory plan, contemplates increasingly stringent control measures for existing and new sources culminating in the elimination of the discharge of all pollutants into navigable waters by 1985. We are of opinion that the initial phase of these regulations, the 1977 standards and the subsequent new source limitations, were not intended to be applied any less flexibly than the final Phase 11-1983 requirements. Thus, if such factors as the economic capacity of the owner or operator of a particular point source is relevant in determining whether a variance from the 1983 standards should be permitted, they should be equally relevant when applied to the less stringent 1977 standards as well as the new source requirements. In addition, we note that both § 304 (1977) and § 306 (new sources) provide that the factors to be taken into consideration in determining the 1977 and new source standards include not only the engineering aspects of the various types of control technology, but also (1) the total cost of application of such technology (cost of achieving such effluent reduction) and (2) the resulting non-water quality environmental impact (including energy requirements). The EPA has offered no reasoned explanation for limiting the variance clause to considerations of technical and engineering factors only. Certainly the adverse non-water quality environmental impact which may result from the strict application of the agency’s effluent limitations to a particular plant is as significant as the technological difficulties which may be encountered. The same may be said for a consideration of energy requirements. Upon reconsideration, then, EPA should come forward with a meaningful variance clause applicable to existing as well as new sources, taking into consideration at least statutory factors set out in §§ 301(c), 304(b)(1)(B) and 306(b)(1)(B). (c) Section 315 Report Industry next argues that § 301(b)(2)(A) precludes a no-discharge limitation as a 1983 standard absent achievability findings based upon available information including that developed pursuant to § 315(a). This latter provision creates a National Study Commission to review and report on “all of the technological aspects of achieving, and all aspects of the total economic, social, and environmental effects of achieving or not achieving the effluent limitations and goals ... for 1983. . ” Since this report was not published at the time of the promulgation of the regulations, it is Industry’s position that EPA has improperly promulgated the thermal limitations in question. The legislative history of § 315 indicates, however, that Congress did not intend that the Commission report be a condition precedent to the establishment of the 1983 standards. It appears, rather, that the report was intended to provide an independent evaluation of the economic, social, and environmental aspects of the regulatory plan to be obviously used in Congressional review of the agency’s functions. A part of the explanation of Senator Muskie filed with his filing of the Conference Report of the joint House-Senate conference concerning the Act is directly in point: “The House amendment provided a study by the National Academy of Sciences of social, economic and environmental implications of ‘best available demonstrated technology’ and of any effluent limits which would require the ‘elimination of the discharge of pollutants’. Under the House amendment, such a study would have been completed in two years and would have been a condition precedent to any requirements beyond January 1, 1976. “The Conference agreement does not require a subsequent action of Congress to trigger those aspects of the program which are commonly referred to as Phase II and beyond. The requirement to achieve effluent limitations based on the best available technology and the elimination of discharge of pollutants are automatic on enactment.” These remarks are supported by the joint Explanatory Remarks by Conference Committee which indicates that the House version of § 315 conditioning implementation of Phase II standards upon receipt of the Commission report was rejected. We are accordingly of opinion that EPA properly promulgated no-discharge limitations under § 301(b)(2)(A) prior to the submission of the § 315 report. (d) Thermal Backfit Requirements (1) 1983 Requirements — Reduction for . Existing Units Industry contends that EPA’s 1983 thermal backfit requirements for existing units are invalid because the agency failed to balance the overall social benefits to be derived from its regulations against their social costs. In essence, these regulations, which purport to establish effluent reduction levels attainable by the application of the best available technology economically achievable, require all existing generating units placed in service after December 31, • 1973, as well as all units of 500 megawatts or greater coming on line after December 31, 1969, to backfit closed cycle cooling. Petitioners argue that the 1983 effluent limitation standards set forth in the Act reflect an intent on the part of Congress that social benefits of pollution control be measured against their costs in choosing among alternative strategies. EPA, on the other hand, takes the position that the language of the Act pertaining to the 1983 standards requires no balancing of social benefits against social costs. Moreover, the agency asserts that even if the Act were held to so require, it has, in its rulemaking, analyzed the benefits of the challenged regulations and found them to be worth the associated costs. It further asserts that it agrees with its environmental contractor, Energy Resources Company (ERCO), when it states that “benefits cannot be properly assessed within the present state of the Art.” We disagree with EPA’s (and partially with Industry’s) assertions, and, accordingly, set aside and remand for further consideration § 423.13(l), (m). In duPont, 541 F.2d 1018, Nos. 74-1261, et al., we rejected Industry’s contention that benefits derived from a particular level of effluent reduction must be quantified in monetary terms, and such contention is rejected here. This reflects the simple fact that such benefits often cannot be reduced to dollars and cents. Nevertheless, EPA is under a statutory duty to determine whether, in fact, its regulations for 1983 will “result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants . . .” 33 U.S.C. § 1311(b)(2)(A). Accordingly, the agency must consider the benefits derived from the application of its effluent reduction requirements in relation to the associated costs in order to determine whether, in fact, the resulting progress is “economically achievable,” and whether the progress is “reasonable.” EPA argues, however, that it has, in fact, assessed the benefits to be derived from its regulations and has therefore satisfied the requirements of 33 U.S.C. § 1311(b)(2)(A). In support of this contention, EPA refers to the table below. According to that table, EPA calculated the incremental production costs, capital costs, fuel consumption and capacity reduction which would result from the application of closed-cycle cooling at existing plants of various ages. These incremental values were then compared to the amount of heat kept out of the water by such systems. Based upon the resulting cost-effectiveness ratios, EPA concluded that the thermal control technology there analyzed resulted in more favorable effluent reduction benefits when applied to newer and larger generating units. The analysis also indicated the cost per unit of electricity which accrued as a result of applying closed-cycle cooling to the various generating units. Based upon this study, EPA contends it limited coverage of its backfit regulations to units having baseloads of 500 megawatts or more and coming on line after 1970. Smaller units put into operation after 1973 were likewise required to adopt closed-cycle cooling systems. Industry challenges EPA’s reliance upon these figures on the ground that they do not indicate whether the regulations will result in reasonable further progress toward the national goal. We agree. EPA’s study merely establishes the cost-effectiveness of installing mechanical draft cooling towers at individual plant sites. It in no way indicates whether, in light of the associated costs, application of such systems will result in reasonable effluent reduction levels. In response to this, EPA cites the report of its environmental contractor, ERCO, which it claims satisfactorily analyzes the environmental benefits and risks associated with the various alternatives which were before it. The foundation of this report was apparently a random sample taken of various power companies throughout the country. Based upon this sample, the report concludes that if a generating unit uses less than 30% of a stream’s flow, there will be no ecological danger. If as much as 70% of the stream flow is used more than five percent of the time, however, there will be a high risk of such danger. Between these two extremes, the report concludes that there is a medium risk of danger. Yet, nowhere in the report does ERCO state upon what basis it reached this conclusion. Moreover, ERCO goes on to assume that § 316(a) exemptions will issue to all low risk, half of the medium risk, and none of the high risk installations. Again, however, the reason why the exemption would apply to the assumed proportion of installations is not stated. Perhaps it is a result of ERCO or EPA site studies; perhaps not. We are left to guess. By the same token, we note that the low risk category, for example, does not take into consideration the effect of increases in the temperature of the water discharged into the river by the individual generating units. Is this an oversight or do the results of site by site studies justify the exclusion of the very element, temperature, with which the statute is concerned? Again, the record contains no answer. Simply stated, then, the ERCO report upon which EPA now seeks to rely fails to explain and document the basis for the numerous assumptions made and relied upon in its analysis. As such, we cannot say, based upon this report, whether, in fact, EPA’s effluent reduction regulations will result in reasonable further progress toward the elimination of artificial sources of heat from the nation’s waters. Moreover, we further note, finding it to be of some significance, that the record is replete with allusions to the effect of heat upon aquatic life; damage to eggs; different effects on adults and juveniles; the growth of algae; interrupted migration; the thresholds of aquatic communities; differences between streams, lakes and estuaries; are to mention but a few. Yet, despite agreement that the literature is full of learned papers on the subject at hand, EPA contends that the state of the art is not such that the incremental benefits of heat removal from the discharge of generating plants can be predicted. The references throughout the record to the effects of heat on aquatic life, not unreasonably, cause us to consider this position with a certain degree of caution. The references are simply too numerous and are stated by too many people on both sides who are ostensibly qualified to speak. An illustration is a colloquy between Dr. Brooks of the United Water Act Group and Dr. Schneider of EPA: “DR. BROOKS: I would like then, as part of what could have been an answer to that question — I heard earlier that there were numerous shortcomings in existing data available from operating thermal discharges. I think most of us will agree that it is certainly pointed out in the 104 T studies that these deficiencies do exist. Does EPA believe that there is sufficient data to arrive at any predictions of thermal benefits or benefits at all? DR. SCHNEIDER: Is this with respect to specific sites or in general? DR. BROOKS: Both. DR. SCHNEIDER: That is a very broad question. We could write text books on the subject.” Assuming that EPA’s conclusion is correct, that the state of the art is such that the incremental effects of heat are not known with any degree of certainty, the least EPA could have done would have been to articulate what the state of the art was and why, according to scientific opinion, predictions could not be made. Even assuming that it might not be possible to articulate with reasonable certainty the achievability of the benefits to be derived from a specified amount of heat removal, it seems to us that the expectancy might be stated, for if there is no expectancy of benefits to aquatic life, is the expenditure of billions of dollars justified under any standard? We, of course, recognize that EPA may fairly assume that a reduction in the amount of heat discharged will, as a general rule, result in some benefit to the environment. The question is, however, whether the reduction results in reasonable further progress toward the elimination of pollutants. This is ultimately a matter within the sound discretion of EPA itself. Yet, in determining whether a particular reduction level is, in fact, reasonable, EPA must compare the cost of achieving that level of reduction (which it has done) and the ecological benefits to be derived therefrom (which it has not done) with the benefits and costs associated with alternative levels of heat reduction. At the very least, on the best information available, the ecological benefits expected from the ordered reduction should be stated, and, if impossible so to do, EPA should state why. It may well be, for example, that a 90% reduction in thermal pollution at a cost of $5 billion is entirely reasonable even when it is shown that an 80% reduction would cost but $2 billion, for it is possible that the elimination of the additional 10% in total heat discharged would have positive environmental effects which would far outweigh the additional $3 billion in cost. By the same token, if no tangible environmental benefits will accrue by increasing the thermal reduction level from 80% to 90%, the additional expenditure of $3 billion might be considered unjustified. Thus, in choosing among alternative strategies, EPA must not only set forth the cost of achieving a particular level of heat reduction but must also state the expected environmental benefits, that is to say the effect on the environment, which will take place as a result of reduction, for it is only after EPA has fully explicated its course of conduct in this manner that a reviewing court can determine whether the agency has, in light of the goal to be achieved, acted arbitrarily or capriciously in adopting a particular effluent reduction level. Were this not the case, EPA would be free to impose ever more stringent and costly control measures which, while incrementally reducing the level of thermal discharge, would not result in any reasonable improvement in the “chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. It should be made clear, however, that our remand here is very narrow in scope since we do not disapprove the general principle of requiring installation of cooling devices on a part of the planned and existing electrical generators in the country. EPA’s conclusion that the size of the generator and the year of its first service operation offers the best means of determining which units will be required to backfit seems to us to be reasonable and subject to no infirmity now apparent calling for reconsideration. Moreover, we are not now prepared to say the particular sizes of generators and dates of service which EPA has adopted as the breaking points for ascertaining the necessity of backfitting cooling devices on existing or planned equipment are unreasonable on the record before us. Yet, while we are unable to say that EPA has not acted reasonably, neither are we able to say it has not acted “perfunctorily or arbitrarily,” Appalachian Power v. EPA, supra, p. 507, for the “criteria used in reaching . . [the] result” has not been stated other than by way of assumptions rather than by the reasoning of those qualified in the field. As was the ease in Tanner’s Council of America v. Train, 540 F.2d 1188, No. 74-1740 (4th Cir. 1976), there is simply no evidence in the record that would reveal the reasonableness of EPA’s conclusions. To sustain these regulations on the present record, this court would have to trust completely EPA’s conclusions. Judicial review must be based on something more than trust and faith in EPA’s expertise, however. duPont v. Train, 541 F.2d 1018, at p. 1036, Nos. 74-1261, et al. (4th Cir. 1976). On remand, then, EPA must state the benefits especially to aquatic life, for the various alternatives considered if that can be done. If these benefits cannot be stated with any degree of certainty, EPA will state the expected benefits according to whatever scientific opinion it relies upon, fully explicating the basis, including the opinion, upon which it relies. If no expected benefits can be stated, EPA must state why they cannot be and the scientific opinion which supports that conclusion. 2) Economic Achievability of EPA’s Thermal Backfit Requirements Industry also attacks EPA’s backfit requirements on the ground that they will impose a staggering burden on the power industry. According to EPA, its thermal controls will require $5.2 billion in additional funding. Industry, on the other hand, estimates the cost at close to $7.4 billion. The agency contends that even if this higher figure is accepted, capital cost to electric utilities will increase by only 7% between now and 1983. In support of its position that Industry can, in fact, secure the necessary funding to meet the backfit requirements, EPA relies primarily upon an economic analysis of its final effluent standards done by Temple, Baker, and Sloane, Inc. (Temple). Temple’s final report, which was submitted in December of 1974, noted that prior to the 1973 Arab oil embargo, the electric utility industry was planning to spend more than $205 billion for capital equipment. Due to a decline in growth, it found that current estimates of such expenditures should have been revised downward to $179 billion. Temple then took the position that if Industry could have raised the additional $25 billion required to finance its original growth estimates, it “should experience little trouble meeting the added requirements to comply with the final guidelines.” In addition, EPA suggests that the unique relationship that exists between government and the utilities lessens the degree to which Industry must contend with the vagaries of the marketplace. The agency points out that certain factors governing the industry’s future growth such as cash flow, return on capital, and demand growth, are subject to direct manipulation by governmental agencies. EPA further asserts that: “[Bjecause the industry plays an important role in determining the actions of state and federal regulatory commissions, to the extent that they themselves promote such innovative practices as peak power pricing to flatten peak demand, they can be a controlling factor in determining their own future capital needs. If the electric utility industry were genuinely doubtful about its ability to meet its future capital needs, it would now be promoting rate structures conducive to a flattening of peak demand curves, and a reduction in the rate of growth, rather than the type of rate structure currently in widespread use, which encourages greater consumption and the wasting of energy.” EPA Br. at 66. Industry disputes both of these assertions. First, it contends that rate regulation is often, in practice, a constraint rather than an aid in efforts to compete for scarce capital. Moreover, Industry argues that despite EPA’s contentions to the contrary, a reduction in demand brought on by the energy crisis and a general downward turn in the economy does not make available additional capital. Since the EPA’s backfit regulations have been set aside for further consideration, we find it unnecessary to pass on the validity of the agency’s economic analysis. Before any revised regulations are promulgated, however, we direct that EPA fully consider any economic changes which may have occurred in the money market or in the demand projections for the electric utility industry since these regulations were issued, and afford Industry an opportunity to comment upon its analysis. (e) Backfit Requirements for AEG Approved Nuclear Power Plants Industry next contends that EPA’s summary rejection of an Atomic Energy Commission proposal that fifty-five nuclear power units which had completed environmental impact statements be exempted from the backfit requirements was arbitrary and capricious. The National Environmental Policy Act requires every federal agency to take into account the environmental impact of certain proposed actions. Pursuant to this mandate, the AEC’s (now Nuclear Regulatory Commission) licensing process entailed, at every stage of review, an analysis of the economic, social, and environmental costs and benefits of proposed nuclear generating units. Following its NEPA review, the Commission concluded that there were approximately 70 units for which the environmental impacts of thermal effluents were not significant nor sufficiently serious to warrant the cost of closed-cycle cooling. Fifteen of these units were found not to come under EPA’s backfit requirements due to either age or size. The remaining fifty-five units would, however, have been required to install closed-cycle systems unless exempted. Accordingly, Dr. Dixy Lee Ray, Chairman of the AEC, wrote EPA requesting: “[A] special class in the steam-electric power plant category of point sources be established under section 304(b)(1) and 304(b)(2) of the FWPCA. As contemplated by the statute, the class would consist of steam-electric power plants of a certain type (nuclear power reactors) and age (those for which final environmental impact statements had been prepared by the AEC Regulatory Staff pursuant to section 102(2)(C) of NEPA prior to the effective date of the guidelines).” In support of this request, Dr. Ray pointed out that the capital expenditures required to backfit closed-cycle cooling systems at these plants would approximate $2.1 billion in 1974 dollars. Escalation would increase that figure by 50% by the year 1983. In response, Russell E. Train, Administrator of EPA, noted that a similar proposal was considered in preparing the preliminary guidelines but was rejected because “in the opinion of [EPA’s] General Counsel, it would not be legally defensible.” This is the only apparent explanation for EPA’s action. The preamble to EPA’s regulations does not discuss the question nor does EPA’s Development Document or Economic Analysis. Certainly, the bald assertion that AEC’s proposal is “not legally defensible” is not a sufficient articulation of the criteria employed by EPA in reaching its decision. It does not permit the court to in any way satisfy itself that the agency engaged in reasoned decision-making. See, e. g., Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir. 1973). Accordingly, EPA is directed upon reconsideration of its backfit regulations to fully evaluate the AEC’s proposal and set forth its reasons for rejecting or accepting the proposed category in its revised regulations. In so directing, we do not imply that EPA must abdicate its authority over effluent reduction to the AEC or NRC. As the parties themselves point out, such abdication of authority has been repeatedly held invalid. See Calvert Cliffs Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Greene Co. Planning Bd. v. FPC, 455 F.2d 412 (2d Cir. 1972). We do require, however, that EPA “explicate fully its course of inquiry.” Appalachian, supra, at 507. (f) Cooling Lakes as Best Available Technology Under 40 CFR § 423.15(1) and 40 CFR § 423.25(1), the discharge of heat by steam-electric power plants classified as new sources is permitted only in “blowdown from recirculated cooling water systems,” (e. g. cooling towers) and in “blowdown from cooling ponds.” Existing units under 40 CFR § 423.13(1), on the other hand, are permitted to employ a variety of cooling techniques, including existing cooling lakes. Industry, as well as the State of Texas, contends that EPA’s restrictions upon the use of existing and new cooling lakes is both arbitrary and capricious in light of the resulting increase in water consumption. EPA has defined “cooling lakes” as any “manmade water impoundment which impedes the flow of a navigable stream and which is used to remove waste heat from heated condenser water prior to recirculating the water to the main condenser.” 40 CFR § 423.11(n). Cooling ponds, by way of contrast, include “any manmade water impoundment which does not impede the flow of a navigable stream and which is used to remove waste heat from condenser water. . . . .” 40 CFR § 423.11(m). This distinction takes on meaning when considered in light of EPA’s interpretation of the term “navigable waters.” According to the agency, all “[i]ntrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational and other purposes; intrastate lakes, rivers and streams from which fish or shellfish are taken and sold in interstate commerce; and intrastate lakes, rivers and streams which are utilized for industrial purposes by industries for interstate commerce” are navigable waters. At oral argument, counsel for EPA took the position that this includes not only the waters of natural streams, lakes and rivers, but also surface waters which diffuse themselves over the ground and follow no defined course or channel, gathering into no more definite body of water than a wet weather creek. We reject this assertion, being of opinion that, where possible, the collection and use of such surface waters as opposed to natural rivers, lakes and streams furthers the purpose of the Act in restoring and maintaining the “chemical, physical and biological integrity of the Nation’s waters.” We nevertheless recognize that virtually every natural stream falls within this narrower view as to what constitutes “navigable waters.” According to EPA’s regulations, any impoundment which impedes the natural flow of any such stream would constitute a cooling lake and thus preclude it from use for cooling purposes. Despite EPA’s restrictions upon the use of cooling lakes, the agency’s own Development Document specifically identifies such lakes as a form of closed-cycle cooling. It states: “The technological basis for best available technology economically achievable, and new source performance standards consist of closed-cycle evaporative cooling towers and cooling ponds, lakes and canals.” Moreover, that document lists cooling lakes as one of the available technologies for achieving waste heat removal in closed or recirculated cooling systems. As is there noted, such lakes “are similar in principle to open, once-through systems, but . are closed inasmuch as no significant thermal discharge occurs beyond the confines of the lake.” So we see that EPA has itself recognized that cooling lakes represent an achievable method of closed-cycle cooling. In addition, the agency has deemed them to be the best practicable technology for existing generating units presently employing such lakes. Despite the foregoing, EPA attempts to justify its limitations on the use of cooling lakes on the ground that it is obliged under the Act to ban all new discharges into existing or new lakes because they are navigable waters. We disagree. The Act contains no blanket requirement that all effluent discharges into navigable waters be eliminated. Rather, § 306(b)(1)(B) of the Act merely requires that EPA propose and publish regulations establishing “standards of performance” for “new sources” within a list of “categories” of point sources, giving due regard at least to non-water quality environmental impact and energy requirements. The term “standard of performance” is defined as “a standard for the control of discharges of pollutants which reflects the greater degree of effluent reduction . including, where practicable, a standard permitting no discharge of pollutants.” Thus, where no-diseharge limitations are not practicable in light of the non-water quality impact or other such factors, the “best available” technology may, in fact, entail some discharge of heat into the Nation’s waters. The EPA has itself recognized this in the case of existing generating units employing cooling lakes. Due to the fact that “the addition of recirculating systems to [existing] lakes would substantially increase water consumption,” the agency concluded that cooling lakes were the best practicable technology. Industry contends that this same reasoning holds true for new units on existing lakes as well as units on newly constructed lakes. We agree. EPA’s § 104(t) report supports Industry’s assertion that the use of cooling towers will result in a dramatic increase in water consumption. It concludes that “the evaporation resulting from a given thermal addition to a [cooling] lake is generally less than 50% of the evaporation that will result from similar thermal loading of a cooling tower.” In California alone, the use of cooling towers rather than lakes at all additional power plants projected to be on line by 1990 will create an annual water deficiency of nearly 2.2 million acre-feet; more than double the 1970 prediction. In the Brazos River Basin of Texas, the consumptive use of water for cooling purposes resulting from the installation of cooling towers would increase by one and one-half to two times, according to some estimates. An unanswered argument at this stage of the proceeding is Governor Briscoe’s (of Texas) letter to EPA: “The level of consumptive use of water that would be necessitated by implementing these proposed regulations is not merely unacceptable; Texas simply does not have the water resources available to comply.” EPA dismissed these concerns during the rulemaking process, however, on the ground that “much of the evaporated water would precipitate [again] through the natural water cycle.” This is obviously not a sufficient answer and demonstrates a serious lack of concern for a balanced consideration of the total environmental impact of the regulations. In Arizona and New Mexico, for example, almost all precipitation is from tropical storms which originate in the Caribbean or Mid-Pacific, while in California almost all precipitation originates in the North Pacific. Little, if any, of the water which evaporates in these States returns in the form of rain. Thus, any new use of water in these areas results in a net reduction in the water supply remaining available for other uses. It is clear that Congress intended such reductions in water supply to be taken into consideration by EPA in determining the best available technology to abate effluent discharges. The basic directive of the entire Act is set forth in § 102(a) of the Act and provides, in part, that EPA must give due regard to “the withdrawal of such waters for public supply, agricultural, industrial and other purposes.” In addition, § 104 provides for continuing comprehensive studies of the effects of the control of thermal discharges. In so doing, it requires that EPA “[i]n evaluating alternative methods of control . . . consider . the total impact on the environment, considering not only water quality but also air quality, land use, and effective utilization and conservation of fresh water. ” This Congressional concern over the conservation of our limited water resources is further reflected in §§ 304 and 306 which require consideration of various enumerated factors including the non-water quality impact of any regulations on the environment in determining what constitutes the “best” technology. We are of opinion, therefore, that EPA’s ban on the use of new and existing cooling lakes is clearly not in accordance with the Congressional directive regarding the conservation of our water resources, probably in most areas of the country, and particularly as that ban applies to regions where fresh water is in short supply. It is evident from an examination of the record that EPA’s regulations will result in needless water consumption and, thus, impede effective utilization of our fresh water resources. Accordingly, 40 CFR §§ 423.13(1), 423.15(1), and 423.25(1) are set aside and remanded to EPA for further consideration with directions that it fully evaluate the total environmental impact of any subsequent regulations which it may issue, particularly with reference to water usage and its effect on the more arid regions of the Nation. On remand, EPA may find it difficult to avoid the logic of the statement of the General Counsel of the Department of Commerce (see, footnote 49, supra) where he concludes that subcategorization of the industry by locality should have been considered taking into account the availability of water for consumptive use. It is difficult for us to see how any program could receive approval which did not, at the very least, balance the consumption of water against the water resources and its effect. Along this line, since the use of water is less in most lakes used for cooling and also for other purposes, their exclusion without taking into account water consumption may only be considered arbitrary and capricious. We repeat for emphasis that EPA must consider the almost immeasurable impact of needless increases in water consumption in any part of the country, especially the arid areas. (g) Sea Water Cooling Towers as Best Available Technology for Open Ocean Dischargers EPA’s regulations also prohibit open ocean thermal discharges and require closed-cycle cooling at power plants located along the nation’s coastlines. Because fresh water towers would exacerbate water shortages in many coastal areas, EPA has recognized that cooling towers in such areas must, of necessity, employ sea water. Industry first challenges the forced construction of such cooling towers at new coastline plants on the ground that sea water cooling towers for full-sized power plants are not “currently available” and, thus, are not “demonstrated” as is required under § 306. We need not reach this question, however, since 40 CFR § 423.13(1), as amended by 40 Fed.Reg. 7095-96 (1975), has previously been set aside. Upon reconsideration of that portion of its effluent limitation guidelines, EPA should, nevertheless, allow industry the opportunity to comment upon any revised regulations insofar as they relate to sea water cooling towers and reconsider its position if industry’s objections have merit. We especially note that the B. L. England Station may well be the only power station presently in existence which approaches the required technology. On remand, particular attention should be paid to data relating to the performance of that station. By emphasizing the B. L. England Station, we do not mean to exclude from consideration on remand other relevant information from legitimate sources. (h) EPA’s Implementation of § 316(a) Section 316(a) of the Act provides that EPA may impose less stringent effluent limitations at any point source than might otherwise be required under either § 301 or § 306 “whenever the owner or operator of any such point source . can demonstrate that any effluent limitation proposed for the control of the thermal component . . . will require effluent limitations more stringent than necessary to assure the projection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water. . . ” Petitioners contend that in implementing this section, EPA must provide that a plant’s compliance with existing water quality standards constitutes prima facie evidence of compliance with the requirements of § 316(a). Accordingly, industry argues that EPA has not properly implemented § 316 and, thus, the applicable regulations must be set aside and remanded for further consideration. We disagree. Industry cites nothing in the Act or its legislative history which requires EPA to adopt its suggested test under § 316. We, of course, recognize that under the Act each state adopts water quality standards for inter- and intrastate water so as to “protect the public health or welfare, enhance the quality of water and serve the purpose of this chapter.” In addition, such standards must take into consideration “[the receiving water’s] use, and value for public water supplies, propagation of fish and wildlife, [and] recreational purposes. . . ” Moreover, EPA is required to review all such standards and revise them where they are deemed inadequate. So we do not agree with Industry that the § 316(a) “protection and propagation” standard must be deemed satisfied if the thermal discharge in question meets the applicable water quality standards as distinguished from effluent standards. EPA points out that state water quality standards typically apply to an entire waterway or a relatively large segment of it. By way of contrast, EPA views § 316(a) as providing for consideration of specific site conditions in the setting of thermal limitations for individual power plants. Thus, while a greater level of thermal effluent by a generating unit might well fall within the general requirements of an approved state standard, EPA takes the position that such discharge might nevertheless cause serious harm to a particular spawning ground, for example located just below the plant’s discharge point. It is such specific site conditions to which EPA contends § 316(a) is directed. While both the position of Industry and EPA have force in logic, we are of opinion that Train v. NRDC, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), is controlling here. There, the court indicated that while an agency’s interpretation of its statutory authorization need not be “the only one it permissibly could have adopted . [if] it was at least sufficiently reasonable it should [be] accepted by the reviewing courts.” 421 U.S. at 75, 95 S.Ct. at 1480. Moreover, the court went on to reiterate that where an agency’s interpretation of a particular Act is not unreasonable, Courts of Appeals ought not substitute their judgment for that of the agency. Id. at 87, 95 S.Ct. 1470. Thus, in the absence of statutory language or legislative history indicating that compliance with state water quality standards should be deemed to satisfy the requirements of § 316(a), we think EPA’s position is reasonable. Accordingly, we decline to set aside 40 CFR Part 122 implementing § 316(a) of the Act. (i) Rainfall Runoff Regulations EPA’s regulations also limit suspended solids in rainfall runoff from areas disturbed by construction activity or used for “material storage” to 50 mg./l. Industry challenges these limitations on the grounds that (1) they are impermissibly vague and apply to nonpoint source runoff; (2) EPA did not adequately consider control costs; and (3) the record does not support the 50 mg./l limitation. (I) Applicability to Nonpoint Sources Congress consciously distinguished between point source and nonpoint source discharges, giving EPA authority under the Act to regulate only the former. Section 502(14) defines a “point source” as: “[A]ny discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged. Industry agreed throughout the rulemaking that contaminated runoff discharges from coal storage and chemical handling areas fell within this definition and should be subject to reasonable controls. It does not contest such application of the regulations. Contaminated runoff from these limited areas is, according to Industry, ordinarily collected into a “point source” and can reasonably be treated so as to remove any pollutants. Industry asserts, however, that EPA’s material storage runoff regulations purport to cover not only point sources such as coal storage areas, but also nonpoint sources as well. Rainfall runoff from areas such as those used to store construction material is, according to Industry, not normally routed into a “point source” collection system, and it is Industry’s contention that EPA has no authority to compel such collection so as to transform a nonpoint source into a point source. EPA, on the other hand, argues that runoff from material storage sites, where channeled into a settling pond or other such collection system, is clearly subject to regulation. Thus, it takes the position that to exempt uncollected runoff from regulation would be to permit pollution by indirection which would otherwise be barred. There is some logic in EPA’s position, and we do not dismiss it lightly. Yet, Congress has limited the definition of “point source” to “any discernible, confined or discrete conveyance.” Broad though this definition may be, we are of opinion that it does not include unchanneled and uncollected surface waters. Industry also argues that while EPA’s construction runoff regulations do purport to limit themselves to “point source” application, they fail to define the discharges to which they apply. This difficulty is allegedly brought about by the regulations’ failure to define the area which they cover other than to say they include point source rainfall runoff from “any construction activity and any earth surface disturbed by such activity” related to power plants. We agree. It is impossible to determine from the regulations whether the construction, for example, of chemical treatment plants, sewage lines, fuel storage and transportation facilities or other such units are subject to control. The only indication as to the breadth of these regulations is found in EPA’s Development Document which states: “Rainfall runoff waste water sources include material storage drainage and runoff from construction activities. Construction activities include only those in the immediate vicinity of the generating unit(s) and related equipment. Runoff from other parts of the site (land and future generating units, construction of access roads, cooling ponds and lakes, visitor centers, etc.) is not intended to be covered by these limitations.” This limitation upon the applicability of the rainfall runoff controls is, however, not found in EPA’s published regulations. While the regulation is limited to point sources, the all-embracing aspect is not supported by the development document, the limits in which cannot be deemed to provide the guidance necessary for either the enforcing authorities who must apply these regulations on a case-by-case basis or the dischargees who must conform their activities accordingly. We are of opinion that EPA’s rainfall runoff regulations must be set aside and remanded with directions that EPA clarify the scope of their applicability and properly limit any subsequent controls to “point sources” only. (2) EPA’s Consideration of Costs Industry also argues that EPA, in arriving at its limitations, did not adequately consider the cost of controlling ash pile and construction site runoff. It appears from the record that in estimating the costs associated with such control, EPA relied entirely upon data relative to coal pile runoff. The agency concedes this fact but argues that, insofar as the regulations apply to ash piles, the omission of the data is immaterial due to their rarity. If the agency by regulation controls the runoff from ash piles (however rare) and construction activity (concededly common), it must consider the cost. That is the command of the statute. §§ 304(b)(1)(B); 304(b)(2)(A); 306(b)(1)(B). EPA’s cost analysis is also deficient for another related reason. EPA’s new source standards for disposal of fly ash effectively require the abandonment of the method of hydraulic transport of fly ash to ponds for settling by prohibiting any “discharge of TSS or oil or grease in fly ash transport water.” The practical effect of this standard on coal-fired generating units, according to Industry, is to require all such plants to utilize dry fly ash transport systems. Such systems produce large amounts of ash which will require storage — over 1000 tons per day at a single plant. Given EPA’s observation that most new generating units will be either coal or nuclear facilities, it would appear that the costs of the required controls applicable to ash piles will be significant. Without the use of hydraulic transport for fly ash, it is obvious that the ash pile which EPA now describes as a rarity will become common in the immediate future, especially at coal burning installations. Indeed, it is mandatory that something be done with the ash. And so long as it is an acceptable alternative (as it must be since EPA wishes to control it), the cost of its maintenance and control must be considered. Industry further contends that, in relation to the construction site runoff limitations, a 3,000 MW plant will require, exclusive of any coal storage area, 100 to 400 acres of land, much of which will be the location of some construction activity. Collecting and treating runoff from such large areas, according to Industry, will cost far more than EPA’s coal pile cost estimate. Even if we were to assume that Industry has over-estimated the area affected by the regulations as well as the associated costs, we are nevertheless of the opinion that EPA has failed to offer any data to support its conclusion that the cost of treating construction site runoff is comparable to that required in controlling coal piles. Accordingly, upon reconsideration of its rainfall runoff regulations, EPA is directed to evaluate the associated cost of controlling ash pile and construction site runoff (as well as the maintenance of ash piles which is later discussed) before establishing any new discharge limitation. (3) Evidentiary Basis for the 50 mg./l Limitation Finally, Industry takes the position that the record offers no support for EPA’s conclusion that the 50 mg./l limit on suspended solids in rainfall runoff from construction activity or material storage areas (other than coal piles) is attainable by the treatment method identified by the agency as “best available.” We agree. As has been noted, EPA did not evaluate any “controlled area” relative to construction site or ash pile runoff. While there is data in the record concerning control techniques for coal pile runoff, there is no indication that such technology is feasible in the context of construction site or ash pile runoff. EPA states “[t]he rainfall runoff limitation was derived from runoff studies done for the Agency” citing a March 1975 study at a Pennsylvania strip mine. Although the study shows a 92.8% efficiency in removal of solids, it is not available support for the regulations because it was made after the regulations were promulgated. Tanners Council, 540 F.2d 1188, p. 1191, Nos. 74-1740, et al. (4th Cir. 1976). Industry additionally argues that even with 92.8% efficiency, if the runoff level of 10,000 mg./l TSS were encountered as was demonstrated at a Washington mine, the TSS discharged would be 720 mg./l, or more than 14 times the acceptable level of the regulations. EPA, of course, had no opportunity to reply to this argument, yet enough has been shown to require a remand for reconsideration of the whole problem. We add that no data is in the record on TSS concentrations from ash pile runoff or control of that problem. We express no opinion as to whether, in fact, the limitation is appropriate or whether the technology (settling ponds) is acceptable. We merely conclude that the regulations are not supported by the record and that on remand EPA must establish that the required control techniques applicable to such sites can reasonably be expected to achieve the required effluent reduction which also must be supported by the record. (j) EPA’s No-Discharge Standard for Fly Ash Transport As previously noted, EPA, in setting new source standards under § 306 of the Act, adopted a rule requiring no discharge of suspended solids from fly ash transport water. As a result, coal-fired power plants will be required to use dry fly ash transport systems. Industry contends that in developing this no-discharge standard, EPA failed to analyze thoroughly the factors set forth in § 306. In essence, it is Industry’s position that EPA has failed to show that dry fly ash transport systems are available to all sources required to employ them. We agree. In support of its no-discharge regulations, EPA asserts that the record shows the successful use of dry systems at nine geographically dispersed centers and that the agency thoroughly considered the data derived from these sites in developing the dry fly ash standard. An examination of those portions of the record cited to us by EPA, however, indicates that the agency engaged in no meaningful consideration of the cost of achieving the required effluent reduction or the non-water quality environmental impact and energy requirements associated with such systems as is required by § 306(b)(1)(B). Two of the references cited by EPA refer to mostly illegible handwritten notes which are untranslated and largely meaningless. A third reference refers to a one-page summary of a telephone conversation which purports to set forth only the installation cost figures for such systems at two unnamed Georgia Power Company plants. And that report fails to set forth any details as to the systems relative to the type of coal employed or the manner in which the ash is disposed of. In addition, three of the reports relied upon by EPA are, in fact, environmental impact statements for proposed generating units not then in operation. These reports cannot support EPA’s contention that dry fly ash systems are a “demonstrated” form of technology. Finally, EPA refers to a report on the Centralia Steam Electric Project. That report indicates, however, that that unit is a mine mouth plant which uses low sulfur coal from a strip mine located immediately adjacent to the plant site. The ash which is generated by plant operations is hauled back into the mine, a unique arrangement not generally available to most power stations. That, then, leaves only two plants which purportedly have dry fly ash systems — one in New York State and another at Turkey Point, Florida. The only indication in the report as to the manner in which fly ash is treated at Turkey Point is the assertion that: “Fly ash from mechanical collectors is recirculated to the boilers for reburning. Accumulated ash in the boiler bottoms is removed by hand and sold for the vanadium content.” There is no indication whether the plant is coal- or oil-fired; what type of ash storage is employed; what the cost of any dry fly ash system was; or what, if any, non-water quality impact the use of such a system has had on the adjacent area. The report on the New York station, located at Ludlowville, is no more complete in terms of satisfying the criteria set forth in § 306(b)(1)(B). That report indicates that the total generating capacity at the site is only 300 MW. There is no indication as to the amount of ash produced annually, but it appears that it is collected in silos and disposed of by trucking it away to land fill sites. While it appears that the dry collection system was installed in 1972 at a cost of $5.6 million, there is no indication as to the resulting effluent reduction which occurred, if any. Moreover, the report does not show the methods employed to stabilize the fly ash at the disposal area or the costs associated with such disposal. Finally, there is no indication as to the effect landfill disposal has upon the environment or the energy requirements for the transfer of the ash from the plant site, considerations mandated by § 306. Thus, whether taken as a whole or read separately, the reports cited to us in the record belie EPA’s assertion that dry fly ash systems have been used successfully in nine geographically dispersed areas of the country. Moreover, it is apparent that EPA has not adequately considered the costs associated with the required technology. The only cost data referred to in EPA’s brief is based upon the one-page summary of a telephone conversation regarding two unnamed power stations. As has been noted, that report does not set forth the nature of the systems employed or the manner of ash disposal. Thus, based upon the present state of the record, we set aside the dry fly ash regulations, 40 CFR § 423.15(e) and § 423.25(e), for new sources and remand them for further consideration. On remand, EPA is directed to fully and systematically explicate the basis for its actions, giving full weight to the statutory factors set forth in § 306 of the Act. It should negate Industry’s well taken complaint that “[t]here is no information in the record to show detailed studies of dry fly ash transport and disposal systems and techniques.” (k) Credit for the Intake of Pollutants Industry next challenges EPA’s chemical effluent limitations on the ground that the standards imposed are absolute and apply regardless of the pollutants in a plant’s intake water. It is Industry’s position that EPA has no jurisdiction under the Act to require removal of any pollutants which enter a plant through its intake stream. We agree. Section 301(a) of the Act provides that “the discharge of any pollutant by any person shall be unlawful.” In turn, § 502(12) defines the term “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source. ” Thus, the Act prohibits only the addition of any pollutant to navigable waters from a point source. Those constituents occurring naturally in the waterways or occurring as a result of other industrial discharges, do not constitute an addition of pollutants by a plant through which they pass. By imposing gross limitations, Industry argues that EPA has charged each point source with the responsibility of removing not only its own increment of pollutant from the waterway but also all pollutants, natural or otherwise, presently in the waterway. EPA asserts that the objection about which Industry complains has been remedied by recent amendments to the regulations. Specifically, 40 CFR § 125.28 provides that a discharger will be credited for pollutants in his intake water, but only if he “demonstrates . . . that specified pollutants which are present in the intake systems designed to reduce process wastewater pollutants and other added pollutants to the levels required by applicable limitations or standards.” Industry is, nevertheless, required to treat and reduce pollutants other than those added by the plant process. This, we are of opinion, is beyond the scope of EPA’s authority. Industry would have us set aside the present utility industry regulations and remand them to EPA in order that they may be redrafted to cover only net as opposed to gross discharges of pollutants. We feel this is unnecessary, however. Instead, we are of opinion that the regulations here challenged may be brought into conformity with the Act by construing 40 CFR § 125.-28(a)(2) to read as follows: “The applicant demonstrates to the Regional Administrator, prior to the issuance, denial or modification of his permit, that specified pollutants which are present in the applicant’s intake water will not be removed by wastewater treatment systems as designed and used to reduce process wastewater pollutants and other added pollutants to the levels required by applicable limitations or standards.” Thus, we construe the reference to a “treatment system” in § 125.28(a)(2) to mean those systems designed and used for the removal of process waste water pollutants. This allows industry a credit for all pollutants in a particular plant’s water supply, and the present regulations, though couched in terms of gross limitations, will, in effect, be construed to impose only net discharge standards. As such, no plant could be said to be in violation of the limitations on account of pollutants that it did not add to the water. (1) Unique Factors Affecting Consolidated, Edison Consolidated Edison seeks more flexible regulations due to its somewhat unique location in New York City. It cites the age of its buildings with the accompanying problems, the unavailability of land, the' actual use for navigation of the already badly polluted New York harbor, and the extremely high costs; factors which it and other power companies physically located in highly populated industrialized areas must face. While it must be acknowledged that the problems faced by Consolidated Edison are those of few, if any, of the other power companies in the country, so far as its petition may be read as a request for leniency because of the already polluted condition of the harbor, it must be rejected. The 1972 amendments to the statute changed the system from that of control of the quality of the body of water to effluent limitations as we have before noted. But we have, we think, in providing for a more liberal variance provision, afforded this utility an avenue for relief. If it is doing all that the maximum use of technology within its economic capability will permit and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants (which recitations are not meant to be taken as an inflexible standard in the preparation of a new variance provision), no reason appears why Consolidated Edison should not be able to procure such a variance should it comply with any other requirements of the variance. In so noting, we do not imply that Consolidated Edison is or may be entitled to any such variance. That question is not before us now and should await action for a variance. We do not imply that such qualifications may be cost free; far from it, for economic capability of the applicant will be judged by the agency considering the variance application. CONCLUSION In summary, the following regulations are set aside and remanded to EPA for further consideration: 40 CFR § 423.12(a) — variance provision for effluent limitation guidelines representing the degree of effluent reduction attainable by the application of the best practicable technology currently available. 40 CFR § 423.13(l)(m), as amended by 40 Fed.Reg. 7095-96 — Thermal backfit requirements representing the degree of effluent reduction attainable by application of the best available technology economically achievable. 40 CFR § 423.13(1), as amended by 40 Fed.Reg. 7095-96, and 40 CFR § 423.15(1), and 40 CFR § 423.25(1) — EPA’s ban on the use of new and existing cooling lakes as an acceptable form of closed-cycle cooling. 40 CFR §§ 423.40 through 423.43 — rainfall runoff limitations for material storage and construction site runoff. 40 CFR § 423.15(e) and 40 CFR § 423.-25(e) — EPA’s no-discharge limitation for fly ash transport water. In addition, we direct that EPA reevaluate (a) its requirements for closed-cycle cooling at generating units located along the nation’s coastlines, and (b) its refusal to create a subcategory for AEC approved nuclear generating stations. We further direct EPA to include a variance provision for new sources in accordance with this opinion. . 33 U.S.C. § 1369. . 33 U.S.C. § 1251 et seq. . 33 U.S.C. §§ 1311, 1314, 1316, and 1326(a). . Navigable waters under the Act are defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). In addition, it should be noted that certain of the regulations challenged also regulate ash disposal and construction runoff from power stations. . 40 CFR Part 423; 39 Fed.Reg. 8294 et seq. (1974). . 40 CFR Part 122; 39 Fed.Reg. 11434 et seq. (1974). . 40 CFR Part 423; 39 Fed.Reg. 36186 et seq. (1974) as amended at 40 Fed.Reg. 7095 (1975); 40 CFR Part 122; 39 Fed.Reg. 36176 et seq. (1974). . The EPA brief states final regulations were announced to the press on October 2, 1974, the same day as the initial petition was filed in this court. . Section 101(a)(1); 33 U.S.C. § 1251(a)(1). . Section 502(6); 33 U.S.C. § 1362(6). . 1 Leg.His. 264. . No question is raised as to the jurisdiction of the court to hear this case, the parties being of opinion that jurisdiction may properly be invoked pursuant to § 509(b)(1). This is consistent with our opinion in duPont v. Train, 528 F.2d 1136 (4th Cir. 1975), and, thus, need not be considered here. . 5 U.S.C. § 706(2)(A). . 40 CFR §§ 423.11(d), 423.13(l), (m), as amended by 40 Fed.Reg. 7095-96 (1975). . 40 CFR §§ 423.15(l), 423.25(l). . 40 CFR § 423.13(l)(3), § 423.15(l)(2), as amended by 40 Fed.Reg. 7095. . 40 CFR § 423.11(m), (n). . 39 Fed.Reg. 8296. . The height is necessary to create the natural draft required to draw the air through the tower from bottom to top. . 40 CFR § 423.12(a). . 39 Fed.Reg. 28926-27, 30073 (1974), interpreting 40 CFR § 423.12(a). The interpretations of the variance regulations were on August 2 and 13, 1974, while the steam generating regulations were filed October 7, 1974. The variance provisions construed at 39 Fed.Reg. 28926-7 and 30073 (1974) and those here construed are in the same language. . In setting aside these regulations, the court perceives no inconsistency with the action taken in duPont v. Train, 541 F.2d 1018, No. 74-1261 (4th Cir. 1976). In that case, we refused to review the variance provisions involved there on the grounds that their administration in practice was a matter of speculation. At 1028. In the instant case, however, EPA, in the administration of these provisions, has recited that the agency’s position with regard to variance applications is to the effect that “[t]he cost of control is not an element in granting the variance.” 39 Fed.Reg. 28926-7 (August 2, 1974). Again, on August 13, 1974, EPA published a memorandum from the Assistant Administrator for Enforcement and General Counsel to all regional administrators which stated in part: “We have been asked whether this provision allows issuance of NPDES permits which deviate from the guidelines as a result of economic factors. “The answer is ‘no’. The provision is limited to adjustments based on ‘factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger.’ “The reference to ‘other such factors’ must be read in light of the previous factors listed; the intent here was to include factors of a technical and engineering nature, rather than to broaden the scope of the provision to include economic factors.” “Thus the law compels a reading of the effluent guidelines to exclude economic factors from the provision for individual adjustment of effluent limitations.” 39 Fed.Reg. 30073. . In requiring that EPA give weight to the relevant statutory factors in developing a subsequent variance provision, we in no way intend to imply that EPA’s regulations must provide for a detailed cost-benefit analysis at the permit granting stage. As we indicated in duPont, 541 F.2d 1018, Nos. 75-1261, et al., an overall cost-benefit analysis for each category or subcategory satisfies the mandate of § 304 in this regard. The variance provision should, however, allow the permit issuer to consider significant cost differentials of the particular point source involved. . 33 U.S.C. § 1325(a). Apparently (so far as we are now advised) a report of the Commission was voted on March 2, 1976. See BNA Environmental Reporter, March 5, 1976, for comment, p. 1865-66, and text, p. 1890-91. . 1 Leg.His. 174-75. . 1 Leg.His. 319. . 40 CFR §§ 423.11(d), 423.13(l), (m), as amended by 40 Fed.Reg. 7095-96 (1975). . 33 U.S.C. § 1311(b)(2)(A) provides in part: “Not later than July 1, 1983, effluent limitations . . shall require application of the best available technology economically achievable . . . which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants. . . . This table appears in both EPA’s preliminary and final development documents and was available to Industry during the comment period allowed on the proposed regulations. . 40 CFR § 423.11(d). . By tangible environmental benefits, we mean something more than BTU’s of heat rejected. Certainly, to exaggerate to make the point, it could not seriously be contended that a reviewing court could say that an overall reduction of, say, 10 BTU’s of heat discharged into the nation’s rivers at a cost of $5 billion represents a reasonable reduction level. So we see that it is only when the reduction level and the associated costs are compared with the environmental benefits to be expected that a critical evaluation of EPA’s actions can be made. In this respect, § 304(b)(1)(B), for example, requires “consideration of the total cost of application of technology in relation to the effluent reduction benefits” for 1977 standards. Had Congress intended merely to require a standard of the percentage of heat removal, it would have provided for a simple equation and the drafters would have done so. . Industry, in its brief, contends that it “will be hard pressed, if it is able at all, to finance its future public obligations.” While we are sympathetic to the plight of the electric utilities, the mere fact that these regulations will bring added pressure to bear is not a sufficient basis upon which this court may conclude that EPA has acted arbitrarily. Only if Industry establishes that EPA’s conclusions as to the economic achievability of these backfit requirements are erroneous under the standards of review to be applied in such cases may the regulations be set aside. The fact that there may be great cost associated with compliance is a political judgment of Congress and not subject to review except under the very narrow standards associated with constitutional questions and review. of administrative decisions. . Industry does not explain in its brief the basis for its higher cost estimate nor does it challenge EPA’s method in arriving at its $5.2 billion figure. It also claims at least $6.5 billion additional costs (EPA says $4.3 billion) for construction work in progress and chemical controls and the expense of the Clean Air Act compliance of $13.3 billion. . We note in passing that this report was submitted after the final regulations were issued. It was, however, an up-to-date of an earlier report and Industry raises no issue as to its timeliness. Since the regulations are to be remanded, Industry will be afforded an opportunity to offer any objections which it may have to Temple’s assumptions and conclusions. . The growth rate of electricity demand fell from its historic level of 7.2% to 5.5% following the Arab oil boycott. Industry contends that growth is returning to the historic level which may substantially undermine EPA’s basic assumptions. On remand, EPA should fully evaluate this contention in developing revised regulations, taking into account the latest economic data and forecasts for the industry as well as the nation. . 42 U.S.C. § 4321 et seq. . Since 1971, the AEC-NEPA review process has been governed by Appendix D to 10 CFR, Part 50. This was reinstated on July 18, 1974, in 10 CFR, Part 51. 39 Fed.Reg. 26279. . EPA contends that an order that it reconsider the AEC’s proposal would, at this time, be an empty gesture since EPA and the Commission have declared themselves to be in substantial agreement as to the fifty-five units in question. Despite the fact that a tentative EPA-NRC agreement may have been reached that none of these plants need backfit, we were informed by counsel for EPA at oral argument that no permits have yet been issued to these plants. Moreover, even if the permits had been issued, Industry is compelled by the anticipatory review procedures of § 509 of the Act to challenge the agency’s failure to provide for a subcategory of nuclear power plants now or forego all review. Thus, we do not agree that the issue is moot. . In addition to the industry petitioners and the State of Texas, the Brazos River Authority also joins in challenging this portion of the regulations. The Authority is an organization created under the laws of Texas and is charged with conserving the waters of the Brazos River. It owns and operates two major reservoirs and has a third under construction. In addition, it owns the conservation storage in six federal reservoirs along the tributaries of the Brazos. . 40 CFR § 125. l(p). . 33 U.S.C. § 1251(a). . Development Document at 2. . Development Document at 496. . Id. . 33 U.S.C. § 1316(a)(1). . We similarly reject EPA’s assertion that before any new discharge of heat may be permitted, there must be a showing under § 316(a) that such discharges will not endanger a balanced indigenous population of shellfish, fish and wildlife in and on the body of water. As Congressman Wright, a member of the Conference Committee considering the Act, stated in a letter to the Administrator: “Congress did not intend, with § 316(a) to relieve EPA of the duty of establishing categories of point sources of thermal discharges and evaluating in each category the effects of factors such as the cost of achieving effluent reductions and non-water quality impacts including energy requirements and water consumption.” We are of opinion that sole reliance upon § 316(a) in assessing whether new discharges would be appropriate would effectively preempt consideration of the statutory factors set forth in §§ 304(b)(2) and 306 for “best available” technology. . Respondent’s Brief at 77. . EPA defends its prohibition of new lakes on the ground that cooling towers, in fact, evaporate less water than cooling lakes. While this may be true in terms of total evaporation considering cooling use only, not all water loss can be attributed to the cooling function since such lakes are multipurpose in nature. They may be designed, for example, so as to augment low stream flows for the ultimate benefit of other water users, and also provide flood control. Also, they may be constructed so as to meet the water needs of communities as well as to provide an opportunity for water recreation. Thus, we reject EPA’s attempt to use isolated water consumption comparisons to support its blanket requirements. . Three acre-feet of water equal one million gallons. . Reflecting this concern over what constitutes the “best available technology” for water short areas, the General Counsel for the Department of Commerce, in a letter to EPA concluded that: “Subcategorization of the industry by locality taking into account the availability of water for consumptive use, should have been considered during formulation of the proposed guidelines.” Similarly, the Federal Power Commission recommended that the “best” technology in water deficient areas should reflect that form of cooling which is least water consumptive. . 39 Fed.Reg. 8303. . As the Federal Power Commission pointed out, “[t]his hydrologic system is such that EPA’s response . . . appears most flipant [sic].” The FPC argued without avail the reasonable position that EPA analyze meteorological and water resource information so that the public could be assured that the effluent guidelines would cause no significant negative environmental impact in any region of the United States. . 33 U.S.C. § 1252. . 33 U.S.C. § 1254(t). . We note in passing that EPA, on March 26, 1976, published proposed new “Effluent Guidelines and Standards” for steam electric generating plants. 41 Fed.Reg. 12694. These regulations were merely proposed and there is no assurance that they will be adopted. However, under them, cooling lakes could be used for cooling purposes to the extent that they qualified as “recirculating cooling water bodpes].” According to § 423.11(o)(3) of the proposed regulations, “recirculating cooling bodpes]” are limited to lakes where: “[t]he projected long-term average annual total discharge from the impoundment is no greater than 100 cubic feet per second per 100 megawatt generating capacity (nameplate capacity) of the plant.” In response to an inquiry by the court made of all parties as to the effect of these proposed regulations upon the present controversy, the Brazos River Authority asserted that the new regulations did not alleviate the problem facing the more arid regions of the country since the definition of recirculating cooling bodies restricts the construction of new cooling lakes to smaller streams. Counsel for both the State of Texas and the United Water Act Group agreed. EPA did not respond directly to this contention but did agree that it would be appropriate to enter an order of remand as to the remaining cooling lake regulations. Since EPA has chosen not to rescind the present regulations and since they apparently will not alleviate the problem facing Texas and other such states, this court is of opinion that the issuance of the proposed regulations does not render the present controversy moot. To the extent that EPA has retreated from its earlier position banning the use of all cooling lakes by new point sources, however, the court considers this a concession that its earlier position as to water consumption may have been in error. . 40 CFR § 423.13(1), as amended by 40 Fed. Reg. 7095-96 (1975). . 39 Fed.Reg. 36190 (1974). . 33 U.S.C. § 1326(a). . EPA’s regulations implementing § 316(a) are at 40 CFR Part 122, especially subparts B and C, 39 Fed.Reg. 36175-84 (1974). . 33 U.S.C. § 1313(c)(2). . 33 U.S.C. § 1313(c)(2). . 33 U.S.C. § 1313(c)(3). . 40 CFR §§ 423.42, 423.43, 423.45. “Construction runoff” was originally defined as “the rainfall runoff from any construction activity and any earth surface disturbed by such activity from the inception of the construction until construction is complete and any disturbed earth is returned to a vegetative or other cover commensurate with the intended land use.” 40 CFR § 423.41(c). A subsequent amendment inserted the words “point source” before the term “rainfall runoff.” 40 Fed.Reg. 7096 amending 40 CFR § 423.41(c). . The regulations define “material storage runoff” as “the runoff from or through any coal, ash, or other material storage pile.” 40 CFR § 423.41(b). . Sections 301(a), 301(b), and 306 of the Act give EPA authority to regulate point source discharges. Nonpoint sources are subject only to analysis, study, and suggestions, pursuant to § 304(e). . 33 U.S.C. § 1362(14). . 2 App. 209, 438. . 40 CFR § 423.15(e); 40 CFR § 423.25(e). . EPA does not dispute this contention as to the effect of the regulation insofar as it requires dry fly ash transport systems. The agency does assert, however, that such systems have been developed and are in use. . A 2000 MW plant, for example, produces 400,000 tons of ash per year, approximately 70% of which is dry ash. A comparable 2100 MW plant burning low ash coal produces 1,815 tons of ash per day. . Br. for Respondent at 90. . Industry’s 100 to 400 acre estimate includes space for parking lots, drives, and rail, barge or truck terminals, all of which are purportedly excluded from the regulation by the Development Document. See n. 70 supra. . 40 CFR §§ 423.15(e), 423.25(e). The problem is compounded by the fact that air pollution laws and regulations require the collection of almost all fly ash from the stack exhaust which should be distinguished from bottom ash which collects in the furnace bottom. . It is, nevertheless, interesting to note that even this report discounts the value of cost estimates on the ground that “costs can only be realistically evaluated on a plant-by-plant basis, where specific conditions of application are recognized.” 12 App. at 80. . One of the reports relating to the proposed Navajo Project indicates that even if dry fly ash systems were deemed to be “demonstrated,” there might be serious non-water quality environmental consequences arising from their use in certain regions. It is there noted that the National Park Service has raised questions as to whether there is sufficient soil readily available in that area to cover the ash so as to stabilize it without seriously scarring large areas of land. In all events, we do not believe an environmental impact statement may be substituted for compliance with effluent limitations. . 17 App. 103. . Industry contends in its brief that the plant is, in fact, oil-fired and, therefore, the amount of ash generated is relatively insignificant. Pet. Reply Br. at Addendum IV, p. 5. . Respondent’s Br. at 102, fn. 123. . 33 U.S.C. § 1311(a). . 33 U.S.C. § 1362(12). . Such a plant may not, of course, replace a natural constituent in the incoming water, for example sand and silt, with a different contaminating pollutant, for example phosphate, in its waste stream since discharge of the latter would constitute an “addition” of a new pollutant by the plant. . 40 Fed.Reg. 29850 (1975). . 40 CFR 423.12(a) is the only regulation specifically mentioned in the briefs. We will doubtless be advised upon receipt of this opinion if other like sections were intended to have been the subject of review.

Appalachian Power Co. v. Train

BREITENSTEIN, Circuit Judge (concurring and dissenting): I concur in the majority opinion except for its rejection of the variance provision which is found in 40 C.F.R. § 423.12(a) and which applies to the limitations set for the 1977 step in the “Generating Unit Subcategory.” Section 423.12(a) is virtually identical to the variance provisions for the 1977 step found in the regulations for the “Inorganic Chemicals Manufacturing Point Source category.” See e. g. § 415.62. Our decision in DuPont v. Train, 541 F.2d 1018, Nos. 74-1261, etc., dealt with the Inorganic Chemicals Category, recognized the regulatory variance applicable to the 1977 step and the statutory variance applicable to the 1983 step, and then said, p. 1028: “The administration of these provisions in practice is a matter of speculation at the present. The question will arise when a claim for a variance is made in a permit application.” In Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 537 F.2d 642, the Second Circuit rejected an attack on the variance clause pertaining to the 1977 step and followed our decision in DuPont v. Train. See p. 646. In so doing the Second Circuit said, p. 647: “It would be premature at this point to consider whether the variance clause will be interpreted with sufficient liberality to accommodate all legitimate demands for flexibility. Such questions should await the disclosure and development of concrete factual controversies involving a single point source and its permit.” In providing for a permissible variance in the 1977 step, EPA was properly exercising its § 501(a), 33 U.S.C. § 1361(a), power “to prescribe such regulations as are necessary to carry out his [the Administrator’s] functions under this Act.” The statute, § 301(c), 33 U.S.C. § 1311(c), provides a variance procedure pertaining to the 1983 step and refers to the “economic capability” to comply with the requirements of § 301(b)(2)(A). I agree that a regulatory variance applicable to 1977 should not be more stringent than the statutory variance provided for 1983. Properly construed and applied § 423.12(a) is not more stringent. The regulation begins by saying in its first sentence that EPA in establishing limitations took into consideration specified factors, including “age and size of plant, utilization of facilities, * * * control and treatment technology available, energy requirements and costs.” The third sentence says that a discharger may submit evidence: “[T]hat factors relating to the equipment or facilities involved, the process applied, or other such factors related to such dis-charger are fundamentally different from the factors considered in the establishment of the guidelines.” The fourth sentence says that the permit issuer “will make a written finding that such factors are or are not fundamentally different.” The majority opinion construes the phrase “such factors” to apply only to “technical and engineering factors.” The majority’s attempt, fn. 22, to distinguish this case from DuPont v. Train does not convince me. The EPA interpretation mentioned in fn. 22 was before us when we decided DuPont v. Train. A reasonable interpretation of § 423.12(a) is to apply the word “such”, as used in the third and fourth sentences, to the factors mentioned in the first sentence. That interpretation makes the regulatory variance for 1977 substantially conform with the statutory variance for 1983. In any event I would not vacate and remand § 423.12(a) on the assumption that on a claim for variance EPA will give consideration only to “technical and engineering factors,” and will ignore economic capability. The language of the regulation is “equipment or facilities involved.” The regulation does not foreclose consideration of all the factors mentioned in the first sentence. If assumptions are to be made, I would assume that EPA would not apply the regulatory 1977 variance more stringently than the statutory variance for 1983. The statute, § 301(c), mandates consideration of “economic capability.” I agree with the Second Circuit that the question should await “concrete factual controversies.” My dissent is confined to the action of the court in setting aside and remanding § 423.12(a). ORDER ON MOTION FOR CLARIFICATION AND MODIFICATION We have considered the petitioners’ motion for clarification and modification of our opinion in these cases decided July 16, 1976, and the respondent’s opposition thereto. It is accordingly ADJUDGED and ORDERED as follows: I (Variance Clause) A. Page 1378 is amended as follows: “40 CFR § 423.12(a)” shall be changed to read “40 CFR §§ 423.12(a), 423.22(a), and 423.32(a), (§ 423.42(a) having been set aside on other grounds).” See footnote 86. B. We are of opinion that the 1977 and new source standards should not be more stringently applied than the 1983 standards, see duPont, No. 74-1261, 541 F.2d 1018, pp. 1028, 1031-1032, and that reference to the 1983 standards is necessary to determine whether or not the standards for 1977 and new sources have been more stringently applied. Accordingly the opinion, p. 1359, supra, column 2 line 33 is amended to add a comma following 304(b) (1)(B), delete the word “and”, delete period at the end of line and add the following: “and § 304(b)(2)(B).” We are further of opinion, however, that § 301(c) of the statute itself contains a variance clause for 1983 standards. No regulations issued under that section have been complained of. So far as we are advised, the administrator has not refused to issue regulations to give effect to § 301(c), and no variance applied for has been refused. So far as we are told, the administrator has taken no action under that section of the statute. Accordingly, we deny the motion to require EPA to insert a specific variance clause in the 1983 standards. At such time as the administrator acts or refuses to act under § 301(c), his action or non-action will be subject to review. II (Sea Water Cooling Towers) We are now asked by the parties to consider whether or not 40 CFR §§ 423.15(1) and 423.25(1) are valid regulations with respect to new sources using sea water cooling. As those sections have previously been set aside on other grounds p. 1370, we direct that these sections, as well as § 423.-13(1), be reconsidered in accordance with the directions in our opinion at page 1371. Ill (Credit for the Intake of Pollutants) The motion to amend part (k) of our opinion, pp. 1377-1378, is- denied. With the concurrence of Judge Rives, Judge Breitenstein concurring and dissenting in part in a separate opinion filed herewith. BREITENSTEIN, Circuit Judge (concurring and dissenting in part): I concur in the order disposing of petitioners’ motion for clarification and modification of opinion except for those provisions of the order which set aside and remand for further consideration the variance clauses contained in 40 C.F.R. §§ 423.12(a), 423.-22(a), 423.32(a) and 423.42. In my opinion the Administrator of the Environmental Agency acted within the authority delegated by § 501(a) of the Act when he promulgated these regulations. They apply only to the 1977 step. They violate no provision of the Act. We are concerned with informal rule-making, not with adjudication. The construction and effect of these regulations should await determination in some case presenting specific facts. See Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 2 Cir., 537 F.2d 642, 647, and American Petroleum Institute v. Environmental Protection Agency, 10 Cir., 540 F.2d 1023, opinion filed August 11, 1976.

FMC Corp. v. Train

RIVES, Circuit Judge: These petitions seek to have this Court set aside regulations issued on April 5,1974, by the Administrator of the Environmental Protection Agency [hereinafter “the Administrator”] establishing “effluent limitations guidelines” for existing sources and “standards of performance” for new sources for the Plastics and Synthetics Point Source Category adopted pursuant to § 301, § 304(b) and (c), § 306(b) and (c), and § 307(c) of the Federal Water Pollution Control Act, as amended [hereinafter “the Act”]. The Act sets out “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters and establishes as a national goal the elimination of the discharge of pollutants into the navigable waters by the year 1985. § 101(a). Section 306(b)(1)(B) of the Act directs the Administrator to propose and publish within one year federal standards of performance for new sources, defined as a source of pollution discharge, “the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source.” § 306(a)(2). “Effluent limitations guidelines” prescribe the amount of pollution discharge permitted by existing plants and are divided into two phases — a 1977 stage and a 1983 stage. Under § 509(b)(1), review of these regulations lies in the United States Court of Appeals. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976). Support for these regulations under review included a “Development Document for Proposed Effluent Limitations Guidelines and New Source Performance Standards for the Synthetic Resins Segment of the Plastics and Synthetic Materials Manufacturing Point Source Category” [hereinafter “Development Document”] and another study entitled “Economic Analysis of Proposed Effluent Guidelines, Plastics and Synthetics Industry” (September 1973). 39 Fed.Reg. 12502 (April 5, 1974). In promulgating these regulations, EPA divided the plastics and synthetics point source category into 31 product process subcategories and, under these “Phase I” regulations, established single-number effluent standards for various pollution parameters in 13 of the subcategories. Each effluent limitation guideline and standard of performance is a value expressed in pounds of a pollutant that may be discharged by a plant for each thousand pounds of product manufactured. EPA’s methodology for setting these standards was to select for each subeategory a uniform hydraulic flow (expressed in terms of gallons of water per thousand pounds of product or the metric equivalent) and to multiply that figure by an effluent concentration (expressed in milligrams per liter of water or the English equivalent) determined to be attainable by application of the designated technologies. Daily and monthly variability factors were then applied to reflect the varying results achieved even by properly designed and operated treatment facilities. As a result, the standards provide a maximum discharge for any one day and a slightly lower figure which represents the average daily value not to be exceeded over a 30-day period. Petitioners in these cases are manufacturers of plastic and synthetic materials subject to the regulations. In addition to raising technical challenges to the regulations (discussed, infra), petitioners present questions of jurisdiction and Agency authority to issue these “effluent limitations guidelines” under § 301 of the Act. Both issues were raised in related cases decided by this panel. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976); duPont v. Train, 541 F.2d 1018 (4th Cir. 1976) [No. 74-1261], In duPont v. Train, No. 74-2237, we held that judicial review of “effluent limitations guidelines” is properly before a United States Court of Appeals, in the first instance; while in duPont v. Train, No. 74-1261, we held that the Commissioner, under a combination of powers granted to him by §§ 301 and 304 of the Act, does have authority to issue “effluent limitations guidelines.” No further treatment of the two issues is now necessary. In Nos. 74-1400, 74-1502, 74-1503, and 74-1765, petitioners raise the questions of the proper technological standards to be applied to the 1977 and 1983 effluent limitations guidelines and the new source standards of performance. Additionally, the manufacturers contend that EPA’s inadequate assessment of cost, energy use, and non-water environmental detriments failed to fulfill the requirements of the Act. Petitions Nos. 74-1504, 74-1768, and 74-1764 raise the arguments that EPA made serious methodological and technological errors in computing the values set as the effluent limitations guidelines and standards of performance and that EPA failed to substantiate in the record the major engineering and other technical assumptions on which were based its effluent limitations guidelines and standards of performance. In petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, the manufacturers present a detailed analysis of EPA’s alleged methodological errors with regard to a single subcategory — acrylics. EPA has conceded that petitioners’ arguments in regard to acrylics have merit and has agreed to re-examine the data base which supports the effluent limitations guidelines and new source performance standards for the acrylics subcategory and to suspend these regulations during the reconsideration period. (Resp. Brief at 134-136.) In view of this concession, we find it unnecessary to decide the issues raised in petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, and remand these regulations to the Administrator. I. General Validity of the Regulations A. Ranges Petitioners assert that § 304(b) of the Act requires the Administrator to promulgate ranges of values rather than single-number limitations. In duPont v. Train [No. 74-1261], supra at 1029-1030, this Court rejected that same argument, holding that the Act does not contain such an inflexible requirement. Rather, the Administrator is free to exercise reasonable discretion in establishing these pollution standards and may set single-number limitations unless such action is arbitrary in a particular case. B. Data Base Petitioners allege that these regulations are defective because they are based on data obtained only from a small number of plants which were not shown to be representative of the various affected subcategories. This argument is meritless in view of the extensive research conducted by EPA in the development of these regulations. The contractor responsible for compiling the Development Document reviewed both a survey submitted by the Manufacturing Chemists Association (App. 4835-5635) and a study undertaken by the Celanese Research Company under the sponsorship of EPA (App. 6474-6696), as well as applications for discharge permits under the Refuse Act. (Resp. Brief at 35-56.) On the basis of this information, EPA’s contractor, A. D. Little, Inc., selected 19 exemplary plants for testing and study. See Dev. Doc. 98. Given the time pressures of a court-imposed deadline for issuing these regulations, see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 710-714 (1974), it would have been impossible for EPA to have conducted a comprehensive survey of all plants affected by these regulations. See American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027, 1057 (3d Cir. 1975). C. Cost Sections 304(b)(2)(A) and 306 of the Act require the Administrator to consider cost in establishing the 1983 effluent limitations guidelines and new source standards of performance. Additionally, § 304(b)(1)(A) mandates a consideration of the total cost of the application of technology in relation to the degree of effluent reduction to be achieved by the 1977 standards. Petitioners contend that EPA’s assessment of the cost is inadequate for the following reasons: (1) The Administrator’s refusal to make a cost-benefit analysis. Petitioners assert that the statute is not satisfied unless the Administrator quantifies in monetary terms the benefits to be obtained by reducing pollution and compares this sum to the achievement cost. This Court in duPont v. Train [No. 74-1261], supra, has, however, rejected that argument. The Act’s overriding objective of eliminating by 1985 the discharge of pollution into the waters of our Nation indicates that Congress, in its legislative wisdom, has determined that the many intangible benefits of clean water justify vesting the Administrator with broad discretion, just short of being arbitrary or capricious, in his consideration of the cost of pollution abatement. (2) Errors in EPA’s Economic Analysis. Petitioners contend that, while EPA’s economic analysis finds that the “major overriding factor” of cost is the ability of the manufacturer to pass on cost, the Analysis states that it is impossible to determine the economic ability of this industry to pass on costs in 1977 or 1983. Next, petitioners feel that EPA has been callous to small producers who will be forced to shut down in the face of the sizeable capital outlays needed for pollution equipment. Further, they contend EPA’s study includes only the cost of the pollution technology and overlooks the cost of other aspects of pollution control such as monitoring equipment, installation time, etc. Finally, the petitioners contend that EPA’s cost estimates are out of date due to the increased energy costs and include only the cost of implementing the present regulations and not the total cost to industry for water use. Reviewing these contentions, we find no error made by EPA in its economic analysis which rises to the level of arbitrary or capricious action. While EPA must take seriously its statutory duty to consider cost, courts of review should be mindful of the many problems inherent in an undertaking of this nature and uphold a reasonable effort made by the Agency. This requirement should not serve as a dilatory device, obstructing the Agency from proceeding with its primary mission of cleaning up the lakes, rivers, and streams of this Nation. D. Non-water Environmental Impact and Energy Requirements Sections 304 and 306 tell the Administrator that non-water quality environmental impact and energy requirements must be considered in establishing effluent limitations guidelines and standards of performance. Petitioners argue that EPA failed to fulfill this statutory obligation due to inadequate consideration of cost and landfill problems associated with solid waste disposal. We note in the Development Document that EPA has assessed the problems associated with sludge disposal and has even computed a range of disposal costs per pound of product manufactured. Dev. Doc. 146 (App. 6210.) In view of this assessment, it cannot be said that the Administrator failed to perform his statutory duty to consider these factors. II. Validity of Specific Regulations A. Hydraulic Flows 1. 1977 Limitations The hydraulic flows used as the basis for computing BPCTCA were based on “demonstrated wastewater flows” found within the industry for each product and process subcategory. See table 38 of the Development Document (App. 6268). These were established as follows: Wastewater flows observed at exemplary plants were used as the basis when they fell at the approximately [sic] middle of the wastewater flow ranges reported by previous industry and EPA surveys. When the observed flows fell outside of the middle range, a wastewater flow within this range was used as the basis. Dev. Doc. 202 (App. 6266.) EPA asserts that this procedure results in figures that are reasonably typical of each industrial subcategory. Petitioners disagree, citing the following conclusions of EPA’s contractor, A.D. Little, Inc., made in the draft Development Document: In attempting to establish the probable range of wastewater flows for the synthetics and plastics industries, we examined the result of a survey by the Manufacturing Chemists Association to determine if there were any trends with respect to plant size for the same product from different plants. . . . Selected statistical analyses of industry subgroups indicated that the standard deviations were so large compared with the average unit water flow that it was impossible to make any conclusions other than the wide variability of flow rates per unit of production was probably dependent upon the practices inherent at each plant. [I]t is impossible to give a typical process water usage for a given plant production; and the range of flows found within similar product categories is usually greater than a factor of 10, which even prohibits giving a range for narrowly defined segments of the industry. (Emphasis added.) (App. 91.) Given these observations, petitioners contend that EPA was arbitrary in selecting a single hydraulic flow from a wide range of flows and then applying this level of water usage uniformly throughout a subcategory. The ranges in hydraulic flows found among plants in the subcategories bear witness to the contractor’s conclusion that there is no uniform water usage per unit of product manufactured. The following are a few examples. In the polyvinyl chloride subcategory: demonstrated wastewater flow is 1,800 gallons per 1,000 pounds of product, range is 300-5,000 gallons. For cellulose acetate (resin): demonstrated wastewater flow is 5,000 gallons per 1,000 pounds of product, range is 2,000 to 20,000 gallons. For rayon: demonstrated waste-water flow is 16,000 gallons per 1,000 pounds of product, range is 4,000 to 23,000 gallons. EPA in its brief admits that substantial questions have been raised concerning the hydraulic flow chosen for 1977 in the acrylics subcategory. (Resp. Brief at 135.) We think there are substantial questions in the other categories as well and direct EPA to re-examine its use of uniform hydraulic flows for purposes of calculating the regulations in this industry. The legislative history and the statute make clear Congress’ intent that BPCTCA standards are to rely principally upon end-of-manufacturing treatment of wastewater. Expensive internal alterations in production should not be mandated for existing plants by these initial pollution controls. In-process control measures may be required, however, if they are considered normal practice within the industry. Plastics and synthetics plants that consume process water in excess of the uniform “demonstrated wastewater flow” will be unable to meet these 1977 standards unless they obtain an effluent concentration level even lower than that expected by EPA or reduce their water consumption. In many cases, a reduction in water consumption would have to be drastic given the degree of variance between the “demonstrated wastewater flow” selected by EPA and the upper level of the flow ranges found in each subeategory. While EPA suggests that plants follow ordinary water conservation practices, the record gives no basis for finding that EPA is reasonable, to the extent of not being arbitrary, in determining that plants can achieve these flow levels by application of the suggested practices. 2. 1983 Limitations The Development Document does not disclose what flow figures were used for calculating the BATEA (1983) limitations. We are told only that it is a level somewhere between the 1977 standards and the new source standards. Dev. Doc. 212 (App. 6275). We, however, cannot sustain these regulations without being able to reasonably discern the path taken by the Agency. See Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). It is impossible for this Court to determine the reasonableness of these 1983 limitations when a major element in the calculation — the “demonstrated wastewater flows” — is not made known by the Agency. Furthermore, plants are to achieve this undisclosed flow level by “segregation of contact process waters from noncontact waste-water, maximum wastewater recycle and reuse, elimination of once-through barometric condensers, control of leaks, [and] good housekeeping practices.” Dev. Doc. 209 (App. 6272). These are exactly the practices recommended for 1977 with only the addition of “maximum wastewater recycle and reuse.” Compare n. 14, supra. There is no evidence in the record that makes it possible for this Court to conclude that EPA exercised reasonable judgment in determining that application of these measures will achieve the hydraulic flow levels necessitated by the 1983 limitations. EPA cites us to no new developments in recycling wastewater or other production procedures that lead us to believe that water conservation measures sufficient to meet the BATEA hydraulic Flow levels will be available by 1983. In fact, the Development Document says that “[i]n general . , the plastics and synthetics industry considered in this survey is a mature industry, and there appears little potential for dramatic breakthroughs in the production technology.” Dev. Doc. 130 (App. 6194). For these reasons, the 1983 limitations are remanded to the Administrator for reconsideration in light of this opinion. 3. New Source Standards Flow levels used to establish new source standards of performance are explained as follows: “The wastewater flow basis for NSPS-BADT [New Source Performance Standards — Best Available Demonstrated Technology] is based on the lowest identified as to primary source flows associated with each product. The wastewater basis ranges from 0 to 50 percent of the BPCTCA basis and is product specific.” Dev. Doc. 215 (App. 6277). EPA contends that since the new source flows are achieved by at least one plant in each subcategory, no technological breakthrough in production methods or engineering techniques is necessitated and the technology is therefore “demonstrated” as required by § 306(a)(1). The record, however, does not identify the particular plants used, nor does it disclose their operating or technological characteristics. Without' these important guides, manufacturers seeking to build new plants could be at a loss to find ways to design and construct facilities that conform to the flows used to establish the standards of performance. Petitioners claim that this violates Congress’ command in § 304(c) of the Act that: The Administrator . . . shall issue . • . . information on the processes, procedures, or operating methods which result in the elimination or reduction of the discharge of pollutants to implement standards of performance under section 306 of this Act. Such information shall include technical and other data, including costs, as are available on alternative methods of elimination or reduction of the discharge of pollutants. In its brief, EPA contends: “It is not unreasonable to require petitioners to utilize their resources and abilities to achieve reduced hydraulic flows. The Agency must provide guidance, and this it has done. But it is not required to prepare a cookbook.” (Resp. Brief at 102.) Much of the guidance provided by the Agency, however, has been only vague references to better maintenance and avoidance of leaks and spills. See App. 6193-6195. The Development Document, in perhaps its most informative statement, recommends “judicious control of process steps using water for washing, scrubbing, and so on, by employing counter-current flow operations and by strict attention to housekeeping operations.” Dev. Doc. 109 (App. 6173). In our opinion, this information is not sufficiently detailed to provide the type of technological guidance EPA is required to give under § 304(c). A remand of these regulations is necessary to assure compliance with this statutory obligation. B. COD as a Pollutant Petitioners contend that EPA’s designation of chemical oxygen demand (COD) as a control parameter is arbitrary and capricious. Both BOD5 and COD measure the capacity of wastewater to remove oxygen from the receiving body of water COD measures the amount of oxygen removed by the chemical oxidation of biodegradable and non-biodegradable materials, while BOD measures only the amount of oxygen removed by the biological degradation of organic matter. Thus, biodegradable wastes are measured by both tests. Non-biodegradable materials, however, show up only in the COD test. Petitioners argue that these non-biodegradable materials are not harmful in any way to receiving streams and since the BOD5 test measures the biodegradable component of COD, there is no need for EPA to establish a COD parameter. While EPA admits that “the specific harm caused by the chemical components of COD is not yet known for this industry” (Resp. Brief at 105), it nonetheless feels that its action is justified in view of the statutory definition of “pollution.” This term is defined in § 502(19) of the Act, not in terms of harm to the environment, but as “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.” This definition satisfies us that EPA, in designating COD as a pollution parameter, acted in accordance with the law. C. 1977 and New Source COD Limits In all subcategories, COD limits are established for the 1977 effluent limitations guidelines and the new source standards of performance despite the fact that EPA does not require the application of any COD control technology. The COD limits established by EPA are set on the basis of a ratio of COD to the BOD5 limits. See Dev. Doc. 200, 215 (App. 6264, 6277). Because the properties measured by the COD and BOD parameters overlap, COD will be reduced by the technology designed to treat BOD. Although no separate COD removal treatment is mandated, EPA feels that COD limits are nevertheless needed for several reasons. First, violations will be more quickly detected since the COD test takes only 3 hours as compared to 5 days for the BOD5 test. Second, the use of COD as a pollution parameter will mean the collection of extensive data on COD levels, thereby furthering the Agency’s scientific research of pollution. Petitioners point out that EPA could have fulfilled these objectives by a requirement that plants simply monitor the COD levels in their wastewater. This Court agrees and, accordingly, sets aside the 1977 and New Source COD limits. It is unreasonable for EPA to establish an effluent limitation for a pollution parameter when the Agency’s technological model does not include treatment procedures for that pollutant. D. 1983 COD Limits The 1983 COD limits are based on the application of activated carbon absorption. For eight subcategories an effluent concentration of 130 mg/1 was set as the attainable level of reduction for BATEA. Demonstrated COD concentrations are used in the subcategories already achieving a level lower than 130 mg/1. Dev. Doc. 211 (App. 6274). Petitioners contend that EPA failed to substantiate its determination that this 130 mg/1 concentration is attainable across the board for all eight subcategories. EPA justifies this level of concentration on the basis of performance data from a pilot plant using activated carbon and the results presently obtained by a few exemplary plants. Id. Petitioners argue that carbon absorption does not meet the statutory criteria of “availability” throughout the industry as the pilot plant involved a single process for the making of only one product. In Tanners’ Council, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976) [No. 74-1740], this panel rejected a similar argument by the tannery industry and held that “in establishing these 1983 standards, the Agency may look to the best performer in the industry and even assess technologies that have not been applied as long as the record demonstrates that there is a reasonable basis to believe that the technology will be available by 1983.” Id. at 1195. The Development Document describes the results of carbon absorption treatment as follows: Although the effectiveness of activated carbon absorption has been well demonstrated for removing BOD and COD from the effluents of conventional municipal sewage treatment plants, its effectiveness for the removal of the complex chemical species found in the wastewater of this industry can be expected to be highly specific. Dev. Doc. 211 (App. 6274). This report goes on to say that: Evidence of the low absorption efficiency of activated carbon for a number of different chemical species is beginning to appear in the technical literature. However, the only way to determine if activated carbon absorption is an effective method for removing COD is to make direct determinations in the laboratory and in pilot plants. Id. It is apparent to this Court that the reasonableness of the COD limits set by EPA for 1983 cannot be reviewed at this time. The figure of 130 mg/1 is only a projection, and its accuracy cannot be determined until data from EPA’s ongoing research and testing of carbon absorption treatment has been obtained. But waiting until the scientific results are conclusive may be too late. As petitioners point out, “[i]t may take one or more years merely to design and test a treatment facility and even longer to actually build such a facility and put it in operation.” (Pet. Reply Brief, Nos. 74-1400, et a 1., at 37.) The technology designated by EPA should be implemented. Then, if the results are not up to EPA’s earlier projections, sections 304(b) and 301(d) place a duty upon the Administrator to review and revise these regulations. Any present inaccuracy in the limits can be corrected by the Agency prior to the implementation of these regulations in 1983. For these reasons, the 1983 COD limits are left in force for the present. We note, however, the availability of future judicial review should EPA not establish the achievability of these 1983 limits within a reasonable time prior to the time set for their implementation. See Tanners’ Council, Inc. v. Train, supra 1196. D. 1977 TSS Limits Total Suspended Solids (TSS) measures the amount of inorganic and organic materials suspended in the wastewater. If allowed to settle in the receiving water, these solids form a sludge deposit on the lake or river bed which destroys aquatic life. See Dev. Doc. 88-89 (App. 6152-6153). For 1977, the Agency uses a uniform effluent concentration of 30 mg/1 of TSS for all subcategories. Petitioners contend that this standard TSS level fails to take into account the differences in the treatability of wastewater for the different subcategories. The Administrator maintains that, while BOD treatments experience wide variations in removal efficiency, TSS removal is relatively uniform. This is borne out by the data from the exemplary plants observed by EPA. Dev. Doc. 81 (App. 6145). Finding that the Administrator’s position is supported by the record, this Court upholds EPA’s use of a 30 mg/1 effluent concentration level for calculating the 1977 TSS limits. E. 1983 and New Source TSS Limits For existing sources — 1983 stage and new sources, EPA uses an effluent concentration of 10 mg/1. This concentration is set on the basis of the application of mixed media filtration. Petitioners contend that EPA has failed to show that application of mixed media filtration will achieve 10 mg/1 in the plastics and synthetics industry. Although filtration has not been demonstrated in the plastics and synthetics industry, EPA justifies this 10 mg/1 figure by reference to the results achieved by this technology in municipal treatment systems and waste facilities used in the petroleum industry. EPA’s conclusion is that the results attained in these waste treatment operations are transferable to the plastics and synthetics industry since the raw waste loads, especially of the petroleum industry, are similar. The record, however, is devoid of any consideration by EPA of transferability and we are unable to judge the reasonableness of its conclusion. The Agency asks us to rely on its expertise. This Court, however, cannot decide such questions on' blind faith. See duPont v. Train [No. 74-1261], supra, at 1036. Because the Administrator has failed to establish that the technology necessitated by the new source TSS limits is presently “available,” the new source standards of performance are remanded to the Agency for further documentation on the transferability of the designated technology. A different standard of “availability” applies however to the 1983 limitations. They will not be put into effect for another seven years. EPA should, therefore, be given more latitude to make predictions and assumptions as to transferability. Cf. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 391-392 (1973), cert. denied 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Accordingly, the 1983 limitations are not disturbed by this Court; but, once again, EPA is reminded of its statutory duty to review them and make any appropriate changes. F. Variability Factors In establishing these effluent limitations guidelines and standards of performance, EPA took notice of the fact that even in the best treatment systems changes continually occur in the treatability of wastes. To account for this variability, the Administrator made a statistical analysis to determine day-to-day and month-to-month standard deviations. From this, daily and monthly variability factors were defined which, when multiplied by the long-term yearly average, determine the effluent limitations guidelines for each subcategory. The monthly variability factor results in an effluent limit that is exceeded 2 to 3 percent of the time for a plant attaining the long-term average, while the daily variability factor results in only a 0.0-0.5 percent violation. Dev. Doe. 203-207, 212-213, 215-217 (App. 6267-6271, 6275-6276, 6277-6279). Petitioners contest the reasonableness of this procedure. EPA, they contend, committed three serious errors. First, the calculation of the variability factors was based on effluent concentrations. The limitations and standards of performance are expressed, however, in pounds of pollutant per 1,000 pounds of product (derived by multiplying hydraulic flow by effluent concentration). In effect, the element of hydraulic flow has been removed from the variability calculations. Petitioners insist that this results in a lower variability factor than would have resulted had these computations been based on pounds of pollutant per 1,000 pounds of product. The Agency says that it chose to use effluent concentrations because more abundant data was available in these terms, and the difference in results between calculations based on effluent concentrations and those based on pounds of pollutant was “exceedingly small.” (Resp. Brief at 128.) While this Court finds that EPA has not been consistent in calculating the variability factors and the over-all limitations and standards, we do not feel that this inconsistency amounts to arbitrary and capricious behavior, especially taking into view the practical consideration of data availability. Second, petitioners argue that EPA’s use of a straight-line standard deviation method to determine the variability factors is incorrect since the data points are not normally distributed. EPA defends its use of the straight-line method by asserting that the underlying data deviated only slightly from a normal distribution pattern. This Court feels that the choice of statistical methods is a matter best left to the sound discretion of the Administrator. Petitioners would have this Court require the Agency to base the variability factors on “actual point data.” Included within this data would be points that EPA terms as “aberrations” — reporting errors or results achieved by an upset in the treatment facility caused by improper operation. (Resp. Brief at 131.) The purpose of these variability factors is to account for the routine fluctuations that occur in plant operation, not to allow for poor performance. For these reasons, we believe that the Administrator has not been arbitrary or unreasonable in establishing these variability factors on the basis of a standard deviation assumption. Third, petitioners contend that it is arbitrary for EPA to fail to make provision for “excursions” when it realizes to a certainty that even a proper treatment facility will be in violation on a few occasions. EPA denies that excursions are necessary, contending that there is always a theoretical chance that a plant achieving the limitations on a long-term basis will exceed the monthly and daily limits. Nonetheless, this Court is of the opinion that EPA should provide an excursion provision that will offset the expected 2 to 3 percent and .5 percent violations. Plant owners should not be subject to sanctions when they are operating a proper treatment facility. Such excursions are provided for by the ambient air standards established under the Clean Air Act, 40 C.F.R. §§ 50.4-50.10, and this Court sees no reason why appropriate excursion provisions should not be incorporated in these water pollution regulations. CONCLUSION The effluent limitations guidelines and standards of performance for the Plastics and Synthetics Industry Point Source Category are remanded to the Administrator for reconsideration in light of the reasons stated in this opinion. . 86 Stat. 816, 33 U.S.C. § 1251 et seq. (Supp. 1975). . See Resp. Brief at 43. Regulations covering the remaining subcategories will be published in the near future. Subcategorization of the industry was determined by analyzing the raw materials, products, manufacturing processes, raw waste characteristics and treatability and attainable effluent concentrations of its different segments. Dev. Doc. 12 (App. 6077). . BOD5, COD, and TSS are the critical pollution parameters. BOD, biological oxygen demand, indicates the oxygen consuming capacity of organic matter in the wastewater. BOD5 measures this demand over a 5-day period. COD, chemical oxygen demand, provides a measure of the oxygen needed to oxidize the materials present in the wastewater effluent. Unlike BOD, COD does not differentiate between biodegradable and non-biodegradable matter. TSS, total suspended solids, measures both the organic and the inorganic materials suspended in the water. Other constituents, such as zinc and chromium, are specific to individual subcategories. See Dev. Doc. 3. . These 13 subcategories are as follows: Sub-part A — Polyvinyl Chloride; Subpart B — Polyvinyl Acetate; Subpart C — Polystyrene; Sub-part D — Polypropylene; Subpart E — Polyethylene; Subpart F — Cellophane; Subpart G — • Rayon; Subpart H — Acrylonitrile — Butadiene — Styrene (ABS) and Styrene Acrylonitrile (SAN) Resin Copolymers; Subpart I— Polyster; Subpart J — Nylon 66; Subpart K— Nylon 6; Subpart L — Cellulose Acetate; and Subpart M — Acrylics. . These standards are also expressed in metric units. . For existing sources — 1977 stage, the designated technology is “best practicable control technology currently available” (BPCTCA). § 301(b)(1)(A). For existing sources — 1983 stage, it is “best available technology economically achievable (BATEA). § 301(b)(2)(A). For new sources, it is “best available demonstrated control technology” (BADCT). § 306(a)(1). . Section VIII of the Development Document speaks to the cost associated with the requirements of the regulations App. 6197-6262. This discussion is augmented by two documents— the “Initial Economic Impact Analysis of Water Pollution Control Costs upon the Synthetic Polymer Industry” (App. 6310-6473) and the “Economic Analysis of Proposed Effluent Guidelines” (App. 4710-4780). Petitioners in their reply brief, Nos. 74-1400, et al. at 55, complain that EPA introduced the “Initial Economic Impact Analysis” into the record 29 days after the opening briefs were filed. EPA contends that this economic impact study is a proper part of the record of this proceeding since it was considered by the Agency during rule-making. (Resp. Brief at 66.) This document was mentioned in neither the Development Document nor the preambles to the proposed and final regulations. Consequently, the plastics and synthetics industry had no opportunity to comment on the document’s findings. For these reasons, the “Initial Economic Impact Analysis” cannot be considered a part of the record to sustain these regulations. See generally, 5 U.S.C. § 553(c) (1967). However, because these regulations are being set aside for technical errors discussed infra, EPA on remand will have the opportunity to make this study a part of the record. . The Development Document states that further subcategorization of the industry along the lines of plant size was considered but determined to be unwarranted. Dev. Doc. 80 (App. 6144). . The Third Circuit was of a similar view in the American Iron and Steel Institute case, supra, at 1053: “Given our standard of review of agency action and the relative weights we believe Congress intended the Administrator to assign as between the need for pollution abatement and costs, we conclude that this assessment . . . was neither arbitrary nor capricious.” . See n. 6, supra. EPA’s methodology in establishing these regulations has been discussed supra. To arrive at a limitation expressed in terms of pounds of pollutant per 1,000 pounds of product produced, EPA had to select for each subcategory a uniform hydraulic flow representing the amount of water used by a “typical” plant to manufacture 1,000 pounds of product. Had these regulations been expressed in terms of an effluent concentration (milligrams of pollutant per liter of water), EPA feels that the manufacturers could have evaded the regulatory intent by simply diluting the waste-water. . These figures were taken from Exhibit A of Respondent’s Brief. . See the Senate Consideration of the Report of the Conference Committee where it was observed that, “ ‘[b]est practicable’ can be interpreted as the equivalent of secondary treatment for industry. Leg.Hist. 170. Compare the 1977 standard in § 304(b)(1)(B) (“control measures and practices”) with the 1983 standard in § 304(b)(2)(B) (“best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods and other alternatives”) and the new source standards of performance in § 306(a)(1) (“control technology, processes, operating methods, or other alternatives”). . See § 304(b)(1) (“control measures and practices”) (emphasis added). With new sources, Congress realized that industry could build in environmental controls and therefore required the Administrator “to establish standards of performance which reflect the levels of control achievable through improved production processes, and of process technique, etc. . . .” Conference Report, Leg.Hist. 311. . These include segregation of contact process waters from noncontact wastewater, elimination of once-through barometric condensers, control of leaks, and good housekeeping practices. Dev. Doc. 199 (App. 6263). . See n. 6, supra. . In Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188 (4th Cir. 19 — ), Nos. 74-1740, et ah, this panel upheld the 1983 limitations in the Leather Tanning and Finishing Industry Point Source Category. There, the 1983 limitations were based in part on technology still in the developmental stage/ See id. at 1195. The figures issued by EPA as the achievable pollution limits were therefore highly conjectural. Nonetheless, this Court upheld those regulations because of the need for lead time in implementing the designated technology and the statutory requirement of continuing Agency review and revision of the regulations prior to 1983. Id. at 1195. Here, the problem is not one involving results that can be expected from new and untried technology, but basic errors in methodology and administrative procedure. See id. at 1195-1196. . See n. 4, supra. . “The COD test consists of forced oxidation, requiring the presence of a strong chemical oxidant and a catalyst and boiling temperatures.” Pet. Brief, Nos. 74-1504, et ah, at 41-42, citing EPA Manual 16020-07/71. . The BOD/COD ratios used by EPA are constants. See table 36, Dev. Doc. 201 (App. 6265). Petitioners contend that once wastewater is treated for BOD, the ratio of BOD/COD does not remain the same. This was noted by EPA’s contractor in the Development Document: “biochemically treated wastewater will have proportionally much higher ratios of COD to BOD than entered the waste treatment plant.” Dev. Doc. 210 (App. 6273). This means that a plant achieving the required BOD removal could be in violation of its COD level if the BOD/COD ratio of its wastewater goes above the figure used by the Agency. . See Tanners’ Council, Inc. v. Train, supra, n.17, and accompanying text. . Mixed media filtration involves passing wastewater over a filter composed of a layer of coarse material and one or more layers of finer material. Pet. Brief, Nos. 74-1400, et al, at 63 n.l. . Petitioners point to possible problems suggesting that mixed media filtration cannot be so adequately adapted to the plastics and synthetics industry. See Pet. Brief, Nos. 74-1400, et al., at 65. . Petitioners give two examples in their brief. A monthly variability factor for Polyvinyl Chloride computed on the basis of pounds of pollutant would be 1.77. The EPA.variability factor is 1.6. For Nylon 66, the variability factor would be 2.35 instead of 2.2. Pet. Brief, Nos. 74-1504, et al, at 67. . Data is said to be normally distributed if the observed values, when plotted on ordinary graph paper, form a bell-shaped curve. The data points form a straight line, however, on probability graph paper. Pet. Reply Brief, Nos. 74-1400, et at, at 41.

Tanners' Council of America, Inc. v. Train

RIVES, Circuit Judge: These actions are brought by Tanners’ Council of America, Inc., a trade association for the leather tanning and finishing industry, to set aside regulations establishing “effluent limitations guidelines” and “standards of performance” for the “Leather Tanning and Finishing Industry Point Source Category.” These regulations were issued by the Administrator of the Environmental Protection Agency (hereinafter “the Administrator”) on April 9, 1974 (39 Fed. Reg. 12958, et seq., 40 C.F.R. Part 425), under the authority of sections 301, 304, 306, 307, 316 and 402 of the Federal Water Pollution Control Act, as amended (hereinafter “the Act”). Under § 509(b)(1), review of these regulations lies in the United States Court of Appeals, du Pont v. Train, 528 F.2d 1136 (4th Cir. 1976) [filed 1975]. The “standards of performance” established by these regulations set pollution limits which must be achieved by “new sources,” defined in the statute as a source of pollution discharge, “the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source.” § 306(a)(2). “Effluent limitations guidelines” prescribe the amount of pollution discharge permitted by existing plants and are divided into two phases — a 1977 stage and a 1983 stage. In promulgating the regulations, the EPA divided the leather tanning and finishing industry into six major subcategories, derived principally from similarities in processes and waste loads. For each subcategory, the 1977 and new source regulations set a single-number effluent limitation for five pollution parameters — 5-day biological oxygen demand (BOD5), total suspended solids (TSS), chrome, oil and grease, and pH. For existing sources, 1983 stage, specific limitations were set for these same five pollution parameters and additionally for sulfide, total kjeldahl nitrogen (TKN), and fecal coliform. Petitioner first challenges these regulations on the ground that they are not in accord with the Act. This contention is founded on petitioner’s view that §§ 301 and 304 of the Act do not authorize the Administrator to set effluent limitations (as opposed to guidelines that are merely informational to the permit writers). This Court rejected this interpretation in du Pont v. Train, 541 F.2d 1018 (4th Cir. 1976), and a re-examination of this question is unnecessary here. Petitioner’s second line of attack is that these regulations are arbitrary and capricious due to alleged technical errors made by the Administrator in the rule-making process. STANDARDS OF REVIEW The applicable standard of review has been stated by this Court in du Pont v. Train, supra, at 1026. Briefly stated, the authority of this Court to set aside agency action is limited by the strictures of The Administrative Procedure Act, 5 U.S.C. § 706(2)(A). To be judicially annulled, agency action must be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” While this Court cannot substitute its judgment for that of the agency, the agency must fully explicate its course of inquiry, its analysis, and its reasoning. Furthermore, grounds relied upon by the Agency must be clearly disclosed in and sustained by the record. See cases cited in du Pont v. Train, supra, at 1026. On these terms, we now review the specific regulations that are challenged. 1977 LIMITATIONS The statutory specification for effluent limitations for existing sources 1977 stage is the application of “the best practical control technology currently available (BPCTCA).” § 301(b)(1)(A). In establishing BPCTCA standards, § 304(b)(1)(B) of the Act requires the Administrator to consider the following: (1) the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application; (2) the age of equipment and facilities involved; (3) the processes employed; (4) the engineering aspects of application .of various types of control techniques; (5) process changes; (6) non-water quality environmental impact (including energy requirements). Furthermore, BPCTCA effluent standards are to rely primarily on end-of-manufacturing treatment facilities but may include control technologies within the process if these measures are considered normal practice within the industry. Normally, EPA should establish BPCTCA standards on the basis of the average performance of the best existing plants in the subeategory. The Agency may, however, look to the results achieved by plants in other industries if it finds that the level of achievement in a subcategory is uniformly inadequate. This transfer of technology is permissible only “if he [the Administrator] determines the technology to achieve those higher levels can be practicably applied.” S.Rep.No.92-414, 92d Cong., 1st Sess. (1971), A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. 1468 (Jan. 1973) [hereinafter cited as Leg. Hist.]. See also Senate Consideration of the Report of the Conference Committee, October 4, 1972, Leg.Hist. 169-170. The Eighth Circuit in CPC International, Inc. v. Train, 515 F.2d 1032, 1048 (8th Cir. 1975), has held that before EPA can make a determination that a technology can be practicably applied, the Agency must: (1) show that the transfer technology is available outside the industry; (2) determine that the technology is transferable to the industry; (3) make a reasonable prediction that the technology if used in the industry will be capable of removing the increment required by the effluent standards. In establishing the 1977 limitations, EPA concluded that there were no exemplary plants in the tannery industry, not because the industry had failed to employ primary and secondary treatment facilities, but because the Administrator was dissatisfied with the degree of removal obtained. See Dev.Doc. 129. Due to this finding, BPCTCA standards were not set on the basis of the average result of the best tanneries but on the transfer of technology and performance data from the meat-packing industry. Comments on the proposed regulations brought out the dissimilarities in the raw waste loads between the meatpacking and tanning industries. Reflecting on these comments, the Agency recognized that the more fibrous, insoluble components of tannery wastes made tannery wastewater less susceptible to biological treatment. Consequently, the Agency revised the 1977 standards to permit a higher level of effluent concentration. 39 Fed.Reg. 12958 (April 9, 1974). Petitioner contends that EPA erred in determining that existing waste treatment by all tanneries was “uniformly inadequate” and, alternatively, that, even if there were no exemplary plants in the tanning industry, EPA was in error to apply the performance data from the meat-packing industry with its vastly dissimilar wastes. The tanners’ contention that exemplary plants do exist in the tannery industry was supported by the New York State Department of Environmental Conservation, Cert.Rec. 5364, and the Effluent Standards and Water Quality Information Advisory Committee, a study group established under § 515(a)(1) of the Act. Cert. Rec. 5850. These groups contended that several tannery plants achieve the lowest effluent levels that the wastewater from the particular processes and products will allow. EPA maintains that these existing treatment facilities in the industry are “uniformly inadequate” because of poor management and operating techniques. Dev.Doc. 93. This Court feels that the test of adequacy is almost entirely judgmental, and, therefore, the decision to establish 1977 standards on either the average of exemplary plants in the industry or a transfer of technology is best left in the hands of the Agency. Whatever methodological route is followed, the Administrator must nevertheless establish that the levels are achievable by the affected plants. Here, the contractor found that “[t]he tannery industry does not achieve this level of effluent reduction.” Dev.Doc. 129. A few plants are presently capable of meeting the limitations for some, but not all, of the pollution parameters: “One plant in subcategory 1 (383) and one plant in subcategory 3 (24) meet the BOD limitations in kg/1,000 kg (16/1,000 lb.) but not TSS limits. Two plants in subcategory 3 (47 and 179) meet the TSS limitations and almost achieve the BOD limitations.” Dev.Doc. 129. EPA contends that by “conscientious adherence to well-known operational and maintenance procedures” tanneries can achieve the consistency of results needed to meet these reduction levels. Dev.Doc. 93. There is no evidence, however, in the record that would reveal the reasonableness of this conclusion. To uphold these regulations, this Court would have to trust completely EPA’s conclusions. The record, however, implies that these conclusions are the product of guesswork and not of reasoned decision-making. When EPA became convinced of the dissimilarities in the wastes of the tannery and meat-packing industries, it arbitrarily increased the pollution levels transferred from the meat-packing industry, rather than use waste reduction levels actually demonstrated in the tannery industry or a comparable industry. No scientific data or other demonstrative evidence was given to substantiate these final effluent levels. EPA’s only justification for these higher levels was that they reflected “a more practicable effluent concentration.” 39 Fed. Reg. 12958 (April 9, 1974). The regulations are, therefore, remanded to the Administrator to establish by evidence in the record that tanneries can achieve the levels of reduction required by the 1977 limits by use of the designated technology. Petitioner also contends that EPA failed to take temperature into account in formulating its 1977 effluent limitations guidelines. The tanners argue that an allowance for temperature should have been made since cold weather slows down the biodegradability of the wastes in the aerobic and anaerobic lagoons. There is the additional problem of higher waste loads in winter since hides contain more hair in winter than in summer. Performance data from operating plants reflects a seasonal variability in the effluent concentrations of the treated wastes. Cert.Rec. 5696-5701. The Agency’s response to this problem has been rather unsatisfactory: “Temperature impacts have been significantly reduced through increases in the proposed limitations along with the variance for small and medium sized tanneries. Therefore, the revised limitations are technically and economically achievable through the application of best practicable control technology without a temperature variance.” 39 Fed.Reg. 12958 (April 9, 1974); 40 C.F.R. Part 425. On remand, EPA should reconsider its decision not to make allowance for temperature in light of the strong evidence in the record that reduced removal efficiency occurs during cold weather. Petitioner has also challenged the regulations on the ground that tanneries applying even the most sophisticated pollution technology cannot meet the 2 mg/1 chromium limitation or the stringent standard for oil and grease. Because the 1977 standards are being remanded to the Administrator to substantiate their achievability, we see no reason to decide these questions at the present time. NEW SOURCE STANDARDS Section 306(a)(1) defines a new source standard of performance as “a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.” For the Leather Tanning and Finishing Point Source, EPA’s new source standards are identical to those for existing plants, 1977 stage. The Development Document explains this result as follows: “Although, better process control and more efficient tannery operations may result for new facilities, the actual raw waste load in terms of kilograms (pounds) per thousand kilograms (pounds) of hide is not expected to change substantially. Treatability of the waste is, also, not likely to differ significantly from that existing for present facilities.” Dev.Doc. 137. Because these new source standards are derivative and have not been independently established, their validity is tied to that of the 1977 regulations. Therefore, in view of our disposition of the 1977 regulations, the new source standards of performance are similarly set aside and remanded to the Administrator. 1988 LIMITATIONS Section 301(b)(2)(A) of the Act provides that the effluent limitations for existing sources to be employed by July 1, 1983, shall require application of “the best available technology economically achievable (BATEA).” The tanners contend that EPA ignored the statutory requirement that the technology be “available.” Availability, they contend, means that the technology be “demonstrated by at least pilot plant performance.” (Petitioner’s Brief at 81.) The legislative history, however, does not bear out petitioner’s position that the Administrator is confined to treatment technology presently in use: “The distinction between ‘best practicable’ and ‘best available’ is intended to reflect the need to press toward increasingly higher levels of control in six-year stages. Through the research and development of new processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, it is anticipated that it should be possible, taking into account the cost of controls, to achieve by 1983 levels of control which approach and achieve the elimination of the discharge of pollutants.” Leg.Hist. 170. This Court also finds significant the difference in language found in the statute. Section 301(b)(1)(A) defines the 1977 standards in terms of technology that is “currently available.” In § 306(a)(1), the Administrator is directed to establish new source standards on the basis of “the application of the best available demonstrated control technology.” While the terms “currently” and “demonstrated” in these sections imply that availability for purposes of the 1977 and new source regulations means technology presently in use, no such term is found in § 301(b)(2)(A). Thus, in establishing these 1983 standards, the Agency may look to the best performer in the industry and even assess technologies that have not been applied as long as the record demonstrates that there is a reasonable basis to believe that the technology will be available by 1983. Like the 1977 standards, the 1983 limitations for the leather tanning and finishing industry were based on waste removal efficiencies achieved by other industrial treatment operations. Dev.Doc. 134. The controls designated as BATEA are essentially the 1977 technology with the addition of tertiary treatments. The Development Document, in its assessment of the 1983 limits concluded: “best available control technology economically achievable appears achievable considering the developmental work being done on sulfide oxidation and nitrification-denitrification. There are several technical questions which need to be resolved prior to initiation of full-scale nitrification-denitrification facilities on a tannery waste. However, it is deemed that such questions can be answered by on-going research in other areas and by investigations initiated prior to 1983. To date no pilot work has been reported for nitrification of tannery wastes, hence, studies will be required to confirm design parameters required to implement an efficiently designed and operating facility.” Dev.Doc. 135. We recognize that the Act does put the Administrator in somewhat of a dilemma in promulgating 1983 limitations. While Congress intended that the 1983 limitations mandate an advance in pollution technology, it also required that these regulations be published within one year of the passage of the Act. § 304(b); see also National Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 710-714 (1974). At present, the 1983 limitations seem premature, but sections 304(b) and 301(d) place a duty on the Administrator to revise these regulations periodically. Although the single-number limitations EPA believes to be achievable by the application of BATEA are only tentative figures, the Administrator feels that these limitations should be defined now in order to give industry the maximum amount of lead time in which to implement the technology. (Respondent’s Brief at 83-84.) Given this need for technological implementation and the statutory requirement of continuing Agency review of these regulations, we believe no useful purpose would be served by a remand of these effluent limitations guidelines to EPA for reconsideration. This Court concurs in the conclusion of the Third Circuit in American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1075 (3d Cir. 1975), that in reviewing the 1983 regulations “the Act contemplates a period of a few years after which the accuracy of the Administrator’s evaluations and projections can be reviewed in the light of actual experience.” What is a reasonable belief today that these BATEA limitations can be achieved by 1983 would, however, not necessarily be a reasonable belief in 1981. Companies must make financial commitments and place orders for pollution equipment several years in advance of the 1983 deadline. When such time approaches, these 1983 regulations will have to be set aside unless EPA has more adequately demonstrated that the designated technology is effective in abating tannery wastes and is capable of achieving the 1983 reduction levels. Although application for judicial review of these water pollution regulations must generally be made within ninety days after the date of their promulgation, an exception has been provided for cases where the application is based solely on grounds which arose after the ninetieth day. We think that further review of these 1983 regulations is obtainable under this provision since the reviewing court will be called upon to reassess the reasonableness of these regulations in light of the presence or absence of pollution data collected by EPA, including possible advances in equipment and process technology, taking place more than ninety days after the regulations are promulgated. CONCLUSION The effluent limitations guidelines for 1977 and the new source standards of performance are set aside and remanded to the Administrator for reconsideration in light of this opinion. The effluent limitations guidelines for 1983 are left in force, but the Administrator is reminded of his statutory obligation to revise these limitations and guidelines in light of the findings of his on-going research and review. . 33 U.S.C. § 1251, et seq. (Supp.1975). . For a discussion of the statutory authority of the Administrator to issue “effluent limitations guidelines,” see du Pont v. Train, 541 F.2d 1018, at 1026 (4th Cir. 1976) [filed 1975]. . These subcategories are: (1) hair pulp unhairing with chrome tanning and finishing, (2) hair save unhairing with chrome tanning and finishing, (3) unhairing with vegetable and alum tanning and finishing, (4) finishing of tanned hides, (5) vegetable or chrome tanning of unhaired hides, (6) unhairing with chrome tanning and no finishing. . Biological oxygen demand (BOD) is a measure of the oxygen consuming capabilities of the organic matter in the wastewater. BOD5 is BOD measured over a five-day period. . Total suspended solids (TSS) are particles of organic and inorganic matter suspended in the wastewater. . pH is a logarithmic expression of the concentration of hydrogen ions. At a pH of 7, the hydrogen and hydroxyl ion concentrations are essentially equal and the water is neutral. A pH value below 7 indicates acidity, a higher value indicates alkalinity. . Total kjeldahl nitrogen (TKN) is ammonia nitrogen plus the organic nitrogen content in wastewater. TKN indicates the major nitrogen-impact upon the waste treatment plant or receiving stream. . Fecal coliforms are bacteriae originating in the intestinal tract of warm-blooded animals. The presence of fecal coliforms in wastewater has a high correlation with increased numbers of both pathogenic viruses and bacteriae. An example of these is Salmonella. . Compare the 1977 standard in § 304(b)(1)(B) [“control measures and practices”] with the 1983 standard in § 304(b)(2)(B) [“best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods and other alternatives”] and the new source standards of performance in § 306(a)(1) [“control technology, processes, operating methods, or other alternatives”]. See also “Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Leather Tanning and Finishing Point Source Category” [hereinafter cited as Dev.Doc.] 125 (1974). . Although the CPC International case was concerned with new sources and the requirement of § 306 that the standards reflect the application of “the best available demonstrated control technology,” the same reasoning applies to the 1977 limitations. Unless the required levels of reduction can be met by existing plants, the designated technology cannot be said to be “currently available.” See § 301(b)(1)(A). . These treatment steps are: (1) preliminary screening, (2) equalization and primary sedimentation, (3) secondary biological treatment, and (4) chrome recycle. See Dev.Doc. 128. . Compare the Final Development Document (Cert.Rec. 5998) with the Initial Development Document (Cert.Rec. 5620). In the proposed regulations, the limits were: . Since publication of these regulations, EPA has accumulated data from treatment plants which the Administrator in his brief contends confirms his assessment of the 1977 standards. These are found at appendices C, D, and E to respondent’s brief and are subject to a motion to strike by petitioner. It is a well-settled principle of administrative law that agency action cannot be sustained on the basis of information not relied upon by the Administrator and disclosed in the record. After-the-fact rationalizations will never suffice. See discussion in du Pont v. Train, supra note 1 at 1026, and cases cited therein. EPA’s reliance upon Amoco Oil v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722 (1974) is unfounded. In that case, the court admitted into the record, after issuance of the regulations, the testimony of the presidents of Ford and General Motors before a Senate subcommittee. The court justified the admission on the grounds that the matter was public testimony given to a governmental body and there was reconsideration by EPA in light of the statements. Neither of these factors is present in our case. Nor is this information uncontested evidence supplied by the companies themselves as in American Iron and Steel Institute v. EPA, 526 F.2d 1027, 1055 n. 61 (3d Cir. 1975). On remand, EPA may rely on the information contained in these appendices if introduced into the record. . The Seventh Circuit was presented with a similar argument over seasonal and temperature variability by the meat-packing and slaughterhouse industry in American Meat Institute v. EPA, 526 F.2d 442 (7th Cir. 1975). There, the court upheld the Administrator’s conclusion that the effect of climate did not warrant a temperature allowance on the basis of performance data in the record demonstrating that the 1977 standards were being met year round by some plants in the industry. Id. at 455. Nowhere in the record of this case is there reference to a waste treatment facility in the leather tanning and finishing industry or a comparable industry where the required levels of reduction are met throughout the year. . Wastewater is generally treated in sequential stages. Primary treatment involves the removal of readily settleable solids and other measures preparatory to biological treatment. In secondary treatment, wastes are consumed by bacteria that feed upon the organic matter in the wastewater and suspended solids are given time to settle out. Tertiary treatment involves advanced control measures; in this case, sulfide oxidation, nitrification and denitrification, and mixed-media filtration. See Dev. Doc. at i. . Section 304(b) provides that § 304 guidelines be revised, if appropriate, at least annually, and § 301(d) has a similar requirement for § 301 limitations at five-year time intervals. Since the Administrator asserts that these regulations are “effluent limitations guidelines” satisfying both § 301 and § 304, see n. 1, supra, this Court feels that an annual revision is appropriate.