COWEN, Senior Judge.
This case involves the interpretation of Public Law 89-298
On October 31, 1974, the Director of the Enforcement Division of Region V of EPA, pursuant to section 402 of the FWPCA,
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.
On June 9, 1976, the General Counsel of EPA decided:
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."
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.
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(l)(4)
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 NIPSCO do contemplate that prior to judicial review of a permit, the Administrator must have an opportunity to review the contested issues concerning the permit.
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:
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
The Public Works Committee of each house reported out a bill authorizing the development of Burns Waterway Harbor.
Both committee reports indicated that they had no objection to this provision.
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 Ropchan, President of the Fort Wayne Chapter of the Izaak Walton League. He said:
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.
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,"
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.
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 in 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:
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
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:
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.
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.
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.
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
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  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.
40 C.F.R. § 125.36(n)(3) reads in pertinent part:
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].
The committee report on this provision explains it in the following manner:
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  U. S. Code Cong. and Adm. News 3668, 3710 (Senate bill was passed in lieu of House bill).
Senate Hearings, supra note 22, at 345 (Resp. App. at 103).
FWPCA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (Supp. V 1975).
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  U. S. Code Cong. & Adm. News, 3668, 3671. (Senate bill passed in lieu of House bill).