LUMBARD, Circuit Judge:
This is a consolidated original petition for review and an appeal, the petition challenging the issuance of a National Pollutant Discharge Elimination System (NPDES) permit by the Environmental Protection Agency (EPA), and the appeal questioning the dismissal on jurisdictional grounds by Judge Dudley B. Bonsal of a similar challenge initiated in the District Court for the Southern District of New York. 394 F.Supp. 211 (S.D.N.Y.1975). The disputed action is the issuance of an NPDES permit to the intervenors by the Administrator of EPA pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972 ("Water Act"), 33 U.S.C. § 1342. The permit authorizes sewage disposal into Brown Brook in the Town of Somers in Westchester County, New York. For reasons given below we affirm the district court's dismissal on jurisdictional grounds and deny the petition for review as untimely.
The appellants-petitioners, who were plaintiffs below, are: Sun Enterprises, Ltd. (Sun), a corporation which owns over 500 acres of land downstream of the discharge point in the Town of Somers, Westchester County; Southern New York Fish and Game Association, Inc., a non-profit fishing and hunting society in the area; Lyman E. Kipp, the president of Sun who lives on the Sun property; Richard E. Homan, a tenant of Sun and an officer of Southern New York Fish and Game Association; No Bottom Marsh, the marsh through which the brook which receives the discharge flows; and Brown Brook, which is classified by New York State as a trout stream on Sun's property. The appellees, defendants below are: Russell E. Train, Administrator of EPA, also the respondent in this proceeding; Gerald Hansler, Regional Administrator of EPA for Region II (which includes New York); and Rogers Morton, former Secretary of the Department of the Interior (Interior). The intervenors, defendants below, are Heritage Hills of Westchester (HHW), a partnership, its principals and related corporations all of whom are engaged in the construction of a condominium housing project, in Somers, which will consist of 3,100 units and extensive recreational facilities upstream of the Sun property.
The facts which gave rise to this litigation are as follows. On July 12, 1973 HHW applied to the New York State Department of Environmental Conservation (DEC) for permission to relocate approximately 650 feet of Brown Brook in order to construct a sewage treatment plant for the housing project. By the terms of its zoning special exception permit, HHW was obliged to provide its own sewage system. At the relocation hearings appellant Kipp presented expert testimony on what he contended would be the adverse effects of sewage discharge at the proposed site on the brook, the marsh, and on an aquifer (an underground drinking water supply) located on Sun's property. Nevertheless, on January 17, 1974, the application for stream relocation was approved by the Commissioner of DEC.
In December, 1973, HHW applied to the EPA for a NPDES permit (33 U.S.C. § 1251 et seq.). Pursuant to § 401 of the Water Act (33 U.S.C. § 1341), EPA referred the
In May, 1974 Kipp wrote to both the DEC
During this period in the spring of 1974 EPA sent a copy of the proposed permit to the appropriate office of Interior in accordance with EPA's duty to consult with Interior under the Fish and Wildlife Coordination Act (hereinafter "Coordination Act"), 16 U.S.C. § 661 et seq.
After receiving DEC certification of the appropriate discharge limits, the EPA issued an NPDES permit to HHW on July 12, 1974. The permit contains limits on the biochemical oxygen demand, suspended solids, fecal coliform, and pH. Certain state restrictions which are more stringent than the federal requirements are included in the permit. Moreover, the chlorination necessary to achieve the required fecal coliform level is to be controlled by a chlorine limitation for the effluent. Limits on oxygenation, ammonia, phosphorus and settleable solids are all provided for in the permit. Self-monitoring, record keeping, reporting conditions, and structural fail-safe device requirements are also included in the permit. No examination of the adequacy of these various terms is called for here since we have determined that the merits of appellants-petitioners' challenge to the permit are not properly presented by this proceeding.
DEC wrote to Kipp both before and after the permit was issued to say that it would not accede to Kipp's request that it hear further testimony by his experts.
On January 8, 1975 appellants filed an action in the District Court for the Southern District which, in pertinent part,
On May 9, 1975 Judge Bonsal dismissed the complaint as to the federal defendants. He held that those claims asserted solely against the Administrator of the EPA challenged the Administrator's actions in issuing the permit and are only reviewable in the court of appeals pursuant to § 509(b)(1) of the Water Act, 33 U.S.C. § 1369(b)(1).
The appeal from this judgment has been consolidated, as noted above, with a § 509(b)(1) petition for review of the permit's issuance which was filed in this court on July 31, 1975. A motion to dismiss the petition as untimely was denied without prejudice to its renewal.
Intervenors challenge the entry of final judgment by the district court pursuant to Rule 54(b), Fed.R.Civ.P. They argue that the appeal should be dismissed as interlocutory since the grant of final judgment involved no exercise of discretion by the district court. See Schwartz v. General Transatlantique, 405 F.2d 270 (2d Cir. 1968). In the alternative they urge affirmance of the district court and dismissal of the petition for review. We find that the entry of final judgment was proper and logical since the dismissal of all claims against the federal defendants contained an implicit finding that there was no reason for delay.
In dismissing the complaint as to the EPA, Judge Bonsal held, as noted above,
Appellants argue that jurisdiction existed in the district court under (1) the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., (2) general federal question jurisdiction, 28 U.S.C. § 1331, (3) mandamus jurisdiction, 28 U.S.C. § 1361 and (4) § 505 of the Water Act, 33 U.S.C. § 1365. It is their position that the alleged due process, wetlands regulations, and Coordination Act violations give rise to causes of action which are separate and distinct from the Water Act and are properly sued upon in the district court under the APA or general federal question jurisdiction. They argue that the savings clause of § 505 of the Water Act,
Appellants further argue that the violations alleged against appellees constitute failures to perform non-discretionary duties. As such, it is urged, redress of the violations is properly sought in the district court under 28 U.S.C. § 1361, mandamus jurisdiction, and § 505(a)(2)
The appellees respond, and we agree, that there is a strong presumption against the availability of simultaneous review in both the district court and the court of appeals. Review of the Administrator's actions in issuing or denying a permit must, by the explicit terms of § 509, be sought in the court of appeals whose jurisdiction is, absent extraordinary conditions, exclusive.
Section 505(a)(1) of the Water Act provides jurisdiction in the district court where there is an alleged violation of an effluent standard or limitation or an alleged violation of an order of the Administrator or a State with respect to such a standard or limitation. As the district court's thorough analysis points up, the only effluent limitations in question in this suit are those set by the Administrator. It is clear that he is not, nor could he logically be, in violation of those limits. To the
Nor do § 505(a)(2) or 28 U.S.C. § 1361 justify the district court suit. It is not the failure of the Administrator to perform a non-discretionary duty which is at issue; rather it is the manner in which those duties were performed which appellants are challenging. Review of the actions of the Administrator in issuing or denying a permit must be sought, as we have held, under § 509 in the court of appeals.
If, as we have found, § 505 provides no jurisdictional basis for appellants' suit in the district court, then the savings clause of § 505 (33 U.S.C. § 1365(e)) cannot afford them any relief. Section 509 contains no such savings clause. Thus the alternate bases for jurisdiction urged by appellants are of no avail. In any case, the APA, 5 U.S.C. § 704, applies, by its own terms, only where "there is no other adequate remedy in a court . . . ." The availability of § 509 review precludes the application of 5 U.S.C. § 704. See Oljato, supra, 515 F.2d at 663; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973).
In denying appellants' motion for summary judgment against the federal defendants for violation of the Coordination Act, the district court observed that the EPA had in fact sent Interior "the public notice, fact, sheet, and tentative determinations" on intervenor's application.
Appellants argue that EPA failed to send adequate information to alert Interior to the true nature of intervenor's application. However, such a claim goes to the manner in which the Administrator performed, not to the failure to perform. The claim must, as the district court held, be reviewed in a § 509 petition to the court of appeals.
As to Interior, the district court expressed uncertainty as to whether there existed a private right of action under the Coordination Act. After distinguishing many of the cases relied upon by appellants as involving failures by other agencies either to consult with Interior or adequately to consider Interior's recommendation (see, e. g., Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972)), the court went on to indicate that it could not find Interior's failure to comment to be an
Following this analysis, the district court granted summary judgment in favor of appellees dismissing the claim for relief under the Coordination Act. Appellants argue that in granting summary judgment to appellees, the district court must have found jurisdiction to exist for this claim, at least as to Interior. However, it is unclear from the district court's grant of summary judgment "dismissing" the complaint that in fact jurisdiction was ever found to exist.
Certainly it would be an unsatisfactory result if the otherwise exclusive mode of review of an NPDES permit's issuance, a § 509 petition to the court of appeals, could be circumvented by an action in the district court against Interior. If the failure of Interior to respond substantively to the EPA is reviewable,
Although such a petition is time-barred in this case, we are obliged to note Interior's apparent failure not only to comment on, but even to review the application forwarded to it by EPA. Interior argues that the Coordination Act is directed toward agencies other than Interior and that is free either to waive its right to receive applications or to defer to another agency. See Udall v. Federal Power Commission, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967). Appellees urge a unilateral interpretation of the word "consult" as used in the Coordination Act. Under this interpretation EPA's simply sending the intervenor's NPDES permit application to Interior is claimed to have satisfied the consultation requirement so that Interior was not obliged to respond to EPA.
Indeed, EPA's regulations for compliance with the Coordination Act state that Interior may waive its right to receive permit applications and that failure to respond to EPA within an allotted period of time will be deemed a statement by Interior that it does not choose to comment at that time. 40 C.F.R. § 125.4(f)(1). However, this EPA regulation is not authority for a waiver by Interior; it is simply an administrative procedure designed by EPA for fulfilling its responsibilities under the Coordination Act. The possibility of Interior's waiving the receipt of NPDES permit applications, as suggested by the EPA regulation, has occasioned serious Congressional concern. See hearings, supra, note 9, at 1347-48.
Correspondence during 1973 from members of Congress
The problem has been somewhat resolved, since the dismissal of the district court action, by Interior's promulgation of proposed interim guidelines for screening NPDES permits to determine which will have "no" or "inconsequential impact on fish and wildlife resources" and which merit closer scrutiny. 39 Fed.Reg. 29552, 29555 (1974); see also 40 Fed.Reg. 55809 (1975).
Nevertheless, it is argued by appellees that these guidelines do not constitute an admission that Interior is obliged to review or comment on the applications. The district court suggested that the lack of any express requirement that Interior respond to EPA is an implicit grant of discretion to Interior allowing it to utilize its resources as it sees fit. In the same vein, appellees argue that Interior has less expertise and fewer resources than EPA or DEC and that practical necessities of funding and management require that Interior be free to allocate its resources as it sees fit. See Hearings, supra, note 9, 1350.
However, the fact that NPDES permits are exempted from the full requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, (see 33 U.S.C. § 1371(c)(1)) taken together with the legislative intent that the Coordination Act apply to NPDES permits (see note 9 supra), renders the consultation requirement of the Coordination Act especially important in the context of NPDES permits. The facts that a stated goal of the Water Act is "the protection and propagation of fish, shellfish, and wildlife" (33 U.S.C. § 1251(a)(2)) and that state certification procedures exist (33 U.S.C. § 1341) as an additional check on EPA action in issuing NPDES permits do not justify an administrative conclusion that the consultation requirements of the Coordination Act are superfluous and dispensable. Interior itself has repeatedly recognized the importance of safeguarding the nation's wetlands, even as recently as in its proposed screening Regulations. See 39 Fed.Reg. 29555-56 (1974). To employ a narrow construction of the word "consult," as urged, would be to emasculate the Coordination Act.
Interior's position that funding and personnel are inadequate to meet the burdensome demands of reviewing NPDES permits is entitled to little weight as it has failed to request the funds and personnel necessary for it to fulfill its responsibilities.
Turning next to the § 509(b)(1) petition to review the action of the Administrator in issuing the NPDES permit, we hold that it is time-barred. Section 509(b)(1) clearly sets forth a 90 day limitation period which we construe to be a statute
Petitioners' argument that Peabody Coal is distinguishable because it involved the approval of a state-wide plan rather than the issuance of a single permit must fail. The possibility of an error by the Administrator carries more serious risks in the approval of a state-wide plan than in the issuance of a single permit. Nevertheless, the court in Peabody Coal held that the 90 day limit was a bar to a petition filed 92 days after the challenged action.
Petitioners in this case filed their petition over a year after the permit had been issued. Petitioners would have us toll the statute of limitations on an equitable estoppel theory premised on the alleged failure of EPA to give notice. It is unclear whether the alleged failure to give notice relates to notice of the pendency of the application or notice that the permit had been issued. Without passing on the adequacy of notice in the first instance or the necessity of notice in the latter connection, we must deny this application for equitable relief. Petitioners Sun and Kipp apparently received actual notice of the permit's issuance in August of 1974; they admittedly received written notice in September of 1974; the remaining petitioners received notice by October of 1974. The district court action was commenced on January 8, 1975. Yet, the instant petition was not filed until July 31, 1975.
Petitioners' alternate theory in support of the petition is that the grounds on which the petition is based arose after the 90 day period had run and, consequently, under § 509(b)(1), the petition is timely as it was "based solely on grounds which arose after such ninetieth day." 33 U.S.C. § 1369(b)(1). The alleged failure to give notice obviously arose, and as demonstrated above was discovered, before the 90 day period had elapsed. Likewise the extent of consultation under the Coordination Act is not a ground arising after the limitation period had run; it was a part of the administrative record and was available to petitioners throughout the 90 day period. Even accepting petitioners' representation that the facts surrounding this issue were not known to them until the institution of the district court action, this late knowledge is not chargeable to respondent. In any case, the petition was not even filed within 90 days of such knowledge.
The challenge to the actual terms of the permit on the grounds that EPA failed to adhere to its own wetlands regulations or failed to consider the impact of the discharge downstream cannot possibly be viewed as having arisen after the 90 day period. The additional scientific data collected by and offered through the expert who testified for petitioners at the DEC hearings is just that: additional evidence in support of the position petitioners have maintained throughout the proceedings. It does not constitute new grounds for a petition.
Finally, the ruling of the district court that it lacked jurisdiction can hardly be construed, as urged by petitioners, to be newly arising ground for filing the petition.
The apparent harshness of denying the petition is mitigated by a number of factors. There is the history of petitioners' substantial participation in and input into the proceedings from the outset. There is also the opportunity available to petitioners to present any complaint or new evidence to the EPA.
To the extent that petitioners gather evidence of a violation of the permit they are free to bring it to the attention of the Administrator for appropriate action or, after giving the required notice, to commence a citizen suit against either the violator or the Administrator or both. See 33 U.S.C. §§ 1319, 1365; 40 C.F.R. § 135
Nor is the presentation of new evidence to EPA a meaningless exercise since the terms of the permit reserve to EPA the right to modify, suspend, or revoke the permit for cause after notice and the opportunity for a hearing.
Moreover, the permit is, by its terms, limited to five years' duration. Should a more restrictive effluent standard be established under § 307(a) of the Water Act, 33 U.S.C. § 1317, the permit will be modified to reflect the new standard.
Finally, the equities of this case lie heavily with the intervenors who have proceeded at great expense
For the above reasons the appeal from the judgment of the district court is affirmed and the petition is denied.
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.
At argument on appeal and in post-argument submissions the appellees have contended that the Coordination Act does not apply to most NPDES permits. Under this theory, while Congress apparently intended to make the Coordination Act applicable to NPDES permits, in fact Congress limited its application to permits allowing discharges which would accumulate and result in the impoundment, diversion, or modification of a body of water. See 16 U.S.C. § 662. Appellees go on to argue for a narrow construction of the term "modification." See Hearings Before the Conservation and Natural Resources Subcomm. of the House Comm. on Government Operations, 93d Cong., 1st Sess., Appendix 4, Part C, Correspondence Re: Applicability of Fish and Wildlife Coordination Act at 1291-94 (1973) (hereinafter "Hearings"). However, a narrow construction of the term is inappropriate in the light of Congressional intent that the Act apply to NPDES permits. Senate Comm. on Public Words, 93d Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972 at 331-32, 651 (Comm. Print 1973) (2 vols.).
In any case, in order for Interior to determine whether or not an application is one which falls within its scope of review, some degree of study and exercise of discretion is necessary.
Finally, as the district court found, this question appears to have been resolved within the Executive Branch itself in favor of the applicability of the Coordination Act to NPDES permits. See Hearings at 1342.
Without holding whether or not such a private right of action does exist, we note that compliance with the Coordination Act might be a consideration in connection with a § 509 petition for review of an NPDES permit. In any case, as far as New York State is concerned, on October 28, 1975 EPA delegated its permit issuing function to the DEC which, as a state agency, may not be required to consult with Interior under the Coordination Act. But see Hearings, supra note 9, at 1269, 1272, 1276, 1297, 1335, 1363, 40 Fed.Reg. 55809, 55811 (1975).