KOELSCH, Circuit Judge:
These three matters
They commonly concern objections of the Regional Administrator
The provision, relied upon by the district court as the ground for dismissal of Scott's suit for declaratory and injunctive relief, and likewise urged by petitioners here as the one vesting this court with original jurisdiction, appears in subsection (b)(1) of § 509.
The subsection itself is headed "Review of the Administrator's action" and is followed by a specification of six "actions" which a court of appeals is given jurisdiction to review at the behest of an interested person. The particular provision relied upon is 509(b)(1)(F). It reads thus:
In terms, at least, this provision does not extend to a state's grant or rejection of a permit; it 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. Nor does the Act's legislative history reveal any statement or basis for the conclusion that the lawmakers intended to include state action within § 509. Neither does § 402 afford any basis for a different conclusion; in substance, that section contemplates that for a limited period of time following the effective date of the Act, the Administrator will issue or deny NPDES permits, but also makes provision for the states to take over that function upon compliance with certain conditions. See § 402(a), (b) and (c). Thus it would seem fair to conclude from a literal reading of the provisions of § 509(b)(1)(F) that when the Congress spoke of the Administrator's action in "issuing or denying" any permit, it had in mind this period during which the Administrator was to act in such matters and was mindful that the states would probably shortly take over the permitting authority. Nor does anything in § 402 or elsewhere in the Act suggest the existence of an agency relationship between the Administrator and a state so that the latter's action in issuing or denying a permit could be deemed action of the Administrator. To the contrary, § 402 makes clear that once the state has secured approval of its own permit program, its actions in permit matters are those of the state itself, subject to the Administrator's veto under
It is vigorously contended that § 402(d)(2)(B) — the provision under which the Administrator purported to veto the Anacortes permit — brings the matter within the purview of § 509(b)(1)(F). That provision reads:
In substance, the argument is that the Administrator's objection to a state-issued NPDES permit constitutes "action" in denying a permit. But the predicate for this argument requires an exercise in verbal gymnastics which we find wholly unwarranted. As already pointed out, § 509 in clear and unmistakable language limits itself to the Administrator's own permit functions. Both the Second and Fifth Circuits in instances where an interested person initiated a proceeding in a Court of Appeals under the purported authority of § 509 to review the Administrator's refusal or failure to object to a state-issued permit have read and applied the provision literally, taking the view that the Administrator's failure or refusal to act is not tantamount to the kind of "action in issuing a permit" intended by § 509(b)(1)(F). Save the Bay, Inc. v. Administrator of E. P. A., 556 F.2d 1282 (5th Cir. 1977); Mianus River Reservation Committee v. Administrator, 541 F.2d 899 (2d Cir. 1976). True, those decisions dealt with the "issuing," not the "denying," clause of the provision, but we think the rationale of Save the Bay and Mianus River is applicable here. The common sense of the phrase "to the issuance" does not connote "fail to object." And if the text of § 509 will not support such a strained construction of "action in issuing," neither will it support a construction equating "action in denying" with "objecting." Not only is the language of § 509(b)(1)(F) clear and unequivocal, but neither the text nor the legislative history of the statute lends any support to a judicial construction which would fracture the provision in halves, equating "denying" with "objecting," but not equating "issuance" with "not objecting." We decline to place so radical a gloss upon the provision.
It follows that we are obliged to dismiss the two petitions.
We come now to the question whether the district court (in No. 76-1305) was correct in ruling that it lacked jurisdiction to entertain and decide Scott's suit for declaratory and injunctive relief. Our conclusion that we lack subject matter jurisdiction over petitioners' claims under § 509 does not necessarily mean that the Administrator's action in objecting to the Anacortes permit is not subject to judicial review at all. Generally, final administrative action is presumed to be subject to judicial review at the instance of an aggrieved party and "will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). See also Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962); Bays v. Miller, 524 F.2d 631, 632 (9th Cir. 1975); Montana Chapter of Ass'n of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1168 (9th Cir. 1975); Washington Utilities & Transp. Commission v. F.C.C., 513 F.2d 1142, 1145-46 (9th Cir. 1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).
The mere fact that Congress prescribed a specific mode of judicial review for those actions of the Administrator enumerated in § 509(b)(1) of the Act does not alone suffice to preclude an alternative form of judicial review of final administrative action not encompassed within the provision of § 509(b)(1): "`The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to
Nothing in the structure of the statutory scheme, its legislative history, or the nature of the Administrator's action in objecting to a proposed state-issued NPDES permit suggests that Congress meant to preclude judicial review of the Administrator's exercise of the veto power conferred by § 402(d). Cf. Save the Bay, Inc. v. Administrator of E. P. A., supra; Mianus River Preservation Committee v. Administrator, supra. Indeed, the very breadth of those actions of the Administrator explicitly subjected to judicial review by the terms of § 509(b)(1) strongly suggests that Congress did not intend to insulate the Administrator's objection to a state-issued NPDES permit from judicial review.
Against this background, the Act's failure to explicitly prescribe a means of judicial review of the Administrator's exercise of the veto power under § 402(d) suggests no more than a legislative oversight: "The only reasonable inference is that the possibility did not occur to the Congress." Wirtz v. Bottle Blowers Ass'n, 389 U.S. 463, 468, 88 S.Ct. 643, 647, 19 L.Ed.2d 705 (1968). Scott is thus entitled to the "basic presumption" that the Administrator's action in objecting to the issuance of the Anacortes permit is subject to judicial review and, as a party aggrieved by final administrative action, Scott may obtain review of the Administrator's action under Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Abbott Laboratories v. Gardner, supra, 387 U.S. at 140, 87 S.Ct. 1507; Save the Bay, Inc. v. Administrator of E. P. A., supra, 556 F.2d at 1293; Bays v. Miller, supra, 524 F.2d at 632.
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.
Scott contends that in the absence of effluent limitation guidelines promulgated by EPA in the form of regulations and applicable to point sources
As indicated, although commanded by Congress to "publish within one year of enactment of this title [i. e., by October 18, 1973], regulations, providing guidelines for effluent limitations" (§ 304(b)), "[t]he various deadlines imposed on the Administrator were too ambitious for him to meet." E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 122, 97 S.Ct. 965, 972, 51 L.Ed.2d 204 (1977). See also National Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975). Specifically, as of the date the Administrator purported to object to the Anacortes permit under § 402(d), he had not yet published effluent limitation guidelines applicable to the pulp and paper industry in the form of regulations
We conclude, however, that as a matter of statutory interpretation the Administrator's exercise of the veto power conferred by § 402(d) is contingent upon the antecedent formulation of guideline regulations under § 304(b) in conformity with the rule making provisions of the Administrative Procedure Act, 5 U.S.C. § 553.
As noted, the Administrator's exercise of the veto power under § 402(d) is expressly conditioned upon and confined to a finding that the state-issued NPDES permit in question is "outside the guidelines and requirements of [the] Act." § 402(d)(2)(B). It is conceded that the Administrator objected to the Anacortes permit as proposed by DOE on the specific ground that the permit failed to require the achievement of BPT at the Anacortes plant within the meaning of § 301(b)(1)(A).
We first dispose of the Administrator's contention that the term "guidelines" as used in § 402(d)(2)(B) refers only to the guidelines establishing uniform procedures for state-administered NPDES permit programs which the Administrator is required to issue by § 304(h).
In light of the language of § 304(b) and the relevant legislative history, we are clear that Congress intended the Administrator to formulate effluent limitation guidelines expressing BPT for classes and categories of point sources only after giving "interested persons an opportunity to participate in the [effluent limitation guideline] rule making through submission of written data, views, or arguments with or without opportunity for oral presentation." 5 U.S.C. § 553. See Save the Bay, Inc. v. Administrator of E. P. A., supra, 556 F.2d at 1294; cf. E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 133, 97 S.Ct. 965, 51 L.Ed.2d 204 n. 24 (1977); Ford Motor Co. v. U.S. EPA, 567 F.2d 661, 671-72 (6th Cir. 1977). That he did not do here. As we will endeavor to show later in this opinion, that failure is fatal to his position.
Had the Administrator issued § 304(b) guidelines for pulp and paper point sources in conformity with the procedure prescribed by 5 U.S.C. § 553 prior to the time he purported to object to the Anacortes permit, Scott could not now complain that it had not had its day before the Administrator in the formulation of generally applicable effluent limitation standards. The Administrator could have measured the effluent limitations imposed upon Scott's Anacortes plant as proposed by DOE against the general standards applicable to classes and categories of pulp and paper point sources developed in the course of the § 304(b) rule making process and, on a finding that the BPT requirements proposed by DOE were "outside the guidelines and requirements of [the] Act," vetoed the permit under § 402(d)(2)(B). Scott (or any other aggrieved party) could then have secured judicial review of the Administrator's objection under the provisions of § 10 of the APA and relevant case law. See 5 U.S.C. §§ 701-706; Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
We necessarily adopt the subjunctive tense in outlining the procedural course that matters might have taken had the Administrator timely published effluent limitation guideline regulations under § 304(b) prior to objecting to the Anacortes permit. As matters stand, however, the Administrator has purported to nullify a state-issued NPDES permit and to threaten the permit applicant with civil penalties on the basis of criteria that have not been subjected to the safeguards of public rule making proceedings.
We must determine, however, whether the achievement of effluent reductions through the application of BPT is a ". . . requirement of [the] Act" within the meaning of § 402(d) in the absence of § 304(b) guideline regulations. Reluctantly, we conclude that it is not. The express language of § 301(b) of the Act does not in terms require the reduction of effluents through the application of BPT no matter how expressed or determined. Rather, it calls for the achievement of "effluent limitations . . . which shall require the application of [BPT] as defined by the Administrator pursuant to Section 304(b) of this Act . . .." § 301(b)(1)(A); emphasis added. Section 304(b), in turn, provides that
Thus, "[t]o summarize, § 301(b) requires the achievement of effluent limitations requiring use of the `best practicable' . . . technology. It refers to § 304 for a definition of these terms. Section 304 requires the publication of `regulations, providing guidelines for effluent limitations.'" E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 121, 97 S.Ct. at 971.
The term "guidelines" appears again in the operative clause of § 402(d)(2)(B) — circumscribing the Administrator's use of the veto power — without explication. We are clear that the term "guidelines" as used in defining the veto power of § 402(d) includes the effluent limitation guidelines which the Administrator is required by § 304(b) to develop and issue in the form of regulations. Cf. E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 133 n. 24, 97 S.Ct. 965; Save the Bay, Inc. v. Administrator of E. P. A., supra, 556 F.2d at 1294. The "guidelines and requirements" clause of § 402(d)(2)(B) thus points back to the guideline regulations of § 304(b), the existence of which, as indicated, is an explicit precondition for the statutory requirement of § 301(b) that effluent reductions be achieved through the application of BPT.
Our conclusion that the Administrator's power of objection under § 402(d) is conditioned upon the existence of § 304(b) guideline regulations prescribing BPT for classes and categories of point sources is not only commanded by a fair reading of the statutory language but is also operationally consistent with the permit issuing sequence contemplated by the Act. As we construe the mechanics of the statutory scheme, Congress envisioned that the Administrator would not have occasion to exercise the veto power conferred by § 402(d) in the absence of effluent limitation guideline regulations promulgated under § 304(b).
As contemplated by the Act, issuance of effluent limitation guideline regulations under § 304(b) would precede the transfer of the NPDES permitting function from EPA to the several states. The § 304(b) guidelines would thus perform their intended function of guiding state NPDES permit authorities in determining BPT for individual point sources by expressing effluent limitation values achievable through application of the technical requirements and methodology prescribed by § 304(b). Cf. E. I. duPont de Nemours & Co. v. Train, supra, 430 U.S. at 121, 97 S.Ct. 965. "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." Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 327, 510 F.2d 692, 707 (1975). The subsequent issuance of individual NPDES permits by state authorities would then serve "to transform generally applicable effluent limitations . . . into the obligations . . . of the individual discharger . . .." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976).
In light of the regulatory sequelae envisioned by the Act, it follows that Scott cannot now be made procedurally whole at the hands of the district court. Since Congress intended the Administrator to formulate uniform effluent limitation standards expressed as BPT on an industry-wide basis by means of rule making proceedings, any attempt at judicial repair — through an evidentiary proceeding in the district court — of the Administrator's error in objecting to the Anacortes permit on the basis of an ad hoc determination of what constitutes BPT for the Anacortes plant would be manifestly inconsistent with the statutory scheme.
In the absence of a valid objection under § 402(d), the compliance order issued by the Administrator requiring Scott to submit a plan designed to achieve effluent reductions based on the Administrator's unilateral determination of BPT at Anacortes is without statutory warrant.
The petitions in Nos. 75-2479 and 75-2494 are dismissed for lack of jurisdiction; the judgment in No. 76-1305 is reversed, and the matter is remanded to the district court for entry of judgment consistent with this opinion.
No party shall recover costs.
Nos. 75-2479 and 75-2494 are petitions filed originally in this court by the State of Washington and Scott Paper Company, respectively, to secure review of the Administrator's action.
No. 76-1305 is an appeal by Scott, plaintiff below, from a judgment of the district court dismissing its suit on the grounds of lack of subject matter jurisdiction.
They have been consolidated for disposition.
Here it is not disputed that DOE, in line with § 402(b) and sometime before issuing the NPDES permit to Scott, had duly submitted its own permit program together with implementing regulations to the Administrator and secured from him authorization to issue permits "for discharges [of pollutants] into the navigable waters within the jurisdiction of [the] State." § 402(a)(5).
"(b) In order to carry out the objective of this Act there shall be achieved . . .
"(1)(A) not later than July 1, 1977, effluent limitations for point sources . . . (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act . . .."
"(h) The Administrator shall (1) within sixty days after the enactment of this title promulgate guidelines for the purpose of establishing uniform application forms and other minimum requirements for the acquisition of information from owners and operators of point-sources of discharge subject to any State program under section 402 of this Act, and (2) within sixty days from the date of enactment of this title promulgate guidelines establishing the minimum procedural and other elements of any State program under section 402 of this Act 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)."