Justia Federal District Court Opinions

The Natural Resources Defense Council (NRDC) brought an action in federal district court against the Environmental Protection Agency (EPA) and its Administrator (then Robert W. Fri, now Russell E. Train), seeking to compel the publication of effluent limitation guidelines called for by section 304(b)(1) (A) of the Federal Water Pollution Control Act Amendments of 1972.¹ This appeal from the District Court's orders of November 15 and 27, 1973, granting relief sought by NRDC² presents questions pertaining to the duty imposed upon the Administrator by that section and the operation of the citizen suits provisions of the Act. (Pertinent provisions of the Act are gathered in Appendix A.)

The Act, enacted on October 18, 1972, after extensive consideration and debate, establishes a comprehensive program designed 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters' in pursuit of a 'national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.'³ Although the statute launches a multipronged attack on the problem of water pollution,⁴ it relies primarily on a permit program for the achievement of effluent limitations--restrictions on the quantity of pollutants that may be discharged into the nation's waters--to attain its goals.

A brief sketch of the provisions of the Act relating to the formulation and implementation of the effluent limitations will indicate the relationship of the particular subsection at issue to the working of the Act. Section 301(b) sets forth two stages of effluent limitations which are to be achieved as intermediate steps in pursuit of the 1985 objective. The first step requires conformity not later than July 1, 1977, with effluent limitations for point sources other than publicly owned treatment works that shall require the application of the best practicable control technology currently available.⁵ The second stage, to be completed no later than July 1, 1983, contemplates the reduction of the discharge of pollutants to an effluent limitation level attainable by the application of the best available technology economically achievable for such classes and categories of point sources.⁶

A primary means created by the Act for achieving the effluent limitations by the deadlines contained in section 301(b) is the National Pollutant Discharge Elimination System (NPDES) established by section 402.⁷ After dates set forth in that section, a person must obtain a permit and comply with its terms in order to discharge any pollutant.⁸ The conditions of the permit must assure that any discharge complies with the applicable requirements of numerous sections including the effluent limitations of section 301(b).⁹

The timetable for permit issuance is set forth in section 402(k). For the first 180 days after the enactment of the statute, the discharge of any pollutant shall not be a violation of the Act if the discharger applies for a permit within the 180 day period. Until December 31, 1974, the pendency of an application for a permit containing the necessary information for processing of the application will prevent a polluter from being in violation of the permit requirement.¹⁰ After December 31, 1974, the Act contemplates that all discharges from point sources shall be made in conformity with a permit. The permits may be issued by the states under approved programs or by the Administrator in the absence of a state program.¹¹ The Act vests the Administrator with final review authority for permits issued by the states.¹²

The effluent limitations incorporated in the permit conditions are to be based on regulations published under section 304(b) providing guidelines '(f)or the purpose of adopting or revising effluent limitations.'¹³ Subsection (1) of that provision deals with guidelines for the effluent limitations to be achieved by July 1, 1977, limitations based on use of the best practicable control technology currently available. The provision involved in this appeal, section 304(b)(1)(A), requires the identification of the 'degree of effluent reduction attainable through the application' of that technology to classes and categories of point sources 'in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants.' The companion provision, section 304(b)(1)(B), calls on the Administrator to set forth factors for determining the control measures and practices to be applied to point sources.

The primary question in this case is the interpretation of the time limit imposed for the publication of regulations under section 304(b)(1)(A). The section states in pertinent part:

(b) (T)he Administrator shall . . . publish within one year of enactment of this title, regulations, providing guidelines for effluent limitations and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall--

(1) (A) identify . . . the degree of effluent reduction attainable . . . for classes and categories of point sources (other than publicly owned treatment works). . . .

NRDC claims that the regulations for all classes and categories of point sources were due on October 18, 1973, 'in order to provide time to apply these guidelines to all point sources through the permits which must be issued by December 31, 1974.'¹⁴ EPA argues that section 304 must be administered in the light of section 306. Section 306(b)(1)(A) provides that the Administrator shall publish, within 90 days after the October 18, 1972, date of enactment, and from time to time thereafter shall revise, a list of categories and sources. It specifies that the list 'shall, at the minimum, include: pulp and paper mills; * * * timber products processing.' This minimum list consists of 27 specified sources. EPA's position is that guidelines for categories of sources specified in section 306(b)(1)(A) were required by October 18, 1973, but that the agency has discretion regarding the publication date of regulations for other point source categories.¹⁵

The circumstances which culminated in the filing of the present action by NRDC relate back to public meetings held in early 1973 at which EPA officials discussed the agency's plans for implementing section 304(b)(1)(A).¹⁶ Those plans called for the publication of guidelines in three groups in October, 1973, May, 1974, and October, 1974.¹⁷ On April 12, 1973, J. G. Speth, counsel for NRDC, wrote Robert McManus, Office of General Counsel, EPA, to protest the 'plainly illegal course' embodied in the implementation plans.¹⁸ The letter set forth NRDC's understanding of EPA's position and argued that the Act required publication of all section 304(b)(1)(A) guidelines by October 18, 1973. Robert V. Zener, Acting Deputy General Counsel of EPA, responded on June 15, 1973, reaffirming the agency's position and claiming that it was supported by the language and the legislative history of the provision.¹⁹

On August 14, 1973, NRDC filed a complaint in the United States District Court for the District of Columbia seeking a declaration that the Administrator had a nondiscretionary duty under section 304(b)(1)(A) to promulgate effluent limitation guidelines for all classes and categories of point sources (other than publicly owned treatment works) within one year of the enactment of the Act and an order requiring that such guidelines be promulgated as expeditiously as possible and in no event later than April 1, 1974.²⁰ On November 15, 1973, Judge Green granted plaintiff's motion for summary judgment, declaring that the 'defendants have a mandatory, non-discretionary duty to publish within one year of enactment of the Act final Section 304(b)(1)(A) effluent limitation guidelines necessary to provide comprehensive coverage of all point source discharges' and ordering a proposed schedule for publication of guidelines with a final deadline of October 1, 1974.²¹ A subsequent order, issued November 27, 1973, enjoined the defendants to comply with a detailed timetable for publication of guidelines that divided point sources into two groups--Group I, corresponding to the 27 categories of sources listed in section 306(b)(1)(A), and Group II, including all other classes and categories of point sources.²² That order allocated the categories contained in the two groups among 29 publication dates beginning on January 15, 1974, and ending on November 29, 1974. Guidelines for all Group I categories were due on October 1, 1974, with publication of Group II guidelines to commence on October 4, 1974.²³ The trial court established this timetable '(t)o ensure that Section 304(b)(1)(A) guidelines will be published in time to be applied meaningfully in the National Pollutant Discharge Elimination System (NPDES) permit program established by Section 402 of the Act.'²⁴

EPA's motions for a stay of the District Court's order pending appeal were denied by the District Court on May 16, 1974, and by this court on July 25, 1974. At oral argument on appeal the agency again moved for a stay of the order entered below and NRDC voiced its objections to this motion. On October 3, we granted appellants' motion, in part, staying the District Court's order pertaining to Group II categories and requiring that section 304(b)(1)(A) guidelines for those categories be published by December 31, 1974.²⁵

The memorandum accompanying the stay order sketched our tentative thinking on the two issues raised by EPA--(1) whether the District Court lacked subject matter jurisdiction because NRDC failed to give 60 days notice prior to commencement of the action and (2) whether the District Court erred in finding that the Administrator had a nondiscretionary duty to publish all section 304(b)(1)(A) effluent limitation guidelines by October 18, 1973. Our present thinking reflects the reconsideration of the issues prompted by the process of drafting and revision and assisted by supplemental briefs filed by both parties. The opinion departs from the approach but not the conclusion reached on the jurisdictional issue and fills out, with some modifications, the memorandum's discussion of the merits.

The Government contends that the District Court lacked subject matter jurisdiction in this case, and consequently, that its order must be vacated. The Administrator argues that an action brought by a citizen to compel him to perform a duty which is not discretionary under the Act must be commenced under section 505(a)(2),²⁶ and that section 505(b)(2) precludes an action under subsection (a)(2) 'prior to sixty days after plaintiff has given notice of such action to the Administrator.'²⁷ Pursuant to the directive of subsection (b)(2), the Administrator has prescribed regulations governing the manner of affording notice.²⁸ EPA urges, for the first time on appeal, that NRDC's failure to comply with the notice regulations constitutes a fatal jurisdictional defect.²⁹ If this is a jurisdictional defect, it may be raised on appeal either by the parties or by the court sua sponte.³⁰

NRDC claims that section 505(e) of the Act³¹ allows this action to be brought under either the general federal question statute, 28 U.S.C. § 1331, or the Administrative Procedure Act without prior notice to the Administrator.³² We accept this view.³³

Citizen Suit Provisions

The issue is the intention of the 'citizens suits' provision of section 505, and the relationship between its subsections (a), (b), and (e). Section 505(a) (2) plainly provides for actions, like the present one, to require the Administrator to perform a nondiscretionary duty specified by the Act, but NRDC argues that it is not exclusive. NRDC relies on section 505(e) as a saving clause that preserves jurisdiction granted by other statutes, in addition to the jurisdiction conferred by section 505(a). The question of the exclusivity of section 505(a)(2) simply cannot be resolved by looking at the plain language of the Act. We therefore turn to legislative history.

The citizen suits provision of section 505 was explicitly 'modeled on the provision enacted in the Clean Air Amendments of 1970.'³⁴ (For convenience, the pertinent section of that statute and the key elements of its legislative history are set forth in Appendix B of this opinion.) The citizens suits provision that emerged as section 304 of the Clean Air Act originated in the Senate to 'provide citizen participation in the enforcement of standards and regulations established under this Act.'³⁵ It reflects Congress's recognition that '(c)itizens can be a useful instrument for detecting violations and bringing them to the attention of the enforcement agencies and courts alike.'³⁶ It was designed to provide a procedure permitting any citizen to bring an action directly against polluters violating the performance standards and emission restrictions imposed under the law or against the Administrator grounded on his failure to discharge his duty to enforce the statute against polluters.³⁷

Anyone even remotely familiar with the case law of the period will discern that this provision took broad steps to facilitate the citizen's role in the enforcement of the Act, both in renouncing those concepts that make federal jurisdiction dependent on diversity of citizenship and jurisdictional amount, and in removing the barrier, or hinderance, to citizen suits that might be threatened by challenges to plaintiff's standing.³⁸ At the same time, because of the obvious danger that unlimited public actions might disrupt the implementation of the Act and overburden the courts, Congress restricted citizen suits to actions seeking to enforce specific requirements of the Act and conditioned their commencement on the provision of a sixty day notice to the Administrator and the local enforcement agency.³⁹ The notice requirement was intended to 'further encourage and provide for agency enforcement' that might obviate the need to resort to the courts.⁴⁰

Limitation on Expansion of Federal Jurisdiction

The legislative history of the Clean Air Act Amendments reveals that the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced.⁴¹

Congress did not fling the courts' door wide open. As we have already seen, the new provision for citizen suits, section 304(a), was hedged by limitations--the confinement to clear-cut violations by polluters or defaults by the Administrator; and the accompaniment, set forth in section 304(b), of a condition of notice.⁴²

Saving Provision

These were palpably, however, limitations on the expansion of jurisdiction contained in section 304(a), and were not intended as restrictions to curtail federal court jurisdiction over actions that would have been maintainable even in the absence of this special citizen suit provision.⁴³ This is the fair reading of what Congress intended, and it was articulated in the saving provision of § 304(e).⁴⁴ As the Senate Report states, these restrictions do not 'affect in any way whatever remedies such citizens might have under statutory or other law.'⁴⁵

Water Pollution Law Modeled On Clean Air Provisions

The same chime of intent reverberated in the legislative halls in 1972 when Congress came to amend the statute coping with water pollution.⁴⁶ The Act under consideration is different from the clean air provisions, as noted in the margin,⁴⁷ but there is no difference that is consequential for present purposes.⁴⁸

The Act before us is a clear parallel. The interrelationship of the citizen suits provisions is the same as for the clean air statute. The limitations, in subsections (a) and (b) of section 505, restrict the expanison of jurisdiction provided by the special citizen suits provision of section 505(a), and do not cut back on federal court jurisdiction over actions that would have been maintainable even in the absence of that special authorization. This intent is confirmed by the saving clause of subsection (e).⁴⁹

In the wake of section 505(g),⁵⁰ which defines a citizen as a person having an interest which is or may be adversely affected, the provision in section 505(a)(2) may add little to the jurisdiction of federal courts as a practical matter.⁵¹ That may come to depend on whether the Supreme Court sustains the view of this court that the Administrative Procedure Act is a grant of jurisdiction.⁵² It may come to depend on the number of instances in which actions cannot satisfy the jurisdictional amount provision of 28 U.S.C. § 1331.⁵³ But these considerations do not add or detract from our discernment of the basic legislative intention as to the relationships between subsections (a), (b) and (e).⁵⁴

Precedents

Ours is apparently a case of first impression at the circuit court level. The District Court rulings are in disarray,⁵⁵ and while we appreciate the efforts of the judges involved and have given consideration to their opinions, we have been able, with the benefit of full briefs and our own research, to adduce a more ample perspective for the issue. We may add that if the Government's present contention is sound the 'impoundment' cases--which sustained a charge of a violation of nondiscretionary duty in the failure of the Administrator to make an allotment of authorized funds pursuant to sections 205 and 207 of the Act--could not have been maintained under 505(e) but would have had to be brought under 505(a)(2).⁵⁶ The impoundment litigation illustrates the danger that a broad reading of 505(a)(2) as exclusive would sweep into that subsection far more than Congress really had in mind.

Notice and Exhaustion of Administrative Remedies

Even where, as in this case, the notice provision of section 505(b)(2) is not a jurisdictional prerequisite,⁵⁷ the courts may properly give effect to the salutary purpose underlying the notice provision by resort to familiar doctrines such as those underpinning the requirement of exhaustion of administrative remedies. The notice provision was designed to obviate the need for judicial recourse by affording the agency the 'opportunity to act on the alleged violation.'⁵⁸ Sound discretion bids a court stay its hand upon petition by the Administrator where it has reason to believe that further agency consideration may resolve the dispute and obviate the need for further judicial action. However, the court has jurisdiction and may maintain the action on its docket in a suspense status, and even grant temporary relief.⁵⁹ And the court may promptly proceed to the merits of the action when it is confident or becomes confident that agency recourse is futile, as where the agency's position is firm.

Considerations pertaining to exhaustion of remedies and primary jurisdiction have little relevance when raised for the first time by an agency appealing from a court order. We are presented with no evidence that the agency desires to reassess its plans for implementing section 304(b)(1)(A) and the course of the present action clearly indicates that the agency's position with regard to its discretion under that section is firmly rooted.II. MERITS

1. As to point sources within section 306 categories

The controversy presented in this case focuses on the interpretation of the Administrator's duty to publish effluent limitation guideline under section 304(b)(1)(A) of the Act. That provision reads as follows:

(b) 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, published 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);

The District Court held that the section imposed a 'mandatory, nondiscretionary duty to publish within one year of enactment of the Act final Section 304(b)(1)(A) effluent limitation guidelines necessary to provide comprehensive coverage of all point source discharges.'⁶⁰ It ordered the Administrator to publish all effluent guidelines by November 29, 1974, in accordance with a schedule which divided the categories of point sources into two groups.⁶¹ The Administrator challenges this conclusion, urging that he has discretion over the date of publication of guidelines for those categories of point sources contained in Group II of the order.⁶²

As to the 27 categories of sources contained in Group I of the order, which are all listed in section 306(b)(1)(A) of the Act, EPA concedes that it has a duty under the Act to promulgate effluent limitation guidelines within one year of the enactment of the statute.⁶³ The District Court's order requiring publication of guidelines for those point sources in conformity with its prescribed timetable was a proper exercise of jurisdiction under section 505(a) (2) to compel performance of a statutory duty that has been unreasonably delayed.

The District Court acted reasonably in using a publication schedule as a means of implementing its order. The October 18, 1973, statutory deadline had passed without the publication of a single effluent limitation guideline. In light of the failure of the agency to meet its acknowledged duty under the Act,⁶⁴ the District Court's decision to incorporate a timetable into the order constituted a reasonable step to facilitate supervision of the decree and to assure early efforts by the delinquent defendant toward eventual discharge of its statutory responsibility. Sound principles counsel resort to a structured type of order where the court seeks to compel completion of a task which will necessarily extend over a substantial period.⁶⁵ Requiring the courts to rely on mere exhortation to move with expedition toward compliance within a 'reasonable time' would undercut their ability to spur reticent defendants to render the performance to which the plaintiff and public are entitled. The authority to set enforceable deadlines both of an ultimate and an intermediate nature is an appropriate procedure for exercise of the court's equity powers to vindicate the public interest.⁶⁶

The procedure employed in formulating and applying the Group I timetable also represented a proper exercise of the District Court's discretion. The District Judge's reliance upon the parties to draft a proposed timetable provided a measure of assurance that the order would be workable.⁶⁷ In addition to this initial receptivity to the views of the parties, the court demonstrated a willingness to accommodate objections by EPA and amici curiae to certain publication deadlines by modifying the timetable.⁶⁸ In light of the April 18 modification granted at the urging of amici,⁶⁹ we view the March 14 statement that 'the Court will countenance no further delays nor requests for same' as expressing a firm commitment to expeditious compliance rather than a rigid bar that would foreclose consideration of future meritorious petitions for modifications that retained the essence of prompt performance, and proposed adjustments in detail.⁷⁰

2. As to point sources within other categories

With respect to the Group II categories, we reach a conclusion different from that announced by the District Court. Although we recognize that substantial support can be marshalled for the position that all section 304(b)(1)(A) guidelines were due on October 18, 1973, we believe that contrary indications in the Act's legislative history, combined with the deference due the agency's interpretation of the statute, require us to vacate the portion of the District Court's order dealing with nonsection 306(b)(1)(a) point source categories.

Initially, we note that the language of the disputed provision does not foreclose either the reading given it by NRDC or that espoused by the Administrator. Although the statute requires that guidelines for classes and categories of point sources shall be published within one year, it does not state that guidelines for all classes and categories shall be completed within that period. Moreover, the language of section 304(b)(1)(A) resembles that employed in section 307(a)(1) which both parties interpret as affording the Administrator discretion over the time of listing some of the toxic pollutants to be regulated under that section.⁷¹

The Administrator contends that although the Act mandates publication of some guidelines by October 18, 1973, it provides him with discretion over the determination of point source categories beyond the 27 listed in section 306(b) (1)(A) and over the publication of guidelines for those additional classes and categories. The House Public Works Committee Report on the amendments bill links section 304(b)(1)(A) and 306(b)(1)(A) and indicates the discretion of the Administrator with regard to nonsection 306 source categories. It states:

As required in section 304(b)(1)(A), the Administrator, by regulations, is to identify the degree of effluent reduction attainable by the application of the best practicable control technology currently available for classes and categories of point sources. By this the Committee expects that the Administrator will concentrate on, but not be limited to, those categories of point sources enumerated in section 306(b)(1)(A) and any which the Administrator might add to that list.⁷²

This passage indicates that the 27 categories set forth in section 306 were intended to form the nucleus of the sources for which guidelines would be developed under section 304. The Administrator quite properly could conclude that Congress intended these items to receive first priority in the guideline formulation process and that the discretion provided him in delineating additional point sources extended to the publication date of the guidelines for those sources.

Supreme Court decisions counsel us to show 'great deference to the interpretation given the statute by the officers or agency charged with its administration.'⁷³ The deference owed the meaning placed on an act by the administrative body is heightened when the case involves the construction of a new statute by its implementing agency.

Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.'⁷⁴

This interpretation of section 304(b)(1)(A) in this case was neither an afterthought of counsel nor a practice so informal as to raise doubts whether it was reflectively deliberated. This passage in the House Report is relied upon in the June 15, 1972, letter from EPA's Acting Deputy General Counsel which was a considered disposition by key agency officials. The agency's good faith reliance on the congressional intent underlying section 304(b)(1)(A) is entitled to weight in the scales, and under the circumstances present in this case that weight is decisive. We find that the Act does not require the publication of guidelines for nonsection 306(b)(1)(A) categories within one year after its enactment as a nondiscretionary imperative.

B. Primary Duty To Publish Guidelines for All Categories of Point Sources By December 31, 1974

The Administrator contends that 'Section 304(b)(1)(A) grants (him) the authority and discretion to determine which classes and categories of point source discharges require the publication of guidelines and when those guidelines should be issued.'⁷⁵ While we agree with the Administrator that he has some latitude concerning the date of publication of guidelines for Group II categories, we do not accept the position that this discretion is at large. It is our view that the Act and its legislative history reign in the Administrator's discretion. The interrelationship of sections 301(b), 304(b), and 402, establishes that the Administrator has a primary duty to publish section 304(b)(1)(A) guidelines by December 31, 1974.

The Act relies on effluent limitations on individual point sources as the 'basis of pollution prevention and elimination.'⁷⁶ The achievement of these limitations depends on coordination of the different roles played by sections 301(b), 304(b), and 402 in the formulation and implementation of the effluent limitations. Section 301(b) contains a broad description of the phase one and phase two effluent limitations, to be achieved by July 1, 1977, and July 1, 1983, respectively. The limitations established under section 301(b) are to be imposed upon individual point sources through permits issued under the National Pollutant Discharge Elimination System (NPDES) established by section 402.⁷⁷ Those permits are to contain schedules which will assure phased compliance with the effluent limitations no later than the final dates set forth in section 301(b).⁷⁸ Section 304(b) calls for the publication of regulations containing guidelines for effluent limitations for classes and categories of point sources. These guidelines are intended to assist in the establishment of section 301(b) limitations that will provide uniformity in the permit conditions imposed on similar sources within the same category by diverse state and federal permit authorities.⁷⁹

The timetable governing the operation of these sections is controlled by the schedule for the issuance of permits under section 402. Section 301(a) of the Act prohibits the discharge of any pollutant unless there is compliance with the other sections listed therein.⁸⁰ The key provision referred to in section 301(a) is section 402, which pertains to the creation of the national pollution discharge elimination system and the issuance of permits thereunder.⁸¹ Section 402(k) makes December 31, 1974, a critical date. Until then, the pendency of a permit application will prevent a finding of violation of section 301.⁸² After December 31, 1974, however, persons discharging pollutants must have obtained a permit in order to have a legal defense against prosecution. Obviously, Congress contemplated that the task of evaluating permit applications and issuing permits would be completed by that date.⁸³

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 301.⁸⁴ 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.'⁸⁵ 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.⁸⁶ 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.

EPA seeks to play down the importance of section 304(b)(1)(A) guidelines in the implementation of the permit system, and hence the materiality of the December 31, 1974, date in the timing of those guidelines. The agency points to the failure of Congress to mention section 304 in section 402's permit provisions and to the authorization, in section 402(a)(1), of the issuance of permits prior to implementation of numerous sections including section 301.⁸⁷

While section 402's permit provisions do not refer expressly to section 304, they do refer to section 301. And section 304(b)'s statement that the guidelines are 'for the purpose of adopting or revising effluent limitations,' plainly establishes section 304 guidelines as the primary means of implementing the section 301 limitations.⁸⁸ The role of the guidelines in shaping the section 301(b) limitations is made clear in the Senate Report:

These guidelines (section 304(b)) would identify what constituted the 'best practicable control technology currently available' and the 'best available control measures and practices,' and the degree of effluent reduction attainable through the application of each. Thus, these guidelines would define the effluent limitations required by the first and second phases of the program established under section 301.⁸⁹

As Senator Muskie succinctly stated: 'The information under section 304(b) is to be applied in setting effluent limitations.'⁹⁰

EPA correctly notes that under section 402(a) EPA may issue permits--upon 'such conditions as the Administrator determines are necessary to carry out the provisions of this Act'--prior to taking implementing action with regard to listed sections including section 301.⁹¹ Although Congress contemplated that the permit program would be begun before the establishment of the section 301 effluent limitations, we believe it intended that EPA formulate effluent limitations for the great bulk of point source categories prior to completing the permit process for existing polluters.⁹²

Section 402 was designed to give responsibility for issuing permits to states that established a program conforming to procedural guidelines to be issued by EPA within 60 days of the enactment of the statute.⁹³ Congress sought to expedite these procedural guidelines to enable the states to qualify to issue permits as soon as possible after the passage of the Act.⁹⁴ It believed that the states would shoulder the primary burden of issuing permits to individual dischargers.⁹⁵ With the establishment of a qualified state program, EPA duties were to be restricted to assuring that the state followed the procedural guidelines and to reviewing individual permits of major significance.⁹⁶

The decentralization of permit issuing authority envisioned by section 402 prompted concerns that industrial threats to relocate in areas where pollution controls were less restrictive would coerce states into adopting lax permit requirements.⁹⁷ The effluent limitation guidelines contained in section 304(b) and the corresponding effluent limitations to be promulgated under section 301(b) were intended to safeguard against industrial pressures by establishing a uniform 'minimal level of control imposed on all sources within a category or class.'⁹⁸ Senator Muskie emphasized the function of the guidelines in promoting uniformity. He stated that '(t)he Administrator is expected to be precise in his guidelines 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.'⁹⁹ Prior to the promulgation of effluent limitations under section 301, the director of a state program is instructed merely to impose such terms and conditions in each permit as he determines are necessary to carry out the provisions of the Act.¹⁰⁰ Once an effluent limitation is established, however, the state director and the regional EPA administrator are required to apply the specified, uniform effluent limitations, modified only as necessary to take account of fundamentally different factors pertaining to particular point sources within a given class or category. Any variation in the uniform limitations adopted for specific dischargers must be approved by the Administrator.¹⁰¹

The interrelationship of sections 301(b), 304(b), and 402 underscores the contemplation of Congress that the Administrator has a primary responsibility to publish effluent limitation guidelines for the great bulk of the classes and categories of point sources prior to the December 31, 1974, date by which existing polluters must obtain permits. The general expectation of Congress was that the Administrator would define classes and categories of point sources and would publish guidelines prior to the issuance of the individual permits. The contours of the Administrator's duty with respect to section 304(b)(1)(A) guidelines are revealed by the purposes which those guidelines were designed to serve.

C. December 31, 1974 Deadline and Possibility of Exceptions

There may be a number of marginal classes of point sources containing a limited number of diverse dischargers for which class guidelines would serve little or no purpose. The Administrator may establish that he has no duty to publish guidelines for a specific class of point sources by showing that such guidelines would not be needed to promote the uniformity of permit conditions sought by Congress. The statutory framework is not so tightly drawn as to require guidelines for each and every class and category of point source regardless of the need for uniform guidelines or to mandate that all guidelines be published by December 31 regardless of their quality or the burden that task would place upon the agency.

However, the general contemplation that guidelines would precede individual permits indicates that guidelines serving the objectives of the Act are to be published prior to December 31, 1974, unless the Administrator offers a justification for abstention or delay, demonstrating that he has not failed to discharge his general duty with respect to section 304(b)(1)(A) guidelines.

Since we have concluded that the bulk of the guidelines are to be published by December 31, 1974, we find no present failure on the part of the Administrator to meet his responsibility to issue effluent limitation guidelines for non-section 306 source categories. Although some lead time between guideline publication, effluent limitation promulgation, and permit issuance is desirable to facilitate the use of the limitations in the formulation of permit conditions, it is possible that the statutory objective can be accomplished by coordination within the agency as both processes proceed together toward finalization and by the use of proposed guidelines and limitations prior to their effective date.¹⁰² In any event, the Act does not provide us with a benchmark for gauging when, prior to December 31, the Administrator had a duty to issue regulations pertaining to any particular point source category.¹⁰³ Where there has been no violation of a statutory duty, we think the proper course is to confine ourselves to a declaration of the intent of Congress and to give the Administrator latitude to exercise his discretion in shaping the implementation of the Act. We adhere to this view despite the Administrator's default in meeting the October 18, 1973, deadline for section 306 source categories. This is a question of law, and once the law has been judicially interpreted the agency can be expected to shoulder the task of compliance.

Even if we were to accept NRDC's position that the Administrator had a nondiscretionary duty to publish guidelines for all point source categories, we would still have to acknowledge the need for some leeway for modification of the December 31, 1974, deadline when circumstances preclude the formulation of adequate guidelines by that date. Although we believe that guidelines covering most point source categories should be readied by that date, we do not read the statutory scheme as categorically mandating that all guidelines be published by that time.

At the present time, we cannot say that EPA's apprehension that it will not be able to publish the great majority of guidelines by the December 31, 1974, deadline is a broadly valid concern when applied generally to non-section 306(b)(1)(A) point source categories. The effluent limitation guidelines required by section 304(b)(1)(A) are to be based on the 'best practicable control technology currently available.'¹⁰⁴ The agency's task is to identify point source categories, to determine the nature of the pollutants discharged, to ascertain the best practicable technology available for discharge control, and to calculate the effluent reduction achievable through application of that technology. Although these steps may be cumbersome, even awesome, they may well be within the agency's grasp, at least generally. The court's injunction should serve like adrenalin, to heighten the response and to stimulate the fullest use of resources. This may run the risk of overstimulating the organism, but palliative measures may be taken with regard to specific categories if indicated at a later date.

However, the looming December 31 deadline, and the dread of a judicial overdose, suggests the need to address ourselves to the problem identified by the agency, for the future guidance of the District Court. The record before us does not contain sufficient data to evaluate the potential difficulties that might preclude the publication of guidelines for specific categories by the December 31 deadline. The Act contemplates that the agency's guidelines will be defensible if attacked by polluters seeking to avoid the effluent limitations. We perceive two types of constraints which might delay the formulation of adequate guidelines for some few categories of point source beyond the deadline established by the Act. First, it is possible that budgetary commitments and manpower demands required to complete the guidelines by December 31 are beyond the agency's capacity or would unduly jeopardize the implementation of other essential programs. Second, EPA may be unable to conduct sufficient evaluation of available control technology to determine which is the best practicable or may confront problems in determining the components of particular industrial discharges. 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.¹⁰⁵

Should the Administrator conclude that manpower or methodological constraints threaten to delay guidelines for particular categories beyond December 31, he may attempt to demonstrate to the courts that such conditions require an extension of the deadline for specific categories.¹⁰⁶ Contentions relating to particular point source categories are to be presented as an initial matter before the District Court charged with supervision and enforcement of this court's order. The District Court will, in essence, be called on to separate justifications grounded in the purposes of the Act from the footdragging efforts of a delinquent agency.

A federal equity court may exercise its discretion to give or withhold its mandate in furtherance of the public interest, including specifically the interest in effectuating the congressional objective incorporated in regulatory legislation.¹⁰⁷ We think the court may forebear the issuance of an order in those cases where it is convinced by the official involved that he has in good faith employed the utmost diligence in discharging his statutory responsibilities.¹⁰⁸ The sound discretion of an equity court does not embrace enforcement through contempt of a party's duty to comply with an order that calls him 'to do an impossibility.'¹⁰⁹

Similar considerations apply after the issuance of an order when the defendant petitions for modification or the court considers the propriety of resorting to contempt to coerce compliance. 'Flexibility rather than rigidity has distinguished' equity jurisprudence.¹¹⁰ It would be unreasonable and unjust to hold in contempt a defendant who demonstrated that he was powerless to comply.¹¹¹ An equity court can never exclude claims of inability to render absolute performance, but it must scrutinize such claims carefully since officials may seize on a remedy made available for extreme illness and promote it into the daily bread of convenience.

Although this case has been given expedited consideration by this court, our declaration of the Administrator's primary duty under section 304(b)(1)(A) issues on the eve of the deadline for performance. We have molded our order to take account of this unusual situation in an attempt to do justice under the circumstances of this case.¹¹² Our order amounts to this. The Administrator is to publish section 304(b)(1)(A) guidelines by December 31, 1974. In the event that he makes a determination that, under the principles set forth in this opinion, a guideline should not be published for a particular category (or categories), or alternatively determines that a guideline is appropriate but that it is not feasible to meet the December 31, 1974 deadline, he may petition the District Court for a modification of the mandate and for a stay, pending disposition of the petition for modification, of the December 31 deadline for the categories involved. Our mandate contemplates that any such motion for stay will be granted pending the decision on the merits of the modification request. This ruling reflects our awareness of the need for administrative protection pending the determination of the petition for modification, and our confidence that the Administrator will make a good faith effort to discharge his primary duty and will petition for modification only in cases of genuine need. We take into account the Administrator's substantial compliance with the timetable for publication of Group I guidelines. We also contemplate that any ruling on a petition for modification will delay its effective date two weeks to permit petition to this court for extraordinary relief.

If relief is granted by the court, the issue of any shortfall in performance by the agency will become a matter for discussion within the pertinent committees and bodies of the legislature. The court will have done all that the legislature could fairly have contemplated from the judicial function of assuring executive compliance with the legislative mandate.¹¹³

We need not determine whether the general duty to publish effluent guidelines for nonsection 306 source categories by December 31, 1974, comes within the nondiscretionary duties covered by section 505(a)(2) of the Act or is more appropriately subject to court challenge under the Administrative Procedure Act as an abuse of discretion or an agency action unreasonably delayed. The distinction between these approaches tends to be abstract and conceptual. In light of our resolution of the jurisdictional issue in part I of this opinion, we will leave the parsing out of the lines separating these approaches to a later case in which the question is fully briefed and its resolution is required.

Reversed in part and remanded for further proceedings consistent with this opinion.

APPENDIX A

Federal Water Pollution Control Act Amendments of 1972

Section 301(a)&(b), 33 U.S.C. §§ 1311(a)&(b)

§ 1311. Effluent limitations--Illegality of pollutant discharges except in compliance with law

(a) 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.

Timetable for achievement of objectives

(b) 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.

Section 304(b), 33 U.S.C. § 1314(b)

§ 1314. Information and guidelines--Criteria development and publication

Effluent limitation guidelines

(b) 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, published 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(b)(1)(A), 33 U.S.C. § 1216(b)(1)(A) Categories

of sources; Federal standards of performance for new sources

(b) (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:

pulp and paper mills;

paperboard, builders paper and board mills;

meat product and rendering processing;

dairy product processing;

grain mills;

canned and preserved fruits and vegetables processing;

canned and preserved seafood processing;

sugar processing;

textile mills;

cement manufacturing;

feedlots;

electroplating;

organic chemicals manufacturing;

inorganic chemicals manufacturing;

plastic and synthetic materials manufacturing;

soap and detergent manufacturing;

fertilizer manufacturing;

petroleum refining;

iron and steel manufacturing;

nonferrous metals manufacturing;

phosphate manufacturing;

steam electric powerplants;

ferroalloy manufacturing;

leather tanning and finishing;

glass and asbestos manufacturing;

rubber processing; and

timber products processing.

Section 402, 33 U.S.C. § 1342

§ 1342. National pollutant discharge elimination system--Permits for discharge of pollutants.

(a) (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 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.

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 natigable 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:

(i) 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. Suspension of federal program upon

submission of State program; withdrawal

of approval of State program

(c) (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.

Notification of Administrator

(d) (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.

Waiver of notification requirement

(e) 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.

Point source categories

(f) 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 any distinguish among

classes, types, and sizes within any category of point

sources. Other regulations for safe

transportation, handling, carriage,

storage, and stowage of pollutants

(g) Any permit issued under this section for the discharge of pollutants into the navigable waters from a vessel or other floating craft shall be subject to any applicable regulations promulgated by the Secretary of the department in which the Coast Guard is operating, establishing specifications for safe transportation, handling, carriage, storage, and stowage of pollutants.

Violation of permit conditions; restriction or prohibition

upon introduction of pollutant by source not

previously utilizing treatment works

(h) In the event any condition of a permit for discharges from a treatment works (as defined in section 1292 of this title) which is publicly owned is violated, a State with a program approved under subsection (b) of this section or the Administrator, where no State program is approved, may proceed in a court of competent jurisdiction to restrict or prohibit the introduction of any pollutant into such treatment works by a source not utilizing such treatment works prior to the finding that such condition was violated.

Federal enforcement not limited

(i) Nothing in this section shall be construed to limit the authority of the Administrator to take action pursuant to section 1319 of this title.

Public information

(j) A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction.

Compliance with permits

(k) Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1312, 1316, 1317, and 1343 of this title, except any standard imposed under section 1317 of this title for a toxic pollutant injurious to human health. Until December 31, 1974, in any case where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation (1) section 1311, 1316, or 1342 of this title, or (2) section 407 of this title, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application. For the 180-day period beginning on October 18, 1972, in the case of any point source discharging any pollutant or combination of pollutants immediately prior to such date of enactment which source is not subject to section 407 of this title, the discharge by such source shall not be a violation of this chapter if such a source applies for a permit for discharge pursuant to this section within such 180-day period.

Section 505, 33 U.S.C. § 1365

§ 1365. Citizen suits--Authorization; jurisdiction

(a) 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.

Notice st(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