Manatee County, Florida v. Russell E. Train, as Administrator of the United States Environmental Protection Agency

583 F.2d 179, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20851, 12 ERC (BNA) 1436, 1978 U.S. App. LEXIS 7971, 12 ERC 1436
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 3, 1978
Docket76-4115
StatusPublished
Cited by13 cases

This text of 583 F.2d 179 (Manatee County, Florida v. Russell E. Train, as Administrator of the United States Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manatee County, Florida v. Russell E. Train, as Administrator of the United States Environmental Protection Agency, 583 F.2d 179, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20851, 12 ERC (BNA) 1436, 1978 U.S. App. LEXIS 7971, 12 ERC 1436 (5th Cir. 1978).

Opinions

RONEY, Circuit Judge:

In April 1971, plaintiff Manatee County, Florida, was awarded a federal grant of 33% of the cost of construction of a sewage treatment plant. In 1972, a statutory amendment increased the possible federal participation to 75% of the cost, conditioned on a state board certification as to need. The sole issue in this case of first impression is whether a district court may properly order the Administrator of the Environmental Protection Agency to pay the increase from 33% to 75% on the basis of a state board certificate which, though regular on its face, is considered to be wrong by the Administrator.

In this case, the district court ruled that if the state board certifies in the statutory language, the Administrator is powerless under the law to challenge the correctness of the certification. We affirm.

In 1971 Manatee County applied for a federal grant for sewage treatment works construction under the Federal Water Pollution Control Act. In April of 1971 the application was approved for a grant of 33% of the cost of construction, in accordance with the then extant provision of the statute governing the federal share, 33 U.S.C. § 1158 (1970).

Thereafter, in 1972, the Act was amended by the Federal Water Pollution Control Act Amendments of 1972 [Pub.L. No. 92 — 500, 86 Stat. 816, 33 U.S.C. §§ 1251 et seq. (Supp. II 1972)]. Subsection 202(a) of the 1972 [181]*181Amendments [33 U.S.C. § 1282(a) (Supp. II 1972)] provided that the federal share of all subsequent grants would be 75%. Subsection 202(b) [33 U.S.C. § 1282(b) (Supp. II 1972)], directly involved in this appeal, provided that a specified class of grants made prior to July 1, 1971 could be increased to 75%.

Since the Federal Water Pollution Control Act has been further amended by the Clean Water Act of 1977 [Pub.L. No. 95-217, 91 Stat. 1611, codified at 33 U.S.C.A. §§ 1251 et seq. (Supp.1978)], we have set out in the notes the language of § 1282(a)1 and § 1282(b)2 prior to the 1977 Amendments. All references in this opinion are to the Act as it appeared in 33 U.S.C. §§ 1251 et seq. (Supp. II 1972) at the time suit was brought; references to the Act as amended in 1977 and currently in force are clearly noted as such and are cited to U.S.C.A.

Manatee County’s grant fell within the class of grants eligible for increase to 75%. Therefore, Manatee County requested that its grant be increased to 75% under the provisions of § 1282(b). This section provided that grants such as Manatee’s approved after January 1, 1971 and before July 1, 1971, “shall, upon the request of the applicant, be increased” to 75%, if two conditions are met, only the second of which is contested here. That condition requires a State water pollution control agency certificate that the quantity of available ground water will be insufficient without the project. In support of its request, Manatee County submitted the certification of the Florida Pollution Control Board, which had held hearings and certified in the statutory language that

The quantity of available ground water is and will be insufficient, inadequate, or unsuitable for public use, including the ecological preservation and recreational use of surface water bodies, unless publicly owned treatment works return effluents to the ground after adequate treatment in Manatee County.

The EPA rejected the request. It concedes that all other requirements and conditions have been met, and that the appropriate state agency has certified in the statutory language of § 1282(b)(2). It also concedes that the action of the Florida Board was duly and regularly taken, and that the certification was not fraudulent or criminal. [182]*182It explained to Manatee County, however, that on the basis of analyses by the EPA’s experts, it had concluded that the quantity of available ground water was not insufficient, and that because of certain geological conditions in Florida, the project could not possibly improve ground water.

Manatee County then brought the present action in the nature of mandamus in the district court. Both parties moved for summary judgment. The district court denied the Government’s summary judgment motion and granted summary judgment for Manatee County, citing Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

Congress provided in § 1282(b) that the EPA “shall ” increase project grants to 75% if two conditions are met. “Use of the word ‘shall’ generally indicates a mandatory intent unless a convincing argument to the contrary is made.” Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir. 1977). See generally, 73 Am.Jur.2d Statutes §§ 22-25 (1974). It is necessary to look to the wording of a statute, its purposes, and its legislative history to see if any contrary intent is to be found. In the present case, not only is there no indication to the contrary, but the indications show that Congress did intend this to be a mandatory duty.

Looking to the specific language employed in Subchapter II of the Act, “Grants for Construction of Treatment Works,” 33 U.S.C. §§ 1281-1292 (Supp. II 1972), it is at once apparent that Congress knew the difference between mandatory and discretionary language. Where Congress wanted to give discretion to the Administrator of the EPA, Congress employed the term “is authorized.” For example, the basic granting provision provides that

The Administrator is authorized to make grants to any State, municipality, or intermunicipal or interstate agency for the construction of publicly owned treatment works.

33 U.S.C. § 1281(g)(1) (Supp. II 1972) (emphasis added). The “is authorized” language is employed many times in Subchap-ter II where the Administrator is to have discretion. See 33 U.S.C. §§ 1281(g)(4), 1283(e), 1288(g) (Supp. II 1972). The 1977 Amendments also frequently used the “is authorized” language to give discretionary power. See U.S.C.A. §§ 12810), 1282(a)(3), 1284(b)(6), 1285(g)(1), 1285(g)(2) (Supp. 1978).

In addition, the 1977 Amendments use the term “may” in several sections where discretion is to be employed. See 33 U.S.C.A. §§ 1281(h), 1283(a), 1284(b)(3), 1284(b)(5), 1285(g)(2), 1285(h) (Supp.1978). The fact that in the 1977 Amendments Congress distinguished “shall” from “may” shows that in Subchapter II of the Act, Congress used “shall” in its everyday sense, as imposing a mandatory duty on the Administrator. See Train v.

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583 F.2d 179, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20851, 12 ERC (BNA) 1436, 1978 U.S. App. LEXIS 7971, 12 ERC 1436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manatee-county-florida-v-russell-e-train-as-administrator-of-the-united-ca5-1978.