(dissenting) — Following the lead of the United States District Court in United States v. ITT Rayonier, Inc., 10 E.R.C. 1869 (W.D. Wash. 1977), per McGovern, J., the majority characterizes the provisions in footnote f as "in the nature of a consent decree or a negotiated settlement." In United States v. Armour & Co., 402 U.S. 673, 681-82, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971), in discussing the scope of such a provision, the Supreme Court stated:
Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won *695had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.
(Footnote omitted.)
As the district court noted, under Armour it is up to the court to interpret footnote f without regard to any claim that there is an issue of fact with respect to the intention of the parties.
The district court correctly analyzed footnote f without regard to the intention of the parties and reached an opposite and I believe more supportable result than does the majority:
It is the opinion of the Court that footnote f affects only the final effluent limitations that must be achieved and not the compliance schedule. By its express terms, footnote f provides only that the "limits will be modified to be consistent with the applicable final effluent guidelines" and not that the compliance schedule will be modified as these guidelines are announced. Additionally, the footnote is to Special Condition S3 which is limited to "Final Effluent Limitations and Monitoring Requirements." A different section. Special Condition S4 controls all questions regarding the compliance schedule. If footnote f affected the schedule of compliance, it would make reference to that section or expressly state that it otherwise alters the deadlines set out there.
This construction of footnote f is consistent with the provisions of the Federal Water Pollution Act. Without reaching the Government's contention that the July 1, *6961977 deadline is mandatory, 33 U.S.C. § 1311(b)(1)(A) creates a strong presumption that the deadline would not be modified without a clear agreement to that effect. Moreover, it is unlikely that an NPDES permit would satisfy 33 U.S.C. § 1342 if it had an indefinite and potentially unenforceable compliance schedule, as would happen in this case if the Court accepted the defendant's strained construction of the footnote.
Defendant raises a strong point that the obvious purpose in bargaining for footnote f was that it did not want to have to build costly facilities to meet standards that might be subsequently relaxed or even rejected by federal court action. But as inexcusable as the Government's delay in promulgating standards has been, that purpose does not justify this Court in interpreting the footnote contrary to its express terms.
The EPA's delay in promulgating effluent guidelines does not entitle Defendant to an extension of the July 1, 1977 deadline. United States Steel Corp. v. U.S.E.P.A., Nos. 76-1425 and 76-1616 [10 ERC 1001] (7th Cir., May 13, 1977). See also, Train v. NRDC, 421 U.S. 60 [7 ERC 1735] (1975).
The result reached by the majority renders meaningless the standards and the compliance schedule, S4, set forth in the permit. I find inconceivable the proposition that these standards were without purpose. They were established by agreement between the Department of Ecology and ITT Rayonier as the level of permissible discharge which would be in effect prior to the Environmental Protection Agency's (EPA) promulgation. Although there did exist uncertainty as to their relationship to the new EPA standards, this is the bargain that was struck between the parties. In return for the privilege of continued operation, ITT Rayonier agreed to comply with these standards until the new federal standards came forth. Yet the majority does not hesitate to deprive the State of the benefit of its bargain.
I find it difficult to accept that the State and ITT Rayonier intended to postpone indefinitely construction of the pollution control facilities. While the footnote in question, without equivocation, gives ITT Rayonier the right to modification of the state standards so as to coincide with *697the federal standards, nothing in the record indicates the parties agreed to an open-ended delay of construction until the finalization of federal standards on appeal. It can be assumed only that the standards set forth in section S3 of the permit were to be complied with. Further, nothing in the schedule of compliance in section S4 indicates that the parties contemplated a delay in construction until such time as the EPA released its final limitations.
To accept the position of the majority turns the entire permit process into an elaborate and meaningless charade. If in fact the parties intended nothing to be done until the question of the federal standards was settled, it seems strange that this was not the end of the matter. Instead, an elaborate 11-page NPDES permit was issued, including the compliance schedule S4. Under these circumstances, it is inconceivable to me that both parties did not expect that the compliance schedule, S4, was to be followed.
Finally, in Republic Steel Corp. v. Train, 557 F.2d 91 (6th Cir. 1977), a case cited by the majority, the court expressly excluded from its holding those situations in which state agencies issued NPDES permits in the absence of federal guidelines prior to December 31, 1974. This was the situation in this case.
The majority's conclusion that the Pollution Control Hearings Board was "clearly erroneous" in refusing the stay of compliance requested by ITT Rayonier is unsupportable on this record.
Accordingly, I dissent.
Rosellini and Hamilton, JJ., concur with Dolliver, J.
Reconsideration denied March 26, 1979.