Respondents Brief — Arkansas v. Oklahoma

Supreme Court brief1992

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QUESTIONS PRESENTED

1. Whether the Clean Water Act requires a_ point

source discharger to comply with EPA-approved water

quality standards of affected downstream states in a per-

mit proceeding under the National Pollutant Discharge

Elimination System (NPDES) ;

2. Whether the EPA failed to properly consider the

existing degradation in the Illinois River in Oklahoma

when considering Fayetteville’s application for an

NPDES permit to discharge additional pollutants to that

River, and as a result of this failure, incorrectly applied

Oklahoma’s standards prohibiting any degradation of that

River ; and

3. Whether the Court of Appeals correctly applied

Oklahoma’s EPA-approved standards, prohibiting any

degradation of a state-designated scenic river, to a situa-

tion where the River was already degraded, and where

EPA had found that additional pollutants of the kind

that had contributed to the existing degradation would

reach the River from the new discharge.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED 0000...

TABLE OF AUTHORITIES .............000.0..0.00000.........

STATEMENT ........

SUMMARY OF THE ARGUMENT .....

ARGUMENT ..

1. EPA FAILED TO CONSIDER THE CUR-

RENTLY DEGRADED STATUS OF THE

ILLINOIS RIVER IN ITS APPLICATION OF

THE OKLAHOMA STANDARDS TO THE

FAYETTEVILLE NPDES PROCEEDING,

AND AS A RESULT OF THIS FAILURE,

EPA ADOPTED AN UNREASONABLE IN-

TERPRETATION THAT WAS PROPERLY

SET ASIDE BY THE TENTH CIRCUIT

A. The Clean Water Act Requires Compliance

With Federally-Approved Water Quality

Standards of Downstream States .........

B. While EPA Recognized That A Discharger

Must Comply With EPA-Approved Water

Quality Standards of Downstream States to

Carry Out The Purposes of the Clean Water

Act, In This Case EPA Provided An Unrea-

sonable Interpretation of the Oklahoma

Standards That Undermined the Act’s Ob-

jectives .

C. EPA’s Interpretation Of The Oklahoma

Standards was Unreasonable Because The

Clean Water Act Does Not Require A Show-

ing Of Harm For A Discharge To Be Pro-

hibited And EPA Failed To Provide Any

Explanation As To Why In This Case Such

A Showing Would Be Required ..........00.00......

(iii)

TABLE OF CONTENTS—Continued

Page

D. EPA’s Interpretation Ignored The Impor-

tance Of The Antidegradation Standard For

An Outstanding National Resource Water _ 26

ll. THE TENTH CIRCUIT FORMULATED THE

CORRECT STANDARD TO DETERMINE

WHETHER FAYETTEVILLE’S PERMIT TO

DISCHARGE INTO THE ILLINOIS RIVER

WOULD COMPLY WITH OKLAHOMA’S

WATER QUALITY STANDARDS 29

A. Oklahoma Has Interpreted Its Standards In

This Proceeding To Prohibit Any Addition

of Pollutants to the Illinois River sis 31

B. Oklahoma’s Interpretation Was Confirmed

By EPA’s Application of the Standards To

An Oklahoma-based Discharger To The IIli-

ey celainthitetttahnneihiditnciinntcapesatineneenisictstenes 34

C. Oklahoma’s Interpretation Of Its Antide-

gradation Standard Is Consistent With the

Interpretation That EPA Has Provided For

, EERIE AR SRR eons Cae saasiea 35

D. Oklahoma’s Interpretation Is Consistent

With The Interpretation Provided By the

Arkansas-Oklahoma Arkansas River Com-

I ii 37

Ill. THE TENTH CIRCUIT ACTUALLY NAR-

ROWED ITS APPLICATION OF THE OKLA-

HOMA STANDARDS IN ITS HOLDING AS

COMPARED TO THE BROAD MEANING

FOUND IN EPA’S REGULATIONS 39

IV. THE TENTH CIRCUIT CORRECTLY RULED

THAT THE PERMIT WAS UNLAWFUL .__. 41

o_O TOE TR NE oro 42

TABLE OF AUTHORITIES

CASES Page

Bureau of Alcohol, Tobacco & Firearms v. Fed-

eral Labor Relations Auth., 464 U.S. 89 (1983) .. 41

C & H Sugar Co. v. EPA, 553 F.2d 280 (2d Cir.

| TRS e ne et ann eaten le Pee Se 25

Champion Int'l Co. v. EPA, 648 F. Supp. 1390

(W.D.N.C. 1986), vacated, 850 F.2d 182 (4th

I, ITI iss rrciiteti ieee diaiecnntniaouabennases 18

Champion Int'l Corp. v. EPA, No. 87-3529 (4th

Cir. 1988) ... we

Chemical Mfrs. “Ass'n v. . EPA, 870 F.2d 177 (5th

Cir. 1989), cert. denied, —— US. ——, 110

J & ) — ees 24

Chevron, United States, Ine. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, reh’g de-

nied, 468 U.S. 1227 (1984) 18, 19, 21

Citizens to Preserve Overton Park v. Volpe, 401

RE ee a 5

City of Milwaukee v. Illinois, 451 U.S. 304 (1981). 17

EJ. DuPont DeNemours & Co. v. Train, 430 U.S.

112 (1977) . 36

FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976) 24, 38

FTC v. Indiana Fed. of Dentists, 476 U.S. 447

a 42

Homestake Mining Co. v. EPA, 477 F. Supp. 1279

EERE SES erence ar cree oem 4

Hudson River Fishermen's Ass'n v. City of New

York, 751 F. Supp. 1088 (S.D.N.Y. 1990) 24, 25

International Paper Co. v. Ouellette, 479 U.S. 481

(1987) . : phe 19

Miller v. Youakim, 440 Us. 125 (1979) - 37

Montgomery Envtl. Coalition v. Costle, 646 F.2d

568 (D.C. Cir. 1980) . i: 4, 5, 12, 43

Motor Vehicle Mfrs. Ase’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983) ......... 41

NLRB v. Brown, 380 U.S. 278 (1965) - “ae 41

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

(D.C. Cir. 1982) ......... cn a al ae a a 16

Natural Resources Defense Couneil v. EPA, 822

F.2d 104 (D.C. Cir. 1987) —............... si seaeiiaiialatial 3, 42

TABLE OF AUTHORITIES—Continued

Page

Natural Resources Defense Council, Inc. v. Costle,

568 F.2d 1869 (D.C. Cir. 1977) ......................------ 22

Navistar Int'l Transp. Corp. v. EPA, 858 F.2d 282

(6th Cir. 1988), cert. denied, 490 U.S. 1039

REE ES SS RS an oa ec 31

New Jersey v. New York, 283 US. 336 (1930)... 43

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) 43

Sierra Club v. Union Oil Co. of California, 813

F.2d 1480 (9th Cir. 1987), vacated, 485 U.S. 931

EERE ETERS eae aecac noms eS Ae 25

Student Pub. Interest Group v. P.D. Oil & Chem.,

627 F. Supp. 1074 (D.N.J. 1986) 0... o 25

Udall v. Tallman, 380 U.S. 1 (1965) 31

United States v. Larionoff, 431 U.S. 864 (1977)... 37

United States v. Shimer, 367 U.S. 374 (1961)... 21

United States v. Standard Oil Co., 384 U.S. 224

ARES EEN 2 I Te eS a 43

STATUTES AND REGULATIONS

Clean Water Act, as amended, 33 U.S.C. §§ 1251-

1387 (1988)

Section 101, 33 U.S.C. § 1251 0... Eee 2

Section 101 (b), 33 U.S.C. § 1251 (b) .......... eae 4

Section 108, 88 U.S.C. § 1258 ....................0.000..... 37

Section 301, 33 U.S.C.§ 1311... 3, 40

Section 301(b) (1) (C), 33 U.S.C. § 1311(b)

RRR SESE a or een ein 3,6,11,17

Section 302 (c), 33 U.S.C. § 1312(c) ................. 4

Section 308, 38 U.S.C. § 1818 .............................. 11

Section 303 (c), 33 U.S.C. § 1313(c) en 4

Section 303 (c) (3), 33 U.S.C. § 1313(c) (3) ..... 4

Section 303(d) (4) (B), 33 U.S.C. § 1313(d)

RE SS ee 28

Section 401 (a) (1), 33 U.S.C. § 1341 (a) (1)... 17

Section 401 (a) (2), 33 U.S.C. § 1341 (a) (2). 18

Section 402, 33 U.S.C. § 1342 ........ ee. 4

Section 402(b) (1) (A), 33 U.S.C. § 1342(b)

EEE a 18

Section 402 (b) (3), 33 U. S.C. § 1342(b) (3). 18

vii

TABLE OF AUTHORITIES—Continued

Section 402 (b) (5), 33 U.S.C. § 1342(b) (5) .... 18

Section 402(d) (2) (B), 33 U.S.C. § 1342(d)

ESI REE 6 A on 18

Section 502 (6), 33 U.S.C. § 1862(6) 00... 3, 24

Section 502 (11), 33 U.S.C. § 1362(11) 0.0... 3

Section 502 (19), 33 U.S.C. § 1862(19) 0... 24

40 C.F.R.

ES ee aa 18

EE 18

I. cecasesenenenensnness 18

TT 5

RR ee . 6,20

46 C.P.R. § 181.12 (a@)........................ a 6

kk BG FS | enna en 5

40 C.P.R. $ 181.12(a) (2) .................................... 5

se OID ecccccccccecsnsscccsscesecessocs _ 5, 6, 35

United States Code

16 U.S.C. § 1271 (1988)... REAR Ee Dae OT 10

16 U.S.C. § 1276(40) (1988) 0. 10

A 25

33 U.S.C. § 1160(c) (1) (1970) 000... 19

Public Laws

Pub. L. No. 97, 69 Stat. 184 (1955) 000. 37

Arkansas Statutes

ARK. STAT. ANN. §§ 15-23-401, et seq... 37

Oklahoma Statutes

OKLA. STAT. tit. 82, § 1421 (1981) .......... .. 87, 38

OKLA. STAT. tit. 82, § 1452(a) (1981) e 9

Oklahoma Water Quality Standards

Section 3 ards te Bae eae aaliaas adaaiidiieaneelbeidesaibl 10

a ERE CS TR > ee 10

Section 7.11 SE SE ee A ciiete 33

LEGISLATIVE MATERIALS

40 Fed. Reg. 55.334, 55,336 (1975) ..................0000...... 27

41 Fed. Ree_47.777 (1976) reprinted in ENV’T

Retr. (BN) 31:5121 (May 11, 1979) .............. 35

48 Fed. Reg. 51.399, 51,403 (1983) ....... snsnmandasetiniainneh 6, 27

viii

TABLE OF AUTHORITIES—Continued

H.R. Rep. No. 911, 92nd Cong., 2d Sess., reprinted

in 2 Sen. Comm. on Public Works, 93rd Cong.,

lst Sess., LEGISLATIVE HISTORY OF THE WATER

POLLUTION CONTROL AMENDMENTS OF 1972

EE AEE Seva a ene aa ee

S. Rep. No. 10, 89th Cong., 1st Sess., p. 10, re-

printed in SEN. RPtTs., Misc. RPTS. ON PUBLIC

SS Ee

S. Rep. No. 50, 99th Cong., Ist Sess. (1985), re-

printed in 2 Sen. Comm. on Public Works, 100th

Cong., 2d Sess., LEGISLATIVE HISTORY OF THE

WATER QUALITY ACT OF 1987, 1425 (1988) .

S. Rep. No. 370, 95th Cong., Ist Sess. (1977),

reprinted in 1977 U.S. Cope Conc. & AD. NEws

A Fe a = Se

S. Rep. No. 414, 92nd Cong., 2d Sess. (1972), re-

printed in 1972 U.S. Cope Conc. & AD. NEws

SE EERE a ESI San SE I oe Te

S. Rep. No. 414, 92nd Cong., 2d Sess. (1972), re-

printed in 2 Sen. Comm. on Public Works, 93rd

Cong., Ist Sess., LEGISLATIVE HISTORY OF THE

WATER POLLUTION CONTROL AMENDMENTS OF

yp72 (1973)

MISCELLANEOUS

EPA, Memorandum from J. Rogers, Associate

General Counsel, Water Quality and Solid Waste

Division, to K. MacKenthum, Director, Criteria

and Standards Division (August 15, 1979)

EPA Questions and Answers on Antidegradation

(August 1985) ..

EPA Questions and “Answers | on Water Quality

Standards, July 12, 1979, reprinted in ENvV’T

Retr. (BNA) 31:5152........ er eee,

EPA Region I, Guidance for Antidegradation Pol-

icy Implementation for High Quality Waters

| STRATE ER renee Soa

Page

TABLE OF AUTHORITIES—Continued

Page

Gaba, Federal Supervision of State Water Quality

Standards Under the Clean Water Act, 36 VAND.

SS En 29

Letter from W. Ruckelshaus, December 31, 1971,

reprinted in 1 1972 LEGISLATIVE HISTORY OF THE

WATER POLLUTION CONTROL AMENDMENTS OF

EG, ee i ean ne 17

Motion of EPA for Summary Judgment, Champion

Int'l, Inc. v. EPA, 648 F. Supp. 1390 (W.D.N.C.

eet eee a Oe 31

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1262

STATE OF ARKANSAS, et al.,

‘ Petitioner

STATE OF OKLAHOMA, et al.

No. 90-1266

ENVIRONMENTAL PROTECTION AGENCY,

. Petitioner

STATE OF OKLAHOMA, et al.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF RESPONDENTS

THE STATE OF OKLAHOMA,

THE OKLAHOMA SCENIC RIVERS COMMISSION,

THE OKLAHOMA POLLUTION CONTROL

COORDINATING BOARD AND

SAVE THE ILLINOIS RIVER (S.T.LR.)

STATEMENT

Introduction. Fayetteville, Arkansas seeks to achieve

its water quality goals at Oklahoma’s expenses Fayette-

ville’s old water treatment plant discharged all of its

treated effluent into the White River in Arkansas. By

the early 1980s, the White River was experiencing water

quality problems. Moreover, in 1984 Arkansas adopted

more protective water quality standards for the White

River. Fayetteville decided to build a new, more modern

plant. But Arkansas could not achieve its goal of improv-

ing the quality of the White River up to the level to

satisfy the new 1984 standards if Fayetteville discharged

all of its effluent to that river. So Fayetteville asked the

EPA for permission to transport half its discharge to

another river—the Illinois River—which flows from

Northwestern Arkansas into Oklahoma.

Even when it applied for a grant to build the new

plant, Fayetteville informed EPA that the Illinois River

in Oklahoma was already degraded, largely by phospho-

rous and other pollutants originating in other Arkansas

communities. Fayetteville told EPA that if it got its

permit, the new discharge to the Illinois River would

further degrade the condition of the River in Oklahoma

and violate Oklahoma’s water quality standards. And,

after a hearing on Fayetteville’s permit application where

EPA received unrefuted evidence (including photo-

graphs) that the Illinois River was degraded, EPA en-

tered a finding that up to a fourth of all the new pol-

lutants discharged into the River would be available as

food for additional algae growth in Oklahoma. Never-

theless, EPA issued the permit. Oklahoma asks this Court

to affirm a Tenth Circuit ruling that held the permit un-

lawful under the Clean Water Act and to protect the

already degraded Illinois River from further pollution

from Fayetteville.

Legal Framework. The Clean Water Act has as its

goal the “restoration and maintenance of the chemical,

physical and biological integrity of the Nation’s waters,”

through the elimination of the discharge of pollutants.

CWA §101.' “Pollutant” is defined broadly by Congress

~ 1 By its choice of the word “integrity,” Congress intended to

convey “pristine.” “In those water bodies which are not pristine,

it should be the national policy to take those steps which will re-

—eESeeEeE=Eeeeeeeeeee—— ee

to include “industrial, municipal, and agricultural waste

discharged into water.” CWA § 502(6).* To achieve its

goal, Congress imposes a nationwide prohibition on the

discharge of any pollutant. CWA § 301. The only ex-

ceptions to this no discharge prohibition arise when an

aspiring discharger can prove that it can satisfy statutory

requirements known as “effluent limitations,” which are

restrictions on “the quantities, rates, and concentrations”

of substances discharged from point sources. CWA

§§ 301, 502(11). There are two types of effluent limi-

tations.

First, the discharger must satisfy technology-based

effluent limitations, which the Act requires the EPA to

promulgate. Second, a permit applicant must show that

it can comply with “any more stringent” limitations

“required to implement” EPA-approved water quality

standards. CWA §301(b)(1)(C) (emphasis added).

Water quality standards are key to achieving the Act’s

goals. Because technology-based limitations take into, ac-

count only existing technology, it would be possible for a

discharger to satisfy them, and nevertheless harm the

quality of the receiving waters, depending on the nature

of his discharge and the aquatic qualities of the receiving

stream. Water quality standards, on the other hand, are

based on the amounts and kinds of pollutants in the

waters to which discharges flow as well as on desired

water quality. Natural Resources Defense Council, Inc.

v. EPA, 822 F.2d 104, 109-10 (D.C. Cir. 1987). Limita-

tions that must be imposed to implement water quality

standards need not be based on technology, and they thus

sult in change towards that pristine state in which the physical,

chemical, and biological integrity of the water body can be said to

exist.” S. Rep. No. 414, 92nd Cong., 2d Sess. (1972), reprinted in

2 Sen. Comm. on Public Works, 93rd Cong., Ist Sess., LEGISLATIVE

HISTORY OF THE WATER POLLUTION CONTROL AMENDMENTS OF 1972,

at 1494 (1973) (hereinafter, 1972 Lxecis. HIST.).

2 The Clean Water Act, 33 U.S.C. §§ 1251-1387 (1988), is cited

by section number in this brief. Parallei citations to the United

States Code are provided in the Table of Authorities.

fine-tune the permit process to insure protection of water

quality, and, ultimately, realization of the Act’s goals.

Both technology based effluent limitations, and limitations

based on mandatory compliance with EPA-approved

water quality standards, are enforced through an NPDES

permit proceeding. CWA § 402. If an applicant is un-

able to demonstrate that it will implement water quality

standards, the “no discharge” prohibition applies and the

permit must be denied, even if the applicant is in compli-

ance with technology-based limitations. See Montgomery

Envtl. Coalition v. Costle, 646 F.2d 568, 588 (D.C. Cir.

1980) (Congress placed great reliance on the permit

process as the means of finally achieving water quality

standards. }.

States have primary responsibility to “prevent, reduce,

and eliminate pollution.” CWA §101(b). While EPA

develops the technological guidelines that establish na-

‘tional-minimum requirements for pollution control, the

states adopt standards specifically tailored to the needs

of individual bodies of water.* At least once every three

years, each state must hold public hearings to adopt

standards that “enhance the quality of water and serve

the purposes of this Act.” CWA § 303(c). They are

then submitted to the EPA Administrator, who approves

them if “consistent with the requirements of the Act.”

When approved, the standards “shall thereafter be the

water quality standard[{s] for the applicable waters of

the State.” CWA § 303(c) (3). EPA may not disapprove,

or subsequently soften, standards because they are more

protective of water quality than the technological limita-

tions. The Act encourages states to “require purer

water,” and to “embody this judgment in binding ‘water

3 The EPA is also authorized to set effluent limitations based on

water quality when technology-based limitations do not suffice to

achieve a minimum quality of water. However, the imposition of

such limitations does not delay or relieve a discharger from compli-

ance with more protective state water quality standards approved

by EPA pursuant to CWA § 303. CWA § 302(c), See Homestake

Mining Co. v. EPA, 477 F. Supp. 1279, 1285-86 (D.S.D. 1979).

quality standards’ that must be respected in the drafting

of a permit [under] § 301(b)(1)(C).” Montgomery

Envtl. Coalition v. Costle, 646 F.2d at 574-75.

Each state’s water quality standards must have at

least three components: (1) designated uses to be

“achieved and protected,” e.g., warm water fishery; (2)

water quality criteria, expressed in numerical or nar-

rative form, which reflect the limits on the quantities

of pollutants in a body of water that are necessary to

protect designated uses; and (3) an antidegradation pol-

icy. 40 C.F.R. § 131.10-.19 (1990). The purpose of this

antidegradation policy ts to-insure protection of rivers

whose quality exceeds that nécessary to protect its desig-

nated uses. Since the Illinois River in Oklahoma is

such a river, this policy is of critical relevance to this

proceeding.

The structure of the antidegradation policy is like a

pyramid. At the base, states must insure the level of

water quality necessary to protect existing uses. Jd. at

§131.12(a)(1). At the next level, EPA mandates a

higher level of protection for waters whose quality ex-

ceeds that necessary to support propagation of fish, shell-

fish, wildlife and recreation. The quality of these waters

must be maintained and protected, unless the state makes

a determination that allowing lower water quality is nec-

essary to accommodate economic and social development.‘

Finally, for waters at the top of the pyramid, no degra-

dation from a point source may be permitted under any

circumstances, even to accommodate economic develop-

ment. These waters, designated by the states, are high .

quality waters that constitute “an outstanding National

resource, such as waters of National and State parks and

wildlife refuges and waters of exceptional recreational

or ecological significance.” (“ONRW” waters) Id. at

* But even when a state makes such a determination, EPA re-

quires the state to fully protect existing uses, and to achieve the

highest statutory and regulatory requirements for new and existing

point sources. Jd. at § 131.12(a) (2).

— >)

;. ,

$ 131.12(a)(3).° EPA projects this three-tiered system

onto the states by requiring each state to adopt a policy

that “at a minimum” is consistent with it. 40 C.F-.R.

§ 131.12(a).°

The Act places upon the states primary responsibility

to restore the integrity, the natural state, of the Nation’s

waters. Since many rivers flow across state lines, how-

ever, state lines must not stand as artificial barriers to

this goal, as would occur if dischargers were able to

achieve their desired level of water quality by violating

the water quality standards of downstream states. As

recognized by both EPA and the court of appeals in this

proceeding, the Act insures that this does not happen by

requiring that dischargers unequivocally comply with

EPA-approved water quality standards of affected down-

stream states. CWA § 301(b)(1)(C). First Order on

Petition For Review (EPA), P.A. 115a-121la, Court of

Appeals, P.A. 29a-43a.’

This proceeding. Fayetteville operated a waste water

treatment plant, constructed in 1969, which discharged all

its effluent into the White River in Arkansas. This dis-

charge over the years contributed to water quality prob-

lems, particularly algae growth due to the release of

SEPA requires states to “maintain and preserve” these waters.

Id. at § 131.12(a)(3). Until 1983, EPA regulations provided that

“no degradation” would be permitted in an ONRW. The language

was changed in 1983 to permit temporary activities such as con-

struction projects. EPA intends through the amended language to

continue the prohibition of any degradation of these waters by a

point source or other permanent source. 48 Fed. Reg. 51,399, 51,408

(1983).

*EPA also requires that each state insure that its standards

provide for the “attainment and maintenance of water quality stand-

ards of downstream waters.” Jd. at §131.10(b). The converse

is not true: Downstream states need not lower their standards to

accommodate upstream states.

7In this brief, the Appendix to the Petition for Writ of Cer-

tiorari will be cited “P.A.”, the Joint Appendix cited as “J.A.”, and

individual exhibits to the administrative proceeding by index num-

per, as listed in the Joint Appendix, e.g., “R., OK-5.”

phosphorous and other nutrients. Rejecting the alterna-

tive of land application, which would not impact on the

quality of any river, Fayetteville decided to build a new

treatment plant.

Arkansas’ 1981 Water Quality Standards required a

dissolved oxygen concentration of only 4.0 milligrams per

liter for an effluent dominated river like the White

River. That standard would probably be met if all of

Fayetteville’s effluent from the new plant were dis-

charged to the White River. In 1984 the State of Ar-

kansas proposed upevrading this standard to 6.0 milli-

grams per liter. That revised standard would be violated

if al' the effluent from the new plant were discharged to

the White River. R., B-10, @ NPDES Permit Adminis-

trative Record (hereinafter, NPDES Adm. Rec.) 3942-45.

Even though the new plant incorporated upgraded tech-

noloey, Fayetteville’s split flow proposal originated in its

own recognition that the effluent would contain such

quantities of pollutants as to violate water quality stand-

ards in the White River.

Fayetteville sought, and eventually obtained, an

NPDES permit to ship half of the new plant’s total

effluent to the Illinois River, up to 6.1 million gallons a

day. J.A. 66, 84. The effluent is transported via a series

of tributaries and reaches the Illinois River about twenty-

two miles upstream from the Oklahoma state line. The

River then flows into Oklahoma, crossing the state line

at a smal! lake, Lake Frances—a shallow flow-through

reservoir—from which it then flows in a southerly direc-

tion to Tenkiller Ferry Reservoir (Lake Tenkiller), be-

low Tahlequah, Oklahoma.“ Arkansas’ water quality

standards for the Illinois River, as recognized by the

EPA, “do not contain a prohibition against new or in-

creased point source discharges.” R., B-10, 2 NPDES

* Due largely to increasing algae growth since the time of the

permit proceedings, Lake Frances’ capacity to act as a reservoir

of any kind has been virtually eliminated.

Adm. Rec. 482. The River thus provides Fayetteville a

conduit whereby it discharges without violating Arkan-

sas’ standards.

But although a state designated scenic river, for which

EPA had approved standards requiring the highest level

of protection, the Illinois River in Oklahoma was de-

graded, even before EPA permitted the new discharge.

P.A. 55a-65a. When Fayetteville sought a construction

grant for the new plant, it advised the EPA of the

River’s already degraded condition: |

[T]he stream is not a pristine body of water; nutri-

ent loadings from nonpoint sources and municipal dis-

charges do adversely impact the Illinois River under

present conditions, giving rise to high algae produc-

tivity and some dissolved oxygen problems.

{L]ake Frances, a shallow flow-through reservoir, is

highly eutrophic, as evidenced by extensive growths

of macrophytes and filamentous algae. .. . {B]ased

on the information so far available, it does not ap-

pear to act as an effective nutrient trap. . . The

data suggest that the Lake receives very high lcad-

ings of both nitrogen and phosphorous and, further,

that these nutrients are flushed through the Lake be-

fore complete biological uptake can occur.

Ultimately, the nutrients and the nutrient-stimulated

organic matter is washed downstream [from the II-

linois River Basin of Arkansas], where it enriches

the Illinois River in Oklahoma. This results in de-

terioration of stream quality in Oklahoma.

201 Facilities Plan Environmental Information Docu-

ment for the City of Fayetteville (January 1984) (here-

inafter, Fayetteville Environmental Information Docu-

ment), R. Ark.-6, pp. 2-20, 2-22, 2-28. Fayetteville then

advised the EPA of the consequences if it obtained per-

mission to discharge into the Illinois River:

- eee ee On ee ee

The total nutrient loading to Oklahoma would in-

crease, either directly or through scour of enriched

sediments.

These changes would be considered degradation of

water quality and would not be consistent with Okla-

homa nutrient standards.

Id. at 4-13, 4-14 (emphasis added).

To Oklahoma, the Illinois is a very special river.

Oklahoma has “long recognized the Illinois River as a

water course of unique natural beauty.” R., B-37, { 16.”

In 1970, Oklahoma designated it one of five scenic rivers

that “possess{es}] . .. unique natural scenic beauty, water

conservation, fish, wildlife and outdoor recreational val-

ues of present and future benefit to the people of the

State.” OKLA. Stat. tit. 82, §1452(a) (1981). Con-

gress has designated the River as a potential Wild and

“In 1952, the Oklahoma Fisheries Research Laboratory described

the Illinois River as follows:

Any description of the Illinois River should properly be filled

with glowing adjectives ... for the “Illinois” is a clear, spring-

fed stream, flowing through the oak and hickory clad Ozark

Hills in a succession of sparkling ripples and along, quiet pools,

which inspires cries of “Eureka!” when first viewed . . .

R., B-10, 9 NPDES Adm. Rec. 3,921.

The U.S. Department of Interior in its 1979 study on the Illinois

River’s potential designation as a national Wild and Scenic River,

found:

Picturesque bluffs abut the river over much of its course, afford-

ing the user much scenic variety. The pastoral setting of an

agricultural valiey adds to the recreation enjoyment. Water

quality continues to support a diverse fishery, although deterior-

ated from past years. Characteristic water clarity is one of

the stream’s most attractive attributes.

U.S. Departinent of the Interior, Illinois Wild & Scenic River

Study (Final Report, 1979), p. 31. As indicated here, the quality

had deteriorated from that previously observed, and as recognized

by both Fayetteville and Oklahoma, had deteriorated at increasing

levels in recent years.

Scenic River under federal law. 16 U.S.C. §§ 1271, 1276

(40) (1988).

As required by the Act, Oklahoma has adopted water

quality standards for the scenic Illinois River. Two are

particularly relevant here, because they set the highest

applicable standards. First, unlike Arkansas, which per-

mits additional discharge loading into the River, Okla-

homa has adopted a “beneficial use limitation” which

provides :

All streams and bodies designated as (a) [which

include state-designated scenic rivers] are protected

by prohibition of any new point source discharges of

wastes, or increased load from an existing point

source except under conditions described in Section

3."

§ 5, Oklahoma Water Quality Standards ‘(OWQS), J.A.

46-47. (emphasis added)

Second, Oklahoma has extended to the Illinois River

the highest of the three tiers of protection under its anti-

degradation policy:

No degradation shall be allowed in high quality

waters which constitute an outstanding resource or

in waters of exceptional recreational or ecological

significance. These include [rivers] . . . designated

“Scenic Rivers.” "

1 Section 3 is Oklahoma’s EPA-approved antidegradation policy.

J.A. 27. Since no degradation at all is permitted in the quality

of a scenic river, no increased load or new discharge from a point ,-

source could ever be permitted that degraded such a river. P.A. 47a-

48a.

11 The Illinois River is designated a scenic river above the 650 foot

elevation level of Tenkiller reservoir to the Arkansas state line. The

scenic portion covers virtually the entire stretch of river between

Lake Frances and Lake Tenkiller. Hereinafter, “Illinois River” will

refer to the portion classified as scenic and protected under the

beneficial use limitation and “no degradation” standards.

§ 3, OWQS, J.A. 28. These standards were included in

the 1982 standards that EPA approved for Oklahoma

under CWA §& 303."

EPA issued its NPDES permit to Fayetteville on No-

vember 5, 1985, to become effective on December 10, 1985.

Oklahoma and Save The Illinois River (S.T.I.R.) promptly

requested an evidentiary hearing. The hearing was held

August 18-20, 1987. The EPA Administrative Law

Judge ‘ALJ) issued his initial order on January 12,

1988. He held that permits affecting downstream waters

would be granted unless there was an “undue impact” on

those waters, and that the EPA-approved water quality

standards were only “relevant” to the issue of whether a

discharge would have such an impact. P.A. 100a-104a.

He upheld the permit because in his opinion there would

not be an “undue” or “significant” impact on Oklahoma

water quality. P.A. 105a.

On appeal, the EPA Chief Judicial Officer ‘CJO)

found that the ALJ committed reversible error by em-

ploying an improper legal standard. He found the “plain

and straightforward” language of § 301(b)(1)(C) re

quired “unequivocal compliance” with applicable water

quality standards and made no exceptions for cost or

technological feasibility. P.A. 117a. He remanded for a

simple determination of whether there was a detectable

violation of the Oklahoma standards:

12 These standards are of course equally binding upon any dis-

charges from point sources in Oklahoma, and represent Oklahoma's

compliance with its duties under the Act to protect all waters within

the State. The EPA Administrative Law Judge expressly found

that the Oklahoma Water Quality Standards “do not amount to an

attempt to establish a separate system for out-of-state sources since

they apply equally to Oklahoma sources.” P.A. 125a. EPA has

never questioned Oklahoma's designation of the Illinois River as an

ONRW, and has advised the states that rivers eligible for inclusion

as federal Wild and Scenic Rivers, such as the Illinois, should be so

designated. E.g., EPA Region I, Guidance for Antidegradation Pol-

icy Implementation for High Quality Waters, p. 2 (March 10, 1986).

It would be improper, however, to characterize the

required showing as implying the existence of either

an “undue impact” or “de minimis” test. The phrase

“undue impact” wrongly implies a reasonableness

standard, i.e., that violations of water quality stand-

ards may be ‘tolerated if justified by the totality of

the circumstances. The phrase “de minimis” incor-

rectly suggests that only significant” violations are

prohibited.

P.A. 118a.

On remand, the ALJ found that the Fayetteville plant

would initially discharge thirty pounds a day of nutri-

ents, especially phosphorous, into the Illinois River, in-

creasing to fifty pounds a day as the plant reached de-

sign capacity. P.A. 128a. Of this increased pollutant

load of eleven thousand to eighteen thousand pounds a

year, twenty to twenty-five percent would be bioavailable,

i.e., available as a food for algae, in Oklahoma. /d. at

129a."* Nevertheless, he refused to void the permit. Ac-

cording to the ALJ, a violation of the beneficial use limi-

tation standard could occur only if the addition of pol-

lutants would “create a nuisance or render the Illinois

River in Oklahoma harmful, detrementa! [sic] or injur-

ious to any beneficial use of the river.” P.A. 126a-127a.

He believed that a “mere measurable increase alone” in

phosphorous or nitrogen was not enough to show a viola-

tion of the nutrients standard, absent a showing that it

would cause a change in algae growth or some other

parameter. /d. at 13la. Finally, he found that dissolved

oxygen violations were already occurring, but did not find

13 The courts have recognized the intrinsically harmful effects of

nutrients such as phosphorous and nitrogen. “[N |itrogen and phos-

phorous compounds .. . provide food for many species of algae.

Excessive nutrient levels degrade water quality both because the

proliferation of algae is itself a nuisance and because algae respira-

tion and subsequent death and decay use up oxygen dissolved in the

river's waters.” Montgomery Envtl. Coalition v. Costle, 646 F.2d

568, 575 (D.C. Cir. 1980).

the frequency of these violations would increase “‘solely”’

due to the new discharge. P.A. 140a.'"' He failed to dis-

cuss the antidegradation standard. The CJO affirmed,

finding it was necessary to show a new degradation

caused by a change in some water quality parameter such

as nutrients. P.A. 152a.

The Tenth Circuit reversed EPA’s issuance of the per-

mit to Fayetteville, insofar as the permit authorized a

discharge that would reach the Illinois River. The court

found that EPA’s ruling was defective because it utterly

failed to consider an important aspect of the problem,

the existing degradation of the River in Oklahoma.

-EPA’s application of Oklahoma’s standards to permit ad-

ditional quantities of pollutants to reach a river already

degraded by those same pollutants undermined the Clean

Water Act:

If we were to accept this logic, once water quality

standards in a stream were violated, additional new

discharges might be permitted indefinitely so long as

each one would have an unmeasurable individual im-

pact. The absurdity of such a policy is manifest.

Id. at 78a.

Accordingly, the Tenth Circuit ruled that if a river

protected by the beneficial use limitation and the highest

standard of the antidegradation policy, was already de-

graded, there was no need to shvw that a proposed addi-

tional discharge would create a new adverse impact, as ~

long as the new discharge included the same pollutants

that had contributed to the existing degraded condition.

P.A. 79a. In the face of the EPA’s finding that up to a’

fourth of the phosphorous and other nutrients discharged

to the Illinois River would be available as algae food in

The ALJ assumed that Oklahoma would be protected by a per-

mit provision requiring modification in light of the findings of an

ongoing Arkansas/Oklahoma/EPA study of pollution in the Illinois

River. P.A. 143a. Now, more than five years after the permit was

issued, the study, although completed, has not been released.

Oklahoma, and the unrefuted evidence ‘including photo-

graphs and Fayetteville’s own analysis) that the added

discharge would reach an already degraded river, the

court concluded that Fayetteville’s permit did not insure

compliance with Oklahoma’s water quality standards, and

was therefore unlawful under CWA § 301.

SUMMARY OF THE ARGUMENT

The Clean Water Act’s goals are the elimination of

the discharge of pollutants, and the restoration of the

Nation’s waters to their natural state. Congress pre-

sumed that any discharge of pollutants, defined broadly

to include industria] and municipal waste, was inherently

harmful. Accordingly, Congress imposed a nationwide

prohibition on the discharge of all pollutants, unless the

applicant could prove through a permit process that its

discharge would implement state-adopted, EPA-approved

water quality standards. It is with respect to the protec-

tion of rivers like the Illinois River, outstanding national

resource waters, that the statutory mission is most pre-

cisely focused, as EPA requires states to adopt standards

that, at a minimum, permit no degradation of such

rivers.

In this permit proceeding, EPA utterly failed to con-

sider an important aspect of the decision as to whether

Oklahoma’s EPA-approved standards allowed an entirely

new point source discharge of waste to enter the Illinois

River: that the River was already degraded even before

the addition of new waste from Fayetteville. Due to this

critical error, EPA provided in this case an interpreta-

tion of Oklahoma’s standards that allowed a new dis-

charge of harmful waste into the River, even of the

same type that had contributed to the existing degrada-

tion, as long as the new addition of pollutants did not

in itself cause a measurable adverse impact in some

other water quality parameter. The Tenth Circuit recog-

nized that this interpretation of the Oklahoma standards

would run counter to the entire purpose of the Clean

Water Act, expressed in both the statutory language and

legislative history. EPA’s interpretation would encourage

backsliding, forcing Oklahoma—and the Nation—into a

position of retreat within a statutory framework aimed

at preserving and improving the Nation’s waters.

The Tenth Circuit developed the correct legal standard

that EPA should have applied to the Fayetteville permit

application. Consistent with the approach that EPA has

urged upon federal courts to determine the meaning of

water quality standards, the Tenth Circuit examined the

text of Oklahoma’s standards, found Oklahoma’s inter-

pretation of the standards consistent with the language,

and then found this interpretation further confirmed by

EPA’s regulations setting minimum requirements for

each state’s antidegradation standard, as well as by

EPA’s application of the standards to prohibit any in-

creased discharge to the Illinois River from a point source

located in Oklahoma. Further, EPA had advised the

states that the antidegradation standard for outstanding

national resource waters specifically prohibited any new

point source discharge. If anything, the Tenth Circuit

narrowed its application of the standards as compared to

the meaning previously provided by EPA. While EPA’s

interpretation would prohibit all new point source dis-

charges of waste to an outstanding national resource

water under all circumstances, the Tenth Circuit applied

the standard to the limited situation where the waters

were previously degraded, and the additional pollutants

were of the same type that had contributed to its de-

graded condition. In the face of unrefuted evidence of

the Illinois River’s degraded condition, and the agency’s

finding that up to one fourth of the phosphorous dis-

charged into the River would be available as algae food

in Oklahoma, the Tenth Circuit correctly found the per-

mit did not insure compliance with Oklahoma’s EPA-

approved standards, and was therefore unlawful under

the Clean Water Act.

ARGUMENT

I. EPA FAILED TO CONSIDER THE CURRENTLY

DEGRADED STATUS OF THE ILLINOIS RIVER IN

ITS APPLICATION OF THE OKLAHOMA STAND-

ARDS TO THE FAYETTEVILLE NPDES PRO-

CEEDING, AND AS A RESULT OF THIS FAIL-

URE, EPA ADOPTED AN UNREASONABLE IN-

TERPRETATION THAT WAS PROPERLY SET

ASIDE BY THE TENTH CIRCUIT.

EPA’s interpretation of the Oklahoma standards at

issue here is analogous to forcing a child who is vulner-

able to infection from a particular bacteria, and has

been and is currently infected by that bacteria, to absorb

additional quantities of that bacteria until such time as

his temperature increases or he becomes “measurably”

more sick in some way. Addressing only whether the new

pollutants would result in a new harmful impact in some

water quality parameter, the EPA totally ignored the

unrefuted evidence that the Illinois River was already de-

graded, and that the additional pollutants from Fayette-

ville were of the same type that, contributed to its de-

graded condition in the first place. EPA’s interpretation

of Oklahoma’s EPA-approved standards was unreason-

able as a matter of law, because it fundamentally vio-

lated the statutory objectives of the Clean Water Act—

restoring and improving the quality of our waters—as

well as the role intended for the antidegradation policy

in achieving ‘hose goals.

A. The Clean Water Act Requires Compliance With

Federally-Approved Water Quality Standards of

Downstream States.

In adopting the Clean Water Act, Congress set forth

in clear terms its purpose to achieve the complete elimi-

nation of the discharge of pollutants into the navigable

waters. The sponsors succeeded in including this goal,

despite strong objections. See National Wildlife Fed’n v.

Gorsuch, 693 F.2d 156, 179-81 (D.C. Cir. 1982). Even

the statutory ‘language setting forth the goal of restor-

ing the Nation’s waters to their chemical, physical, and

biological integrity was harshly attacked by critics, who

urged that the natural state of our waters should not be

pursued as a goal for its own sake, but rather that the

aim of the statute should focus narrowly on the achieve-

ment of beneficial uses where economically feasible. Let-

ter from W. Ruckelshaus, December 31, 1971, reprinted

in 1 1972 LeGis. Hist. 834, 835. Still, the sponsors pre-

vailed and Congress enacted a comprehensive program

for the “elimination of water pollution.” Cily of Mil-

waukee v. Illinois, 451 U.S. 304, 318 (1981) (emphasis

added).

In the case of permit applicants whose discharges

would reach other states, both Congress and EPA have

recognized that the Act’s objectives would be frustrated

if dischargers were permitted to export their pollution

across state lines and violate the water quality standards

of downstream states. The critical substantive provision

of the Clean Water Act, relevant here, is § 301(b) (1)

(C), which states:

|T |here shall be achieved—

any more stringent limitation .. . required to im-

plement any applicable water quality standard estab-

lished pursuant to this chapter. (emphasis added).

This substantive provision requires compliance with

EPA-approved standards of source and downstream

states. So important is it that this substantive provision

be given effect, Congress and EPA have also provided

additional procedural safeguards to insure compliance

with EPA-approved water quality standards of down-

stream states. When EPA is the permitting authority,

as was the case here, the statute requires the source

state to certify that the discharge will comply with all ap-

plicable state water quality standards approved by EPA.

CWA §401(a)(1). Even if a state provides certifica-

tion, the EPA must notify a downstream state, whose

water quality may be affected, and, if the downstream

state requires, a hearing is held after which the EPA

“shall condition ... [the] permit in such manner as may

be necessary to insure compliance with applicable water

quality requirements. If the imposition of conditions can-

not insure such compliance, [the EPA] shall not issue

such license or permit.” CWA § 401(a)(2) (emphasis

added). EPA has also adopted implementing regulations

prohibiting the issuance of any NPDES permit where

conditions cannot insure compliance with applicable

water quality requirements of all affected states. 40

C.F.R. § 122.4(d)."

Arkansas’ argument, that the only role for the down-

stream states is to consult with the permitting authority,

ignores the statutory structure, as well as the indicators

of statutory meaning contained in EPA’s implementing

regulations. These implementing regulations are entitled

to weight under Chevron, United States, Inc. v. Natural

Similarly, states which have NPDES permitting authority must

insure compliance with federally-approved water quality standards

of downstream states. The Act prohibits approval of a state permit

program unless the state can assure compliance with all applicable

standards including those under CWA §&§ 301(b)(1)(C). CWA

§ 402(b)(1)(A). States the water quality of which may be impacted

must be given notice and an opportunity for input, and if their pro-

posals are not accepted by the source state, the EPA must be notified

of the reasons. CWA § 402(b)(3), (5). Finally, even if a state decides

to issue a permit, EPA may veto the permit and assume vermitting

authority if the state permit fails to assure compliance with applica-

ble downstream standards, and thus falls outside the “guidelines

and requirements” of the Act. CWA § 402(d)(2)(B). See Champion

Int'l Co. v. EPA, 648 F.Supp. 1390 (W.D.N.C. 1986), vacated on

other grounds, 850 F.2d 182 (4th Cir. 1988) (EPA objected to per-

mit because it did not unequivocally insure compliance with nar-

rative water quality standards of affected downstream state.). The

regulation prohibiting NPDES permits, where conditions cannot

assure compliance with applicable water quality standards of all

affected states, also applies where states have permitting authority.

40 C.F.R. § 123.25(1), (15).

1!)

Resources Defense Council, Inc., 467 U.S. 837, 843-44,

reh’q denied, 468 U.S. 1227 (1984)."" As the Tenth Cir-

cuit recognized, Arkansas’ interpretation would permit

interstate water quality to be set at the lowest common

denominator anytime the upstream source state had lower

water quality standards than those deemed desirable by

the downstream state, contrary to the purposes of the

Act. P.A. 13a."" In fact, in this proceeding, water qual-

Arkansas also relies on this Court’s “undue impact” dicta in

International Paper Co, v. Ouellette, 479 U.S. 481 (1987), to support

its argument. That case, however, dealt with a different issue:

whether the Act preempts a nuisance suit brought against an out-

of-state discharger under the nuisance laws of the downstream state.

In holding that such common law nuisance suits were preempted by

the Act, the Court found that plaintiffs in that case were attempting

to set up a “second permit” system, which would disrupt the NPDES

permit system established by the Act. Jd. at 491. Oklahoma does not

seek to circumvent the NPDES permit process, but to protect it-

self through it. The requirement that downstream states’ EPA-

approved water quality standards be enforced in the unitary NPDES

permit process is entirely consistent with Ouellette.

Ouellette was decided January, 1987. In subsequent NPDES per-

mit cases involving interstate waters, EPA adopted the position

that Ouellette did not apply. See Joint Brief of EPA and State of

Tennessee, pp. 48-50, Champion Int'l Corp. v. EPA, No. 87-3529

(4th Cir. 1988) (Ouellette “has no application to cases brought un-

der the Clean Water Act,” and North Carolina, the upstream state

“continues to be required to assure compliance with Tennessee’s

Section 303 water quality standards.” ). In this proceeding, the EPA

Chief Judicial Officer held the Ouellette “undue impact” dicta in-

applicable, because it conflicted with the clear language of § 301

(b)(1)(C). P.A. 118-119a. Before this Court, however, the gov-

ernment apparently seeks to resurrect Ouellette to argue that the

Clean Water Act confers broad powers to the EPA to impose a de

minimis standard on water quality violations, EPA Brief, pp. 17-18,

28-29, a position that finds no explicit support in the language of

the Clean Water Act or its implementing regulations, and that was

explicitly rejected by the EPA below. P.A. 118a.

'T Water quality standards originated in the Water Quality Act

of 1965. In that statute Congress required each state to promul-

gate standards for the “interstate waters or portions thereof within

such state,” See 33 U.S.C. §1160(¢)(1)(1970). Congress thereby

ity would be set at the lowest common denominator if

Fayetteville did not have to comply with Oklahoma’s

federally-approved standards. Arkansas has not imposed

a “no discharge” prohibition on the Illinois River in Ar-

kansas. R., B-10, 2 NPDES Adm. Rec. 482. Arkansas

has not designated the Illinois River as a scenic river or

its equivalent, nor has the Arkansas segment been in-

cluded as a potential national Wild and Scenic River. /d.

at 3,941. And, while Arkansas has an antidegradation

policy for the River, it provides only protection for exist-

ing uses:

No point source discharge shall be permitted with-

out taking into account the highest instream use of

the existing stream and the need to protect existing

uses of downstream waters.

Id. at 3,941." The discharge of additional pollutants

from Fayetteville would be permissible under the Ar-

kansas standards as long as it did not threaten any

“existing uses,” even though it would violate Oklahoma’s

standards as soon as the state line was crossed, as Okla-

homa’s EPA-approved standards prohibit any degrada-

tion, regardless of whether an existing use is threatened."

recognized the particular need to protect water quality in the inter-

state context, where a downstream state’s water quality would be

impacted by an upstream discharge. A lowering of the quality of

such waters to the lowest common standard was not to be tolerated :

The Committee must reemphasize its intent that water quality

standards are not designed to “lock in” present uses of water

or to exclude others, not now possible. The standards are not a

device to insure the lowest common denominator of water qual-

ity but to enhance the quality and productivity of our water

resources. S. Rep. No. 10, 89th Cong., Ist Sess., p. 10, reprinted

in Sen. Rpts., Misc. Rpts. ON PuBLIC BILLS, Vol. 1-1 (1965).

18 See 40 C.F.R. § 131.10, which requires states to adopt standards

which insure the attainment of the water quality standards of down-

stream states (not just their existing uses).

1*There is no basis for Arkansas’ apparent suggestion that

§ 3023(d) of the Clean Water Act implicitly limits the role of EPA-

approved state water quality standards to prevent further pollution

B. While EPA Recognized That A Discharger Must

Comply With EPA-Approved Water Quality Stand-

ards of Downstream States to Carry Out The Pur-

poses of the Clean Water Act, In This Case EPA

Provided An Unreasonable Interpretation of the

Oklahoma Standards That Undermined the Act’s

Objectives.

Under Chevron, a reviewing court must set aside an

agency interpretation of a legal standard if it is arbi-

trary, capricious or manifestly contrary to the statute in

view of its language or legislative history. Chevron, 467

U.S. at 844. The deference due an agency depends on

how much discretion Congress intended the agency to

have in resolving the particular type of decision before

it. E.g., Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 411-12 (1971). In Chevron, for example, a case

arising under the Clean Air Act, Congress had recog-

nized, but had been unable to reconcile, two “manifestly

competing” interests, the economic interest in business

development and the environmental interest in improving

air quality. The Court recognized that Congress’ silence

afforded the agency broad discretion to forge an “effec-

tive reconciliation of these twofold ends .. .”. Chevron,

467 U.S. at 866, citing United States v. . Shimer, 367 U.S

374, 383 (1961).

Here, Congress has clearly spoken. Congress has evalu-

ated the competing interests that arise in interstate water

quality disputes, and has determined that when a dis-

charger impacts upon the water quality of a downstream

state, the permit must be prohibited unless compliance is

insured with federally-approved water quality standards.

As both EPA and the Tenth Circuit recognized, Con-

of already degraded waters. While § 303(d) requires states to

identify waters where water quality standards are not being achieved

through technology-based limitations imposed on existing dis-

chargers, the statute does not in any way purport to limit the ap-

plication of any more stringent state water quality standard, which,

once approved by EPA, must be enforced in individual permit

proceedings.

gress has not authorized the permitting agencies to bal-

ance the affected interests or to impose a reasonableness

test. See Natural Resources Defense Council, Ine. v.

Costle, 568 F.2d 1369, 1375 (D.C. Cir. 1977) (Clean

Water Act is a “tough law that relie[s] on explicit man-

dates to a degree uncommon in legislation of this type.’’).

The “thorough, probing, [and] in-depth review” required

of agency action, Overton Park, 401 U.S. at 415, must

focus on the issue of whether EPA fully considered all

relevant information to determine whether Fayetteville

should receive its permit, in view of the Act’s objectives

and the key role which the NPDES permit process plays

in achieving those objectives.

EPA failed to consider an important aspect of its

permit decision when it ignored the previously degraded

condition of the Illinois River in Oklahoma. In a statu-

tory framework aimed at the restoration of waters to

their natural state, Congress has required that “pressure

must be maintained to assure improved quality and to

avoid slipping back.” S. Rep. No. 370, 95th Cong., Ist

Sess. (1977), reprinted in 1977 U.S. Cope Conc. & AD.

News 4326, 4367. The interpretation afforded by EPA

in this proceeding would permit additions of harmful pol-

lutants to reach the Illinois River, already degraded by

those pollutants, as long as each addition was sufficiently

“incremental” so as not to result in a discrete harmful

impact on some measure of water quality. And, of

course, as the total number of pollutants already present

in a river increases, each new incremental addition of

pollutants is less likely to have a demonstrable impact.

Compare Prefiled Testimony of M. Schornick, R. OK-2, at

4 (Phosphorous loading to Lake Frances had increased

106% over 1974-1975 levels), with ALJ Decision on Re-

mand, P.A. 129a (Fayetteville effluent would only in-

crease phosphorous loading to Lake Frances by an addi-

tional 2.4%). Thus, under EPA’s interpretation, the

more polluted a river, the less likely a new discharge

wou'd be prohibited, because its discrete harmful effect

would be less likely to be measured. This would exacer-

bate pollution, contrary to the intent of the Act and the

regulatory framework.”

Fayetteville’s discharge contained at least two pollut-

ants, phosphorous and nitrogen, that were already ad-

versely impacting the water quality of the Illinois River.

P.A. 80a. Congress could not reasonably have intended

the permitting authority to exclude from consideration

the existing degraded condition of a scenic river, for

which EPA has approved the highest protective standards,

where additional pollutants would reach the river of the

same kind that contributed to its degraded condition.”

*° Carried to its logical extreme, EPA’s interpretation would

place upon the permitting authority the almost impossible task of

identifying in all circumstances precisely which point source put

the river in a degraded condition, since, once it was degraded, ad-

ditional point sources could be permitted indefinitely as long as the

discharges were sufficiently incremental to avoid a discretely iden-

tifiable harmful impact. Such an interpretation would clearly frus-

trate the Act’s objectives, particularly in regard to protection of

outstanding national resource waters. Moreover, Congress recog-

nized that there might be numerous factors contributing to the

degraded condition of a body of water (including nonpoint sources),

but Congress “[did} not consider this to be an acceptable excuse for

point sources not meeting their individual requirements.” H.R. Rep.

No. 911, 92nd Cong., 2d Sess., reprinted in 1 1972 Lecis. Hist. 753,

789.

*! As recognized by the Tenth Circuit, EPA’s hearing officer failed

to consider another important aspect of the case, “the oxygen re-

ducing effect of algae respiration and decay,” and showed an in-

complete understanding of phosphorous assimilation. P.A. 74a. The

court quoted the ALJ’s statements that “assimilative processes [at

low flows] is at its [sic] most effective stage, and therefore removes

more nutrients upon which the algae feed. . .” and that “additional

assimilation of phosphorous takes place [below Lake Frances] .. .”

P.A. 68 n. 47, quoting Order on Remand, P.A. 129a, 131a.

The Tenth Circuit noted that the “glaring error” of the ALJ's

statement was that uptake of nutrients by algae was itself an “as-

similative” process that did not reduce the potential for eutrophica-

tion, but was an additional step in the process. P.A. 68a n. 47. The

Court concluded :

These are grave misunderstandings because the phenomena of

oxygen depletion, which results from “over-fertilization” of a

C. EPA’s Interpretation Of The Oklahoma Standards

Was Unreasonable Because The Clean Water Act

Does Not Require A Showing Of Harm For A Dis-

charge To Be Prohibited And EPA Failed To Pro-

vide Any Explanation As To Why In This Case

Such A Showing Would Be Required.

EPA’s application of the Oklahoma standards runs

counter to the Clean Water Act’s statutory and regula-

tory framework, which does not require that a discharge

be proven harmful to fall within the Act’s prohibitions.

Rather, the Act presumes that the discharge of pollutants

is inherently harmful, and thus prohibits all discharges

unless compliance is assured with water quality standards

through a permit process. In the statute, “pollution”

means the “man-made or man-induced alteration of the

chemical, physical, biological and radiological integrity

of water.” CWA § 502(19). Pollutant is defined to in-

clude “industrial, municipal, and agricultural waste dis-

charged into water ...”. CWA § 502(6). None of these

terms has been defined in terms of harm to the environ-

ment, and substances are subject to the Act’s prohibitions

if they result in “man-made or man-induced alteration”

of water, even where there is no knowledge that the sub-

stance is harmful, or where its effects are subject to un-

certainty. FMC Corp. v. Train, 539 F.2d 973, 983 (4th

Cir. 1976) ; Chemical Mfrs. Ass’n v. EPA, 870 F.2d 177,

218 n. 151 (5th Cir. 1989), cert. denied, US. .

110 S. Ct. 1936 (1990); * cf. Hudson River Fishermen’s

stream and the consequent increase in organic matter, and

phosphorus uptake by aquatic organisms, are intrinsic to the

eutrophication process.

Id. at 69a n. 47.

*2 The legislative history confirms Congress’ conviction that the

discharge of all pollutants was to be viewed as inherently harmful.

In formulating the definition of “pollutant”, Congress deliberately

incorporated the applicable definition from the Refuse Act of 1899,

S. Rep. No. 414, 92nd Cong., 2d Sess. (1972), reprinted in 1972 U.S.

Cope Conc. & AD. NEWS 3668, 3742. The Refuse Act prohibited the

discharge of “any refuse matter of any kind or description what-

Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y.

1990) ‘substance discharged into navigable water is a

“pollutant” even when intended use is beneficial).

Consistent with its statutory goals, the Clean Water

Act does not require a showing that a new discharge

creates an incremental new harm in order to constitute a

violation of the Act. See, e.g., C. & H Sugar Co. v. EPA,

553 F.2d 280, 289 (2d Cir. 1977) (effluent limitations,

enforced in permit process, required removal of a “min-

ute” quantity of a pollutant, even where there was no

showing aquatic life was threatened); Sierra Club v.

Union Oil Co. of California, 813 F.2d 1480, 1491 (9th

Cir. 1987), vacated, 485 U.S. 931 (1988) (Clean Water

Act makes no provision for “aggregative” standard or

“rare” violations) ; Student Pub. Interest Group v. P.D.

Oil & Chem., 627 F. Supp. 1074, 1082 (D.N.J. 1986)

(“|P)laintiffs are not required to show that a particular

percentage of the pollution that affects their interests is

traceable to defendant’s effluent . . . [as] numerous pol-

luters contribute to an environmental harm like pollution

of rivers.” )

In the face of the statute’s presumption that the dis-

charge of any pollutant is inherently harmful, EPA

failed to provide any explanation of how it could con-

strue Oklahoma’s standards to permit the discharge of

additional pollutants, known to be harmful, to waters

that were, in fact, already harmed by those types of

pollutants. EPA’s error is even more pronounced in view

of the information provided by EPA to the states about

the pollutant phosphorous:

sover other than that flowing from streets and sewers and passing

therefrom in a liquid state, into any navigable water.” 33 U.S.C.

§ 407 (1970). Congress recognized the value of a strong prohibition

of all discharges: “The Committee believes it is important to clarify

this point: No one has the right to pollute.” S. Rep. No. 414, 92nd

Cong., 2d Sess. (1972), reprinted in 1972 U.S. Cope Conc. & Ab.

NEWS 3668, 3709, cited in United States v. Hamel, 551 F.2d 107,

110-11 (6th Cir. 1977).

Generally, it is recognized that phosphorus is not

the sole cause of eutrophication but there is sub-

stantiating evidence jhat frequently it is the key ele-

ment of all of the elements required by freshwater

plants, and generally, it is present in the least amount

relative to need. Therefore, an increase in phos-

phorus allows use of other already present nutrients

for plant growth.

Once nutrients are combined within the aquatic eco-

system, their removal] is tedious and expensive. Phos-

phates are used by algae and higher aquatic plants

and may be stored in excess of use within the plant

cell. With decomposition of the plant cell, some

phosphorus may be released immediately through bac-

terial action for recycling within the biotic com-

munity, while the remainder may be deposited with

sediments.

EPA Quality Criteria for Water (1986), Phosphorus

(emphasis added). That phosphorous may be “stored in

excess of use” in itself raises a serious doubt as to

whether the agency considered all relevant factors in its

interpretation of Oklahoma’s standards. As recognized

by the EPA here, the observable harm caused by in-

creased loading may not occur immediately, but may oc-

cur after the algae cells die and the previously stored

phosphorous is recirculated throughout the aquatic sys-

tem. Further, EPA had found that phosphorous avail-

ability was the controlling factor for algae growth in the

Illinois River System, P.A. 13la, yet EPA failed to con-

sider this factor in its interpretation of the applicable

Oklahoma standards.

D. EPA’s Interpretation Ignored The Importance Of

The Antidegradation Standard For An Outstanding

National Resource Water.

EPA’s interpretation was also fundamentally flawed

because it failed to consider the critical importance of

Oklahoma’s EPA-approved antidegradation standard ap-

plicable to the Illinois River. The ALJ failed to give any

independent significance to this standard in his Order on

Remand.

The federal antidegradation policy dates back to 1968,

when the Secretary of the Interior required states to

adopt, as part of their water quality standards, a pro-

vision that “water whose existing quality is better than

the established standards . . . will be maintained at their

existing high quality.” Compendium of Department of

Interior Statements on Non-Degradation of Interstate

Waters (Aug. 1968). In 1975, EPA adopted regulations,

requiring states, at a minimum, to provide a three-tier

policy, under which no degradation would be allowed of

high quality waters which constitute an outstanding na-

tional resource. 40 Fed. Reg. 55,334, 55,336 (1975).

EPA has advised the states that the purpose of the anti-

degradation standard is to maintain water quality “and

prevent backsliding.” Questions and Answers on Water

Quality Standards, July 12, 1979, reprinted in ENv’T

Retr. (BNA) 31:5152. And in 1983, EPA rejected a

proposed rule that would have weakened the mandatory

antidegradation policy by imposing a cost-benefit test and

by limiting the policy’s protection to existing uses, even

for outstanding national resource waters. In response to

sharp criticism, EPA retained the existing policy and

reaffirmed the special protection afforded outstanding na-

tional resource waters:

Finally, § 131.23(a) (3) [the predecessor to 40 C.F.R.

5 131.12(a) (3) | provides special protection of waters

for which the ordinary use classifications and water

quality criteria do not suffice, denoted “outstanding

National resource water.” Ordinarily most people

view this subsection as protecting and maintaining

the highest quality waters of the United States: that

is clearly the thrust of the provision. It does, how-

ever, also offer special] protection for waters of “‘eco-

logical significance.”

48 Fed. Reg. 51,399, 51,403 (1983).

Congress has been particularly concerned about the

dangers of falling back, or backsliding, from progress

made toward the realization of the Act’s obje:tives, and

has focused on the antidegradation policy as key to pro-

tecting those gains. In 1987, Congress enacted an anti-

backsliding amendment which provided that where a

state had achieved water quality in excess of that needed

to protect designated uses, adjustments could be made

to waste load allocations only if the revision was con-

sistent with the state’s approved antidegradation policy.

CWA § 303(d)(4)(B). Describing the antidegradation

policy as a “cornerstone” of the entire statute, Congress

stated:

The principal objective of the Act is the restoration

and maintenance of the integrity of our Nation’s

waters. Every requirement of the statute looks to-

ward cleaner water—never backward toward relin-

quishing pollution co, gains that contribute to

meeting that objective ainment and maintenance

of clean water will noi chieved if it is permitted

to be degraded without compelling and overriding

reasons. Moreover, if the Act is to accomplish its

objectives, the high quality of waters considered to be

outstanding national resources must be preserved.

S. Rep. No. 50, 99th Cong., 1st Sess. (1985), reprinted in

2 Sen. Comm. on Public Works 100th Cong., 2d Sess.,

LEGISLATIVE HISTORY OF THE WATER QUALITY ACT OF

1987, 1425-1426 (1988). (emphasis added).

Without the highest antidegradation requirement for

rivers protected as outstanding national resource waters,

pollution would be permissible until its cumulative effect

reduced the quality of a given body of water below the

standards that must be enforced under the Act. In this

case, EPA adopted an interpretation that permits back-

sliding, as additional quantities of known pollutants

would be allowed, indefinitely, into a previously degraded

river until the cumulative impact were such as to con-

tribute to another incremental quantum of measurable

degradation. Such an aggregative approach to the

standard would directly undermine the purpose of the

standard, to insure that every step is a step forward.”

Il. THE TENTH CIRCUIT FORMULATED THE COR-

RECT STANDARD TO DETERMINE WHETHER

FAYETTEVILLE’S PERMIT TO DISCHARGE INTO

THE ILLINOIS RIVER WOULD COMPLY WITH

OKLAHOMA’S WATER QUALITY STANDARDS.

The Tenth Circuit applied a correct standard to deter-

mine whether the Fayetteville discharge insured compli-

ance with Oklahoma’s standards. The Court found that

“3 EPA has apparently failed to recognize in this proceeding that

the applicable Oklahoma standards insure protection of water qual-

ity above that necessary to preserve any designated use. In its early

comments on Fayetteville’s proposal, EPA acknowledged that the

standards prohibited any new point source discharge to the Illinois

River, but, apparently failing to grasp the significance, concluded

“there would not be an adverse impact on designated uses in either

state.” 2 NPDES Adm. Rec. 482, R. B-10. At the hearing, Fayette-

ville witness Thompson acknowledged that the increased phosphorous

load to the Illinois River would violate Oklahoma's beneficial use

limitation standard, even if no designated use were threatened.

R. C-1, pp. 245-247, P.A. 65a. And Fayetteville’s Environmental

Information Document acknowledged that the discharge would fur-

ther degrade the River. R., Ark.-6, p. 4-14. Nevertheless, when

formulating his legal standard, the ALJ required Oklahoma to show

that the discharge would “create a nuisance” or render the River

“harmful, detremental [sic], or injurious to any beneficial use. . .”

P.A. 126a-127a.

The commentators have cautioned against an approach which

links the protection of the antidegradation policy with impact on

existing uses: “A use oriented policy .. . could produce significant

degradation of waters ... EPA additionally would have to base a

use-oriented policy on the rather questionable science that attempts

to determine the levels of pollution that are acceptable to an aquatic

ecosystem. Scientific knowledge, while appropriate to mandate

existing restrictions, is too uncertain to warrant relaxation of re-

quirements because the water is ‘clean enough’.” Gaba, Federal Su-

pervision of State Water Quality Standards Under the Clean Water

Act, 36 VAND L. REV. 1167, 1192-93 (1983).

for rivers protected by Oklahoma’s beneficial use limitation

and antidegradation standard prohibiting any degrada-

tion, there must be a detectable change in water quality

for that water to qualify as degraded. But once the

quality of the receiving stream was degraded, it was not

necessary to prove that the incremental impact of a pro-

posed additional discharge must itself be detectable.

“Rather, if a body of water is experiencing [water qual-

ity standards] violations and a proposed new source

would discharge the same pollutants to which those

standards apply, that source may not be permitted if its

effluent [would] reach the degraded waters.” P.A. 79a-

80a. The legal standard formulated by the Tenth Cir-

cuit did not originate in its own interpretation of what

the standard should be. Rather, applying a test urged on

the courts by EPA in previous cases, the court examined

(1) Oklahoma’s interpretation of the standards in light

of their plain meaning; (2) EPA’s previous interpreta-

tions of the standards as applied to other dischargers on

the Illinois River; and (3) EPA’s regulations describing

the minimum requirements for each state’s antidegrada-

tion policy. These sources were consistent with each other

and confirmed Oklahoma’s interpretation that the dis-

charge would violate its EPA-approved standards. This

interpretation is clearly confirmed by EPA’s instructions

to the states on how to implement the antidegradation

policy for outstanding national resource waters, and also

clearly confirmed by EPA’s internal legal analysis of the

meaning of the standard. EPA’s assertion that the in-

terpretation of Oklahoma’s water quality standards,

proffered by a hearing officer in 1987, “presumably” re-

flects the interpretation that EPA would have been pro-

vided five years previously when approval was granted,

EPA Br. pp. 19-20, ignores the actual interpretations of

those standards that had been previously provided by

EPA.

In other cases, EPA has suggested the proper analy-

tical framework to determine the meaning of a water

quality standard. In Champion, EPA found that a per-

mit sought by a North Carolina facility to discharge into

the Pigeon River, about twenty-six miles upstream from

the Tennessee border, would violate Tennessee’s EPA-

approved color standard for the river. The Tennessee

standard was a narrative standard. EPA looked to Ten-

nessee’s interpretation of its standard, and advised the

District Court:

As the party best able to interpret and apply its

own standards, Tennessee’s views of what permit con-

ditions are necessary to meet Tennessee law deserve

deference from North Carolina, EPA and this court.

Tennessee’s legal analysis is entitled to substantial

deference, and its factual determinations concerning

the permit limits necessary to meet its standards

should be accepted unless arbitrary and capricious.

Udall v. Tallman, 380 U.S. 1 (1965).

Motion of EPA for Summary Judgment, Champion In-

ternational, Inc. v. EPA, Civ. No. A-C-86-26 (W.D.

N.C.), filed October 16, 1986, p. 51 n. 22. (emphasis

added}. Since Tennessee’s interpretation of its standard

was consistent with EPA regulations and guidelines,

EPA urged the Court to accept it. /d. at 51-52."

A. Oklahoma Has Interpreted Its Standards In This

Proceeding To Prohibit Any Addition of Pollutants

to the Illinois River.

Oklahoma’s beneficial use limitation standard was in-

cluded in the first water quality standards adopted after

the passage of the 1972 amendments to the Clean Water

*4In Navistar Int'l Transp. Corp. v. EPA, 858 F.2d 282, 287-88

(6th Cir. 1988), cert. denied, 490 U.S. 1039 (1989), EPA faced the

similar question of interpreting the meaning of a state air quality

standard enforceable under the federal Clean Air Act. Consistent

with EPA’s approach in Champion, the agency examined the testi-

mony of the state government official who drafted the state standard,

and found his views consistent with both the standard’s plain lan-

guage and the statute’s goal of reducing pollution.

Act, and has been included in every triennial revision of

those standards since then.** Statement of L. Edmison,

Addendum to R., B-83. The limitation was applied to

new or additional point source discharges that reached

the Illinois River, whether originating on the River or on

a tributary that flowed into the protected part of the

River. In 1982, Oklahoma’s Pollution Control Coordinat-

ing Board advised Fayetteville that the Illinois River was

degraded, and that the new proposed discharge would

constitute a violation of the beneficial use limitation stand-

ard approved for the River. R. B-10, 7 NPDES Adm.

Ree. 2,969. Oklahoma consistently has interpreted the

beneficia] use limitation standard to prohibit the Fayette-

ville discharge.

Oklahoma’s antidegradation policy has also been included

in every submission of water quality standards to the EPA,

and prohibits any degradation of outstanding national

resource waters, including state-designated scenic rivers

such as the Illinois River.** Oklahoma advised EPA on

August 7, 1985, of reports that the water quality on the

River had been degrading at an “alarming rate’ over

the past decade, and that Fayetteville’s own assessment

of the impact of its discharge on the River showed that

—

** The 1973 language provided that “a” streams were protected

from “any future discharge of pollutants.” Because this language

could be interpreted to ban even existing discharges, the language

was modified in 1976 to accomplish the intent of prohibiting “a new

point source discharge of wastes or increased load from an existing

point source.” Addendum to R., B-&83.

**T'ntil 1976, Oklahoma's antidegradation standard required

maintenance of the high quality of waters where quality exceeded

that necessary to preserve designated uses, unless limited degrada-

tion were demonstrated to be necessary for economic development.

Oklahoma has never permitted any point source degradation of the

Illinois River on these grounds. In 1976, the languaye was changed

to the current form, permitting no degradation of high quality out-

standing resource waters.

the “resulting changes would be considered degradation

and would not be consistent with the Oklahoma nutrients

standards.” R., B-10, 2 NPDES Adm. Rec. 692 (emphasis

added). When Oklahoma requested its evidentiary hear-

ing on December 10, 1985, it again advised EPA that

any discharge that reached the Illinois River would vio-

late the antidegradation standard. R., B-2. On September

15, 1986, EPA approved Oklahoma’s 1985 water quality

standards, containing the same antidegradation standard

for the Illinois River that had been included in the 1982

standards. Although Oklahoma had advised EPA that

it interpreted its antidegradation standard to prohibit

the Fayetteville discharge, EPA did not question that in-

terpretation when it approved the standards in 1986.

R., EPA-6. The Tenth Circuit found Oklahoma’s inter-

pretation of its standards further confirmed by their

plain meaning. P.A. 47a-48a.' The 1982 beneficial use

limitation standard for scenic rivers prohibits “any new

point source discharge of waste|s] ... except under con-

ditions described in Section 3.” J.A. 46. Section 3, the

Oklahoma Antidegradation Policy, provides “|n|o degra-

dation shall be allowed in high quality waters which con-

stitute an outstanding resource or in waters of excep-

tional recreational or ecological significance [including

scenic rivers].” J.A. 28.*7

27 The EPA’s error would not have been cured had the 1985 water

quality standards been applicable. The 1985 standards prohibited

any new or increased point source discharge which “increase({d|

pollutant loading.” OWQS § 7.11 (1985). Although pollutant load-

ing is not a defined term, “pollution” is defined in the Oklahoma

standards to include “contamination or other alteration of the physi-

cal, chemical, or biological properties of any natural waters of the

State. . .”. Under the Oklahoma standards, as under the Clean

Water Act, there is no required showing that a substance be harm-

ful to fall within these statutory definitions, as long as its discharge

results in a “man-induced alteration of the receiving stream.” FMC

Corp. v. Train, 539 F.2d 973, 983 (4th Cir. 1976).

B. Oklahoma’s [Interpretation Was Confirmed By

EPA’s Application of the Standards To An Okla-

homa-based Discharger To The Illinois River.

As the Tenth Circuit recognized, Oklahoma’s interpre

tation of its beneficial use standard was consistent with

an earlier interpretation of that same standard by EPA

as applied to the Tahlequah, Oklahoma waste water treat-

ment plant. P.A. 51a n. 37. The record contains a letter

from Lawrence R. Edmison, Director of the Oklahoma |

Department of Pollution Control, to EPA, confirming a

conversation regarding possible revisions to Oklahoma’s

Waste Water Quality Management Plan for Tahlequah:

“Based on our understanding that Tahlequah’s discharge

must not increase loading on the Illinois River which does

carry the “a” designation, we hereby submit further revi-

sions to Tahlequah’s proposed effluent limits.” Addendum

to R., OK-4 (emphasis added). An earlier memorandum

to Mr. Edmison from Quang Pham, of the Oklahoma State

Department of Health, stated that since the time Tahle-

quah had first sought permission to increase its load, it

had been determined that Tahlequah Creek, the receiving

stream for the discharge, was a tributary of the Upper

Illinois River above the six hundred and fifty foot eleva-

tion. Because this portion of the River was protected by

Oklahoma’s “a” designation, “EPA indicated that no load

increase would be allowed for Tahlequah.” Id. (emphasis

added }.**

The interpretation of this standard sought by Okla-

homa for the Fayetteville discharge is identical to the

interpretation EPA had given to that same standard as

applied to Tahlequah in 1986.

2* The issue of how the beneficial use “a” designation applied to

Tahlequah originated in uncertainty as to whether the receiving

stream from that discharge flowed into a portion of the Illinois River

above the six hundred fifty foot elevation. When a survey showed

that the tributary was above the 650 foot elevation, both Oklahoma

and EPA agreed that the beneficial use limitation prohibited any

increased discharge of waste from Tahlequah. Addendum to R., B-83.

C. Oklahoma’s Interpretation Of Its Antidegradation

Standard Is Consistent With the Interpretation

That EPA Has Provided For That Standard.

In recognition of the key role of the antidegradation

policy in preserving outstanding national resource waters,

EPA has adopted regulations that at “a minimum” re-

quire each state to “maintain and preserve” such waters.

40 C.FR.. § 131.12(a)(3). The Tenth Circuit found the

plain language interpretation of the Oklahoma standards,

to allow “no degradation” of scenic river water quality

through the introduction of additional pollutants, to be

consistent with these minimum guidelines. P.A. 48a n. 34

That the antidegradation standard prohibits new dis-

charges to the Illinois River is further confirmed by the

instructions that EPA has given to the states—in ques-

tion and answer format—on how to implement the policy.

These instructions included the following:

In High Quality Waters, Are New Dischargers Or

Expansion of Existing Facilities Subject to the Pro-

visions of Antidegradation?

Yes. Since such activities would presumably lower

water quality, they would not be permissible unless

the State finds that it is necessary to accommodate

important economic or social development.

EPA, Questions and Answers on Antidegradation (Aug.

1985), p. 6. Since Oklahoma classifies the Illinois River

as an outstanding resource water, no additional dis-

charges would be allowed under EPA’s guidelines, even

to accommodate economic or social development. 40

C.F.R. § 131.12(a)(3). EPA’s 1985 instructions were

consistent with earlier guidelines in which EPA advised

the states of techniques available to implement the policy,

including “|rjestricting any new discharge of pollutants

from new and existing sources.” Chapter 5 Water Qual-

ity Standards, 41 Fed. Reg. 47,777 (1976) reprinted in

ENV’T Retr. (BNA) 31:5121, 5126 (May 11, 1979)

‘emphasis added). Such implementing regulations are

indications of the meaning to be given to the standards.

E.1. DuPont DeNemours & Co. v. Train, 430 US. 112,

135 n.25 (1977).

These instructions to the states also reflect EPA’s in-

ternal understanding of the application of the antidegra-

dation standard to outstanding national resource waters.

In 1979, the Director of the EPA’s Water Criteria and

Standards Division asked the EPA General Counsel’s

office whether, in the event states failed to promulgate

standards to protect an ONRW, EPA had the legal au-

thority to promulgate such a standard. The response of

the agency’s counsel is highly instructive:

Assuming a State has adopted an ONRW, you ask

if EPA has authority to promulgate a water quality

standard to protect the ONRW’s status. We are not

sure why any water quality standard would be neces-

sary for an ONRW, since the standard is no degra-

dation: it would seem that arguments over x or y

micrograms per cubic meter would be irrelevant.

Whenever a new point source applied for a permit

to discharge into an ONRW, we could simply deny

the permit (or force the State to deny the permit

through our veto power) under § 301(b)(1)(C),

which requires compliance with all State laws.

EPA, Memorandum from J. Rogers, Associate Genera!

Counsel, Water and Solid Waste Division to K. Macken-

thun, Director, Criteria and Standards Division ( August

15, 1979), p. 4 (emphasis in original). The legal memo-

randum drew a distinction between the Clean Air Act,

which prohibited only “significant” deterioration, and the

Clean Water Act, where no degradation meant no new

point source discharges of pollutants.” As an agency

2? The same memorandum confirmed that the States, not EPA,

had responsibility to designate outstanding national resource

waters, an interpretation that has been recently affirmed. Memo-

randum from C. Winer, Attorney, Water Division, to W. Diamond,

Director, Criteria and Standards Division (May 8, 1989).

interpretation from EPA’s natidnal legal office, this

memorandum is entitled to persuasive weight in deter-

mining the meaning of the standard. Miller v. Youakim,

440 U.S. 125, 144 n.25 (1979).

In this proceeding, Oklahoma did not reach an in-

terpretation of the antidegardation standard that was

inconsistent with EPA’s past interpretations of that

standard. Its interpretation was clearly consistent with

EPA’s instructions to the states, its internal legal analy-

sis of the meaning of the standard, and its regulations

establishing the minimum requirements of preservation

and maintenance of outstanding national resource waters.

In this particular permit proceeding, it is EPA that has

applied an interpretation at odds, not only with the stat-

ute’s purposes, but with its own past authoritative guide-

lines, and thus EPA’s interpretation should not be ac-

corded weight in this case. E.g., United States v. Larion-

off, 431 U.S. 864, 872 (1977) (no deference to adminis-

trative interpretation if it is “plainly erroneous or in-

consistent with the regulation.” ).

D. Oklahoma’s Interpretation Is Consistent With The

Interpretation Provided By the Arkansas-Oklahoma

Arkansas River Compact Commission.

Congress recognized that pollution disputes could arise

between the States. The Clean Water Act encourages com-

pacts between the affected states for the prevention and

controi of pollution. CWA § 103. Pursuant to this author-

ity, Arkansas and Oklahoma entered into the Arkansas-

Oklahoma Arkansas River Compact (Compact), which

was approved by both states’ legislatures in 1970, and

to which Congress had previously consented. OKLA. STAT.

tit. 82, $1421 (1981), ARK. Stat. ANN. §§ 15-23-401,

et seq., Pub. L. No. 97, 69 Stat. 184 (1955). The purpose

of the Compact is the reduction and prevention of pollu-

tion in the Arkansas River Basin, which includes the

Illinois River.“ To resolve disputes between the two

states, the Compact creates an Arkansas-Oklahoma Ar-

kansas River Compact Commission (“Commission”). The

Commission is authorized to hold hearings and its find-

ings of fact “are admissible into evidence and shall con-

stitute prima facie evidence of such fact in any court

or before any agency .. .” OKLA, STAT. tit. 82, § 1421,

Art. IX(A) (8) (1981)."'

While Fayetteville’s NPDES permit application was

pending, Oklahoma requested that the Commission con-

duct a hearing to investigate the impact of the proposed

split-flow on the Illinois River in Oklahoma. The Com-

mission issued its order after two days of hearing.”

Therein, the Commission found that the Illinois River in

Oklahoma had undergone a process of degradation in

water quality on an “escalating scale” in recent years.

R. B-37, 32-50. After examining the possibility that

additional phosphorous from Fayetteville would reach

Oklahoma, the Commission entered its unanimous finding:

The potential increase in phosphorus loading to the

Illinois River from Fayetteville’s proposed discharge

could range from 6% to 23% and, further, that the

“” To achieve this goal, Arkansas and Oklahoma mutually agree to:

Utilize the provisions of all federal and state water pollution

laws and to recognize such water quality standards as may be

now or hereafter established under the Federal Water Pollution

Control Act in the resolution of any pollution problems affecting

the waters of the Arkansas River Basin.

OKLA. Stat. tit. 82, § 1421, Art. VII(E) (1981).

*! The Commission is composed of three members from Arkansas,

three members from Oklahoma, and, if designated by the President

of the United States or an authorized federal agency, one member

representing the United States. The directors of the agencies that

administer each state’s water laws serve as Commissioners.

“2 At the commencement of the hearing, the Attorney General of

Arkansas stated that since the Compact had the force of federal

law, its decisions were controlling on both Arkansas and Oklahoma.

R., Ark.-6, Transcript, Vol. 1, p. 24.

potential for or threat of an increased phosphorus

loading to the Illinois River from the proposed dis-

charge to the lilinois River in Oklahoma clearly ex-

ists. That should such an impact occur, even if

slight in magnitude, further degradation to the Il-

linois River in Oklahoma will also occur, and such

increased degradation will constitute a violation of

Oklahoma Water Quality Standards as weil as an

event of pollution as defined by the Compact.

Id. at "73 (emphasis added). The Commission clearly

recognized that, given the existing degradation of the

River, any additional phosphorous loading from Fayette-

ville would constitute a violation of Oklahoma’s EPA-

approved standards.

Il. THE TENTH CIRCUIT ACTUALLY NARROWED

ITS APPLICATION OF THE OKLAHOMA STAND-

ARDS IN ITS HOLDING AS COMPARED TO THE

BROAD MEANING FOUND IN EPA’S REGULA-

TIONS.

The Tenth Circuit did not, as suggested by Arkansas

and EPA, engage in an expansive interpretation of the

Oklahoma standards that defied EPA policies. Rather, it

is EPA’s interpretation in the permit proceeding that

would not only frustrate the objectives of the Clean

Water Act, but which contradicted its own past inter-

pretations and applications of the Oklahoma standards.

Further, the Tenth Circuit did not adopt an interpreta-

tion of the Oklahoma standards as broad as allowed pur-

suant to EPA’s own regulations. EPA’s 1985 Questions

and Answers on Antidegradation Policy Statement pro-

hibits any new or point source discharge of waste, on the

presumption that lower water quality results from such a

discharge. And EPA’s internal legal memorandum con-

firms that EPA has interpreted the antidegradation

standard to preclude any additional] pollutants (‘ presuma-

bly even a molecule) from a new or increased point

source discharge to reach an outstanding national re-

source water. EPA’s “no discharge” prohibition would

apply to all the situations covered in the Tenth Circuit’s

standard, and would also prohibit discharges not reached

by the court’s standard, such as discharges that would

not result in any measurable or observable degradation

of a pristine stream, and discharges of pollutants of a

type that have not contributed to the degradation of a

degraded stream. EPA’s broad interpretation fully re-

flects the basic statutory presumption that the discharge

of all pollutants is inherently harmful. CWA § 301.

The Tenth Circuit’s application of Oklahoma’s anti-

degradation standard to this particular permit proceed-

ing has a much more precise focus, and is well within

the bounds of EPA’s authoritative guidelines and _ in-

ternal legal analysis. The Court’s legal standard is lim-

ited to a situation where a river is protected by federally-

approved standards like Oklahoma’s antidegradation

policy for outstanding national resource waters and bene-

ficial use limitation, and where the river is already in a

degraded state before the new permit is authorized.** In

such a situation, a new effluent discharge that contains

the same pollutants that caused the river’s current degra-

dation cannot be permitted, whether or not the new dis-

charge individually creates a detectable adverse impact.

P.A. 54a, 79a-89a. There is no conflict between the

court’s standard and EPA regulations and internal anal-

ysis. Rather, the court’s standard is a narrow applica-

38 By requiring that the river already be in a degraded state, or

that the new discharge degrade it, P.A. 48a, the Court implies that

a de minimis exception would be available in a case where a dis-

charge leaves a pristine river in its pristine state. Such a de minimis

exception, however, would not be available under EPA's guidelines

and interna! analysis. Moreover, while EPA urges before this Court

that a de minimis exception should be crafted, the EPA Chief Judi-

cial Officer held such an exception not available under the Clean

Water Act. In any event, even if a de minimis exception were avail-

able, it could not permit new point source discharges of pollutants

to reach a previously degraded scenic river, the circumstances

present here.

tion of those policies to avoid a result clearly inconsistent

with the Clean Water Act.

IV. THE TENTH CIRCUIT CORRECTLY RULED THAT

THE PERMIT WAS UNLAWFUL.

A reviewing court should not “rubber-stamp .. . ad-

ministrative decisions that |are| inconsistent with a stat-

utory mandate or that frustrate the congressional] policy

underlying a statute.” Bureau of Alcohol, Tobacco &

Firearms v. Federal Labor Relations Auth., 464 U.S. 89,

97 (1983), citing NLRB v. Brown, 380 U.S. 278, 291-92

(1965) Here, EPA “entirely failed to consider an im-

portant aspect of the problem,” Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48

(1983), the existing degradation of the Illinois Rive. in

Oklahoma. Due to this fundamental error, EPA issued a

permit to Fayetteville, notwithstanding that its discharge

would add to the Illinois River the same types of pol-

lutants that had contributed to its existing degradation.

EPA’s interpretation of the Oklahoma standards—requir-

ing a measurable adverse harm from the addition of an

inherently harmful pollutant—would permit backsliding,

frustrating and undermining a statute where every re-

quirement looks towards cleaner water, never backward

towards relinquishing pollution control gains.

To determine the proper legal standard, the court of

appeals examined the language of Oklahoma's federal!y-

approved standards, EPA’s past interpretation of those

standards as applied to the same river, as wel! as EPA's

regulations setting the minimum requirements for state

antidegradation policies. Moreover, Oklahoma's interpre-

tation was consistent with EPA’s instructions to the

states that the antidegradation policy for an ONRW pro-

hibited additional point source discharges that reach the

river, as well as with EPA’s internal lega! analyses. But,

the Tenth Circuit narrowed its application, even of the

most protective of standards, to a situation where an

already degraded scenic river would be reached by addi-

tional discharges containing the same pollutants that had

contributed to its degradation.

It is well within the scope of a reviewing court’s au-

thority to apply a correct legal standard to the facts.

E.q., FTC v. Indiana Fed. of Dentists, 476 U.S. 447, 454

(1986). In this case, the evidence was unrefuted that

the Illinois River was degraded even before the Fayette-

ville discharge was permitted. P.A. 64a-65a. The court

of appeals had before it EPA’s finding, unchallenged

before this Court, that of the eighteen thousand pounds

a year of phosphorous that Fayetteville was authorized to

place in a tributary to the Illinois River, twenty to

twenty-five percent would be available for algae growth

in Oklahoma. P.A. 65a. In such a situation, the permit

failed to “insure compliance” with Oklahoma’s water

quality standards and the court of appeals correctly

applied the statutory no discharge prohibition of CWA

§ 301."

CONCLUSION

Petitioners, and Oklahoma at times, have characterized

this proceeding as a dispute between states. But much

more is at stake: the fulfillment of the Clean Water

Act’s objectives of eliminating the discharge of pollutants

and restoring the Nation’s waters to their natural state.

344 Arkansas’ attack on the Tenth Circuit’s opinion is based on a

misreading of the Clean Water Act. Oklahoma has not sought, nor

does the court’s decision provide, an “unfettered veto power” over

the Fayetteville discharge into the Illinois River. See Ark. Br.,

p. 28. But this is not the same as to suggest that a discharger

may not comply with federally-approved water quality standards

made enforceable through CWA § 301(b)(1)(C). Despite Arkan-

sas’ claim that the prohibition on the Illinois River discharge is

inimical to the Clean Water Act, “{t]he fundamental premise of

the Clean Water Act is that ‘the discharge of any pollutant by any

person shall be unlawful’. . .” Natural Resources Defense Couneil

v EPA, 822 F.2d 104, 109 (D.C. Cir. 1987). In this case, the permit

did not insure compliance with Oklahoma's water quality standards,

and the permit is therefore unlawful under CWA § 301.

This permit proceeding involves the preservation of the

Illinois River, an outstanding national resource water,

for which EPA has approved standards prohibiting any

degradation. That the river happens to cross a state

boundary does not weaken the statutory requirement that

Fayetteville comply with that standard. “A River is

more than an amenity, it is a treasure.” ** In the Clean

Water Act, Congress provided a mechanism that requires

the preservation and improvement of these treasures.

The opinion of the Tenth Circuit should be affirmed."

Respectfully submitted,

JULIAN FITE SUSAN B. LOVING

S.T.LR. Attorney General

530 Court St. RoBERT A. BUTKIN

Muskogee, OK 74401 Assistant Attorney General

(Counsel of Record)

BRITA HAUGLAND CANTRELL

Assistant Attorney General

2300 N. Lincoln Blvd., Suite 112

Oklahoma City, OK 73105-4894

(405) 521-3921

% United States v. Standard Oil Co., 384 U.S.4224. 230 (1965)

citing New Jersey v. New York, 283 U.S. 336, 842 (1930).

** The Tenth Circuit ruling, of course, does not prohibit Fayette-

ville from employing land treatment or other alternative means of

disposing of its waste that does not degrade the Illinois River in

Oklahoma. The EPA recognized that Fayetteville could be required

to implement land application if necessary to protect federally-

approved Oklahoma Water Quality Standards. R., A-9. See also

Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 587-89 (D.C.

Cir, 1980) (Clean Water Act confers on EPA broad powers to

insure compliance with applicable water quality standards, including

requiring land treatment or other alternative treatment methods) :

Ryubachek v. EPA, 904 F.2d 1276, 1298 n.27 (9th Cir. 1990) (uphold-

ing “zero discharge” limitations based on recycling technology).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.