# Respondents Brief — Arkansas v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1992 - **Citation:** 503 U.S. 91 ## Text ‘y “*» ~ BECT AVAIL ARIE COPY. ’ _ - » j 4 ’ 4 ‘ & : ad » tne * ¢ . ‘ < y ~ ° B ye, 4 . ed SO Sg Re : we tg ee eel Se - aot % pe : 5 , 4 .£ ~ ~-. " 8 ' 4 a: . E> , ral 4 P; % A. ae pr ot fale kt a $ *, a“ * ” d Fe : . Questions Presented. 1. Whether the Clean Water Act (the Act), as further em- bodied in federally-approved water quality standards and EPA’s own regulatory provisions and interpretations, prohibits the permitting of new discharges to protected waters on the basis of a “no detectable impact” standard. I]. Whether the Tenth Circuit exercised the proper scope of judicial review over EPA’s permit issuance when the issuance was based on a construction of the Clean Water Act and fed- erally-approved water quality standards that is contrary to clear congressional intent. la Fi itis at Hix Ba is a a , — . s a al rr > 7% Table of Contents. INTRODUCTORY STATEMENT SUMMARY OF ARGUMENT ARGUMENT 5 1. THE CLEAN WATER ACT, OKLAHOMA'S FEDERALLY-APPROVED WATER QUAL- ITY STANDARDS, AND EPA’S OWN REGU- LATORY PROVISIONS AND INTERPREFA- TIONS, PROHIBIT THE PERMITTING OF NEW DISCHARGES TO PROTECTED WATERS ON THE BASIS OF A “NO DE- TECTABLE IMPACT” STANDARD 5 A. Congress’ Clear Intent In Enacting The 1972 Federal Water Pollution Control Act Amend- ments, and the 1977 Clean Water Act Amend- ments, Was To Reject The Use Of Standards Based on Measurements Of the “Tolerable Effects” Or “Detectable Impact” Of Water Pollution 7 B. Oklahoma's Federally-Approved Water Qual- ity Standards, And EPA’s Own Interpretations Of Its Model Antidegradation Provision, Un- ambiguously Prohibit The Permitting Of New Discharges To Protected Waters On The Basis Of A “No Detectable Impact” Standard 11 ll. THE TENTH CIRCUIT EXERCISED PROPER JUDICIAL REVIEW OVER EPA’S PERMIT ISSUANCE IN THAT EPA’S CONSTRUC- TION OF THE CLEAN WATER ACT AND THE FEDERALLY-APPROVED WATER QUALITY STANDARDS WAS CONTRARY TO CLEAR CONGRESSIONAL INTENT 16 CONCLUSION 19 to ii Table of Authorities Cited. Abramovitz v. EPA, 832 F. 2d 1071 (9th Cir. 1987) 19n American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) 19n Board of Governors of the Federal Reserve Sys. v. Dimension Financial Corp., 474 U.S. 361 (1986) 18n Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988) 18n Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932) 19n Chevron USA v. Yost, 919 F.2d 27 (Sth Cir. 1990) 10n Chevron vy. Natural Resources Defense Council, 467 U.S. 837 (1984) 5,6 Dole v. United Steelworkers of Am.,494U.S.26(1990) = 18n EPA v. State Water Resources Control Board, 426 U.S. 200 (1976) 3, 8, 9, 14, 17 Environmental Defense Fund v. Chicago, 727 F. Supp. 419 (N.D.IIL. 1989) 18 FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981) 18n Fertilizer Institute v. EPA, \991 W.L. 96474 (D.C. Cir. June 11, 1991) 19n FMC vy. Seatrain Lines, Inc., 411 U.S. 726 (1973) 18n FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965) — 191 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 18 Menzel v. County Utilities, 712 F.2d 91 (4th Cir. 1983) 6n Milwaukee v. Illinois, 451 U.S. 304 (1981) ad Motor Vehicle Mfrs. v. State Farm Mutual, 463 U.S. 29 (1983) 18 NLRB vy. Brown, 380 U.S. 278 (1965) 19n TABLE OF AUTHORITIES CITED. National Wildlije Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) Natural Resources Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) Natural Resources Defense Council v. EPA, 915 F.2d 1314 (9th Cir. 1990) Natural Resources Defense Council v. EPA, 863 F.2d 1420 (9th Cir. 1988) Natural Resources Defense Council v. EPA, 822 F.2d 104 (D.C. Cir. 1987) Natural Resources Defense Council v. EPA, 790 F.2d 289 (3rd. Cir. 1986) PIRG v. Powell Duffryn Terminals, 720 F.Supp. 1158 (D.N.J. 1989) PIRG of New Jersey v. C.P. Chemicals, 26 ERC (BNA) 2017 (D.N.J. 1987) Public Employees Retirement Sys. v. Betts, 492 U.S. 158 (1989) SEC v. Sloan, 436 U.S. 103 (1978) Sierra Club v. Union Oil, 813 F.2d 1480 (9th Cir. 1987), vacated on other grounds, 485 U.S. 931 (1988), reinstated 853 F.2d 667 (9th Cir. 1988) Social Security Board v. Nierotko, 327 U.S. 358 (1946) Student PIRG of New Jersey v. Georgia Pacific, 615 F. Supp. 1419 (D.N_J. 1985) United States v. Earth Sciences, 599 F.2d 368 (10th Cir. 1979) Volkswagenwerk v. FMC, 390 U.S. 261 (1968) Webster v. Luther, 163 U.S. 331 (1896) 18n I8n 10n 19n 10n i. Sn 19n iV TABLE OF AUTHORITIES CITED. STATUTES AND REGULATIONS. The Clean Water Act 33 U.S.C. § 1251 33 U.S.C. § 1251(a) 33 U.S.C. § 1311 33 U.S.C. § 131 1a) 33 U.S.C. § 1342 The Clean Air Act 42 U.S.C. §§ 7471-7473 Oklahoma Water Quality Standards (1982) Section 3 Section 5 Code of Federal Regulations 40 C.F.R. 35. 1550(e (2) (1981) 40 C.F.R. 131.12(a(3) MISCELLANEOUS. Diamond, William R., Director, Standards & Applied Sciences Division, EPA Newsletter: Water Quality Criteria & Standards (June 1991) EPA Civil Penalty Policy (July 8, 1980) Memorandum from James Rogers, Associate General Counsel, Water and Solid Waste Division, to Ken- neth W. Mackenthun, Director, Criteria and Stand- ards Division (Aug. 15, 1979) S. Rep. No. 370, 95th Cong. Ist Sess.. reprinted in 1977 U.S. Code Cong. & Admin. News 4326 14 No. 90-1262 and 90-1266 In the Supreme Court of the United States OCTOBER TERM, 1991 STATE OF ARKANSAS, ET. AL., PETITIONERS, Vv. STATE OF OKLAHOMA, FT. AL., RESPONDENTS. ENVIRONMENTAL PROTECTION AGENCY, PETITIONER, Vv. STATE OF OKLAHOMA, Ev. AL.. RESPONDENTS. ON WRITS OF CERTIORARI, TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Brief for the Oklahoma Wildlife Federation. Introductory Statement. The Oklahoma Wildlife Federation (“OWF"), a party to the proceeding in the court of appeals and an affiliate of the Na- tional Wildlife Federation ("NWF"), is an organization dedi- cated to the protection of Oklahoma wildlife and the restora- 2 tion, preservation and protection of the natural resources that support that wildlife, including Oklahoma's rivers, lakes and streams. As an affiliate of the National Wildlife Federation, its interest in the protection of Oklahoma's wildlife and natural resources is consistent with, and a part of, an interest in pro- tecting, restoring and preserving wildlife, and natural re- sources, nationwide. As an environmental organization in Oklahoma, OWF natur- ally has an interest in the protection of Oklahoma's waiters, including those “intra” state portions of the Illinois River at issue here. But, OWF recognizes that its goal and Oklahoma's goal in preserving and protecting the waters of Oklahoma is also an integral part of a goal to improve and preserve the quality of intra and interstate waters, nationwide, a goal also set forth expressly by Congress in the Clean Water Act. To serve this goal, the federally-approved water quality standards of Oklahoma, as will be further demonstrated below, were adopted as and are a part of a national scheme to improve the quality of all United States” waters by preventing the addition of pollutants to those waters by any source in any state. Summary of Arugment. This case ts readily resolved by a reading of the plain lan- guage of the Clean Water Act and the plain language of fed- erally-approved Oklahoma water quality standards.' The Clean ‘The Clean Water Act will be referred to as the “Clean Water Act” or “the Act” The Federal Water Pollution Control Act of 1972. as amended by the Clean Water Act of 1977, Pub. Law. No. 95-217, 91 Stat. 1566 (1977) is the “Clean Water Act” or “Act” to which OWF reters. All citations to the Act are to Tithe 33 of the 1984 United States Code Codification. For the sake of clarity and consistency references will be to codified sections rather than to the sections as passed by Congress. For the sake of brevity, OWF does not specifically reference each relevant section or definition of the Act. but instead incorporates the references and explanations of those sections and definitions set torth in the State of Oklahoma's briet 3 Water Act is expressly premised on a total prohibition of any discharge of pollutants to all navigable waters, except under the exclusive and carefully defined permitting sections of the Act's “National Pollution Elimination Discharge System.” 33 U.S.C. §§ 1311(a), 1342. See also, United States v. Earth Sciences, 599 F.2d 368 (10th Cir. 1979), Natural Resources Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (emphasis added). The federally-approved Oklahoma water quality standards unambiguously prohibit any new discharges and any degradation to protected waters such as the [Ilinois River. Oklahoma Water Quality Standards §$ 3 and 5 (J.A. at 28 and 46). Neither the Clean Water Act's exclusive permitting section (which by its title alone focuses on “national pollutant discharge elimination”), nor the federally-approved water quality stand- ards provide any basis for the use of an “no detectable impact” standard to create an exception to both the Act's and standards’ express prohibitions against the addition of pollutant discharges to the nation’s waters. Rather, in enacting the Clean Water Act, specifically through its 1972 (and 1977) amendments, it was Congress’ clear intent to reject the use of indefinite stand- ards which had focused on measurements of the “tolerable effects” (or “detectable impact’) of water pollution, and which, in prior water pollution acts, had proven “ineffective” in sol- ving the nation’s water pollution problems. 33 U.S.C. § 1342, EPA v. State Water Resources Control Board, 426 U.S. 200, 202 (1976) (emphasis added). In its amendments to the prior acts, Congress instead shifted its focus to the “preventable causes”, of pollution (i.e. poit sources) and the elimination of additional pollutant discharges from those sources. /d. There is no better evidence of this shift in focus by Congress then that which is found in the plain language of the Clean Water Act and Oklahoma's federally-approved water quality stand- ards. 4 It is both alarming and remarkable that EPA chose to ignore such plain and unambiguous mandates against the addition of pollutants to the protected waters of the Illinois River by issuing - Fayetteville a permit to discharge its wastes into those waters. It is even more remarkable and alarming that EPA did so in complete contradiction to its own longstanding interpretations of its model antidegradation provision (on which Oklahoma’s standard is based), in which EPA had correctly concluded that the plain meaning of an antidegradation standard as applied to protected, “outstanding natural resource waters” is “no de- gradation”, and no allowance of new point source discharges (through a permit issuance), to those waters. Memorandum, James A. Rogers, Associate General Counsel, Water and Solid Waste Division to Kenneth M. MacKenthun, Director, Criteria & Standards Division (Aug. 15, 1979). Here, ignoring its own plain meaning interpretation, EPA mistakenly allowed new discharges into the protected waters of the Illinois River which it itself had previously determined were unambiguously prohi- bited. Moreover, in place of the plain language of both the Clean Water Act and the federally-approved Oklahoma standards, EPA proposes a dangerous and imprecise standard through which it seeks to create an exception where none exists, a standard which provides that new discharges to protected wat- ers are permissible so long as they do not have an individual “detectable impact on the current water quality.” (EPA Br. at 22.) The unavoidable consequences of adopting this standard are alarming; any potential discharger of pollutants to protected (or other) waters would be allowed to discharge so long as as it could show that its individual discharges were not “detecta- ble.” This is a policy “absurdity”, which could not be further from Congress’ unambiguous intent to e/iminate the discharge of pollutants to the nation’s waters. 33 U.S.C. §§ 1251, 131 1 (a). 5 Yet, once again remarkably, EPA argues for deference for its interpretation (EPA Br. at 15, 30-33). EPA’s construction of the Clean Water Act and Oklahoma's federally-approved water quality standards, a construction which incorrectly per- mitted new pollutant discharges to a protected water body on the basis of an inappropriate and prohibited standard, could not be more contrary to Congress’ clear intent in enacting the Clean Water Act. EPA is entitled to no deference for this construction. Rather, in reversing the EPA’s NPDES permit issuance, the Tenth Circuit simply did what it was required to do (and what EPA failed to do, but should have done), it gave effect to the “unambiguously expressed intent of Congress.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). Argument. 1. THe CLEAN WaTeR ACT, OKLAHOMA’S FEDERALLY- APPROVED WATER QUALITY STANDARDS, AND EPA’s OWN REGULATORY PROVISIONS AND INTERPRETATIONS, PROHIBIT THE PERMITTING OF NEW DISCHARGES TO PROTECTED WAT- ERS ON THE BASIS OF A “No DETECTABLE IMPACT” STAND- ARD. The Clean Water Act, 33 U.S.C. §§ 1251, et. seg., is premised on a prohibition of any discharge of pollutants to navigable waters, except as authorized by the exclusive and carefully-defined permitting sections of the Act. 33 U.S.C. §$§ 131 i(a), 1342. See also, Earth Sciences; Costle (emphasis added). It is the goal of the Act to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters”, and to that end, that “the discharge of pollutants into navigable waters be eliminated by 1985.” 33 U.S.C. § 1251 (emphasis added). 6 The only means by which a point source discharger can escape the total prohibition of § 1311(a) is to apply for and obtain a permit specifically authorizing the discharges under the Act’s “National Pollution Elimination Discharge System” (NPDES). 33 U.S.C. §§ 131 1(a), 1342, Earth Sciences, Cos- tle.’ This case involves the issuance of a permit by EPA to the city of Fayetteville, Arkansas for a municipal wastewater treat- ment plant which proposed to discharge treated wastewater into both the White River in Arkansas, and the Illinois River, an Arkansas-Oklahoma interstate stream.’ By virtue of the Clean Water Act’s plain language, Fayetteville’s proposed dis- charge of pollutants into the navigable waters of the White and Illinois Rivers was presumptively prohibited. 33 U.S.C. §$ 1311(a). The exclusive means through which Fayetteville could possibly avoid this prohibition was through seeking, which it did, a permit under the Act's NPDES program.” 33 U.S.C. §§ 1311, 1342. In addition (and as EPA itself correctly concluded), the issuance of a permit to Fayetteville for its potential “pollutant discharges” also depended on compliance with the federally- approved water quality standards of Oklahoma for the Illinois The plain language of the Act's permitting section, the “National Pollutant Discharge Elimination System” explicitly reflects the primary purpose of that section to scrutinize proposed discharges through the permit application process. the ultimate goal being “pollutant discharge elimination.” 33 U.S.C. § 1342, see also, Menzel v. County Utilities, 712 F.2d 91, 95 (4th Cir. 1983) (emphasis added) Further, permits only may be granted if the discharge at issue will meet all applicable requirements under the Act, there is no requirement to issue a permit. 33 U.S.C. §$ 1342(a)(1) (emphasis added) The White River and the Illinois River are “navigable waters” under the Act The Fayetteville wastewater treatment plant is a “point source” under the Act which sought to discharge pollutants into navigable waters, specifically the White River and the Illinois River J River, a designated “scenic river” into which Fayetteville, in part, sought to discharge its wastes. Those standards prohibit “any new point source discharge of wastes. . .” into “scenic rivers” (such as the Illinois River) and “no degradation” of high quality waters, including “scenic rivers”. Oklahoma Water Quality Standards §§ 3, 5 (1982) (J.A. at 28, 46) (em- phasis added).* Despite the plain language of both the Clean Water Act and the federally-approved standards, EPA issued the permit. It did so based on a standard which provided that the permit issuance was appropriate if Fayetteville’s proposed pollutant discharges would not cause an “actual detectable” or “measurable” violation of Oklahoma’s federally-approved water quality standards. The central issue in this case is whether EPA’s issuance of the permit was in accordance with the Clean Water Act and the federally-approved standards. For the reasons stated below, it clearly was not. A. Congress’ Clear Intent In Enacting The 1972 Federal Water Pollution Control Act Amendments, And The 1977 Clean Water Act Amendments, Was To Reject The Use Of Standards Based On Measurements Of The “Tolerable Effects” Or “Detectable Impact” Of Water Pollution. “The first principle of (the Clean Water Act) ts. . . that it is unlawful to pollute at all. . . The foremost national goal ‘Again, for the sake of brevity, OWF incorporates into its brief those arguments made by the State of Oklahoma that the plain language and meaning of the Clean Water Act requires a state to comply with a// Clean Water Act standards, including those state standards incorporated into the Act through federal approval. Once tederally-approved. the water quality standards of a particular state as to its navigable waters, intra or interstate, are standards that must be complied with by any other State that contains a “point source” which seeks to discharge pollutants into the “navigable waters” of the particular state. OWF points out that, although the Standards at issue here are those of a “downstream” state in relation to a discharger located in an “upstream” state. some of the nation’s most significant water bodies (i.¢. the Great Lakes) demonstrate situations where the waters of one state affect the waters of another state without being in a “downstream/upstream™ location to each other. 8 enunciated by Congress is the complete elimination of the discharge of pollutants.” Natural Resources Defense Council v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987). As this Court has stated: Congress's intent in enacting (the Act) was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge ts prohibited unless covered by a permit, which directly subjects the discharge to an administrative apparatus established by Congress to achieve its goals. The major purpose of (the Act) was to establish a com- prehensive long-range policy for the elimination of water pollution. Milwaukee vy. Illinois, 451 U.S. 304, 318 (1981), citing, in part, S. Rep. No. 92-414 at 95, 2 Leg. His. 1511 (emphasis by court in original).° The Act's sponsors “successfully insisted on a zero-discharge-of-pollutants goal despite strong objection from both within and without.” National Wildlife Federation v. Gorsuch, 693 F.2d 156, 179-80 (D.C. Cir. 1982) (emphasis added). In amending the 1948 and other prior Acts, Congress en- gaged in a “total restructuring” and “complete rewriting” of existing water pollution legislation. Milwaukee at 317-18, cit- ing | Leg. Hist. 350-351 (remarks of Chairman Blatnik of the House version of the Amendments); id., at 359-360 (remarks of Rep. Jones, S. Rep. No. 92-414, p. 95 (1971), 2 Leg. Hist. 1511; id., at 1271 (remarks of Chairman Randolph of the Senate Committee which drafted the Senate version of the amendments), and State Water Resources at 202. The court's reference ts actually to “the Amendments” of 1972. As stated supra, 2n, The Federal Water Pollution Control Act ot 1972. as amended by the Clean Water Act of 1977, Pub. Law No. 95-217, 91 Stat. 1566 (1977) is the “Act” to which OWF reters. Y In its “total restructuring” of the Act, through both its 1972 (and 1977) amendments, Congress purposefully decided to alter the earlier Acts’ exclusive reliance on water quality stand- ards which had proven ineffective and which had focused on “the tolerable, effects rather than the preventable causes of water pollution...” State Water Resources at 202 (emphasis added). Rather, the amendments aim at achieving maximum “effluent limitations” on “point sources.” Water quality stand- ards are used as “a supplementary basis for effluent limitations . 80 that. . . point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.” /d. at 204-5. See also, S. Rep. No. 370 at 42, 95th Cong. Ist Sess... reprinted in 1977 U.S. Code Cong. & Admin. News (4326). Particularly through the NPDES program, the focus of the Act, as amended, shifted from one which had looked at “toler- able effects” of water pollution to one which now looks at the “preventable causes” of the pollution, i.e. the “point source” of “pollutant discharges”. Rather than relying on measure- ments of the “tolerable effects” (or “detectable impact”) of discharges being made, the amended Act secks to prevent any new “pollutant discharges” by a “preventable cause” of pollu- tion, namely a “point source.” /d., Also see, 33 U.S.C. $ 131 1Ma).° Because it had proven ineffective, Congress expressed clear intent in its enactment of the 1972 and 1977 amendments to reject a “tolerable effects” (‘no detectable impact”) standard as a Standard for solving the nation’s water pollution problems. * As demonstrated infra, pp. 11-15, Oklahoma's tederally-approved water quality standards, in accordance with the amended Act's shift in focus, also emphasize preventing source activity through the application of antidegradation standards for protected waters, 1.¢. by expressly prohibiting any new point sources discharge into those waters. Moreover, EPA’s own prior interpretation of its model antidegra- dation provision concluded that a focus on arguments over 4 measurement of “1 or vy micrograms” (1.e., the tolerable effects” or “detectable impact” of water pollution) is “irrelevant” and inappropriate when evaluating whether a permit should be issued to allow discharges to protected waters. See mfra, pp. 12-13 10 Yet, it is just such an ineffective “tolerable effects” or “de minimis” standard that EPA resurrected here in its “no detect- able impact” approach to the discharges from the Fayetteville Plant. EPA determined that, if the adverse “effects” of Fayet- teville’s discharges to the Illinois River could not be definitely demonstrated, then they were effects that were “tolerable”, and allowable, ina NPDES permit. In creating this indefinite standard, EPA mistakenly relied on a pre-1972 standard that Congress had so unambiguously altered in its Amendments. ’ In enforcement actions under the Act against dischargers who have violated the terms of their permits. courts have continually reiterated what Congress so clearly intended, namely there 1s “no de minimes” standard under the Act and no need for a showing of actual injury for a penalty to be entorced. Sierra Club vy Union Oil, 813 F.2d 1480. 1491 (9th Cir, 1987). vacated on other erounds. 108 S.Ct L102 (1988), remstated, 853 F.2d 667 (9th Cir, 1988). Oo The Clean Water Act and the regulations promulgated under it make no provision for “rare viola- tions”), See also, Chevron USA v. Yost, 919 F.2d 27 (Sth Cir, 1990) (discharging foreign substance violates the Clean Water Act without a showing of actual injury). PIRG v. Powell Duffryn Terminals, 720 Supp. 1158. 1167 (DN 3 1989) (court rejected defendant's contention that no penalty is appropriate absent an adverse impact on the river into which it had discharged pollutants), PIRG of New Jersey ¥. CP. Chemicals, 26 ERC (BNA) 2017, 2021 (DN J. 1987) (to reduce penalties due to a limited or undetectable impact would result in a situation where “any permittee could ignore (its permit requirements) as long as ut discharged into already heavily polluted waters”) (emphasis added), A/so see, generally, Student PIRG of New Jersey. Georgia Pacific OAS FE. Supp. 1419, 1424(D. NJ. 1985) Further, EPA itself. in a notably contrary position to that which it has taken here. in arguing for the imposition of penalties on violators of the Act. has directly stated that a “de minimis” standard ts unworkable. EPA Civil Penalty Policy at VO (July 8. 1980) (all pollutants introduced into the environment create some harm or risk... . and it will be difficult in many cases to precisely quantity the harm or risk caused by the violation in question.) Moreover, in light of Congress’ “establishment of such a self-consciously com- prehensive program” in enacting the Act. Congress. no doubt, would have included a “de minimis” or “no detectable impact” exception had it wanted to. In contrast, Congress did plainly state such an exception in enacting the Clean Air Act which prohibits only “significant deteriorations” of air quality in “clean air areas”, with “significant” quantified in terms of maximum allowable increases in pollutant concentrations. 42 U.S.C. 88 7471-7473. This ts not to say that Congress was “silent” here. Section 131 1(a) alone. in its prohibition against pollutant discharges. manifests Congress’ voice and intent. 33. U S.C. §t3tita) B. Oklahoma's Federally-Approved Water Quality Stand- ards, And EPA's Own Interpretations Of Its Antidegrada- tion Provision, Unambiguously Prohibit The Permitting Of New Discharges To Protected Waters On The Basis Of A “No Detectable Impact” Standard. Under § 5 of Oklahoma's federally-approved water quality standards, the Illinois River has been designated as a “scenic river’. “Scenic rivers” (also under § 5) are protected by a prohibition of any new point source discharge of wastes or increased load from an existing point source except under conditions described in Section 3.° Oklahoma Water Quality Standards § 5 (1982) (J.A. at 46) (emphasis added). Section 3 sets forth the standards’ “ Antidegradation” Policy. Oklahoma Water Quality Standards § 3 (J.A. at 28). Although the anti- degradation policy expressly provides for “lower water quality as a result of necessary and justifiable economic or social development” in certain instances, it unequivocally provides that “no degradation shall be allowed in high quality waters which constitute an outstanding resource, or in waters of excep- tional recreational or ecological significance. These include water bodies . . . designated (as) ‘scenic rivers’. /d. (em- phasis added). Section 3 clearly makes no excepiion to Section 5s otherwise absolute prohibition of anv new point source discharge of wastes, and thus unambiguously prohibits any new pollutant discharge of wastes into the Illinois River. Further § 3 expressly prohibits any degradation to the subject “scenic river”. The standards could not be any more simple or clear; no new point source discharge and no degradation is allowed to scenic rivers, which include the interstate Illinois River. Moreover, as EPA itself points out, the antidegradation pol- icy of the Oklahoma water quality standards is virtually iden- tical to EPA’s own model antidegradation standard in effect 12 at the time (EPA Br. at 22-23).* EPA further states that, because of this replication, in considering the Fayetteville permit appli- cation, it interpreted Oklahoma's standard as identical to the federal model (EPA Br. at 23). EPA then maintains, though, that “there has been no national rulemaking or determination on how to interpret and apply the terms of the (model antide- gradation) standard”, and that it has not attempted to prescribe “what constitutes a ‘lowering’ of water quality” in an ONRW under an antidegradation standard (EPA Br. at 23-24). But, despite EPA's statements to the contrary in its brief, EPA has, on more than one occasion, evaluated its antidegra- dation standard and its application to ONRWS. In a 1979 Office of the General Counsel legal opinion, EPA evaluated whether, under the Clean Water Act, EPA may designate par- ticular waters as ONRWS where states fail to do so, and further evaluated whether it may promulgate water quality standards to protect state-designated ONRWS. Memorandum from James A. Rogers, Associate General Counsel, Water and Solid Waste Division to Kenneth M. MacKenthun, Director, Criteria and Standards Division (Aug. 15, 1979). In answering question 2, EPA concluded as follows: 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- "EPA's standard is termed a Tier III antidegradation standard and the waters protected by it are known as “outstanding national resource waters” or ONRW The standard in effect at the time provided in pertinent part, that “no degradation shall be allowed in high quality waters which constitute an outstanding National resource, such as waters... of exceptional recreational or ecological significance” 40 C.F.R. 35. 1550(e 2) (1981) (later amended to current regulation, 40 C_F_R 131.12¢a3)) (EPA Br. at 22-23) (emphasis added). 13 for an ONRW, since the standard is no degradation; 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. Id. at 4 (emphasis in original). In a footnote to its statement that the standard is no degradation, EPA points out that the standard is “unlike the Clean Air Act concept which is no significant deterioration.” /d.” EPA conveniently omits any mention of this longstanding legal opinion that clearly highlights the inconsistency of EPA’s flawed interpretation of Oklahoma's federally-approved stand- ards here. As EPA itself stated, the antidegradation standard for an ONRW (such as the Illinois River) is no degradation.” Memorandum, James A. Rogers (Aug. 15, 1979) at 4. The very “arguments over x or y micrograms per cubic meter” that EPA engaged in here in setting forth its “no detectable impact” standard, are “irrelevant.” /d. Most importantly, EPA’s prior ’ In 1989. Catherine A. Winer (listed as an attorney for EPA on the Solicitor General's Brief im the case currently before the Court) reviewed the 1979 legal opimon in light of 1983 Water Quality Standards rulemaking which referred to the antidegradation policy. Ms. Winer’s review did nor alter the 1979 opinion, except to state that the preamble to the 1983 regulations discussed the “no degradation” requirement for ONRWS and “explained that EPA was modifying it slightly to allow minor, short-term impacts which did not interfere with the character of the ONRW .,” in part because States were being deterred by the strictness of the no degradation policy trom designating ONRWS. Memorandum from Catherine A. Winer, Attorney, Water Division, to William Diamond, Director of Criteria and Standards Division (May 8, 1989). EPA explicitly admits in its bret that the 1983 change in its regulation “did nor affect the restrictions for long-term sources of pollutants”. Rather the change was only to allow tor temporary degradation as- sociated with construction projects (EPA Br. at 23, citing to 48 Fed. Reg. SI, 402-51, 403 (1983) (emphasis added) 14 interpretation, in direct contradiction to its interpretation here, expressly states that “whenever a point source applied for a permit to discharge into an ONRW (i.e. as Fayetteville did), (we could) simply deny the permit.” Id. (emphasis added). EPA again recognized the plain meaning of “no degradation” as recently as June, 1991 in an EPA newsletter. There, Mr. William Diamond (to whom Ms. Winer had addressed her 1989 memorandum) stated that “Oklahoma currently maintains a strict antidegradation policy. . . Requirements for Tier 3 Waters, ONRW’s, are implemented by allowing no new point source discharge and no increased loading and concentration in existing permits.” Diamond, William R. Director, Standards & Applied Sciences Division, Newsletter: Water Quality Criteria & Standards At 5 (June 1991) (emphasis added). It is remarkable that EPA (at the very same time it was drafting its brief in this case) could recite the very water quality stand- ards at issue here correctly in its own newsletter, but offer a completely different interpretation for the purposes of this liti- gation. It is undisputed that the permit at issue here would result in “pollutant discharges” into the Illinois River in Oklahoma from a new point source.'’ EPA's decision to employ a standard to allow these discharges on the basis that they would not have a “detectable” or “measurable” impact on the protected waters of the Illinois River is contrary to the Clean Water Act's explicit goal to eliminate the discharge of pollutants into the nation’s waters. 33 U.S.C. §§ 1251(a), 1311(a) (emphasis added). EPA’s decision further contravenes Congress’ unam- biguous intent, in enacting the Act, to reject “inefficient” stand- ards premised on measurements of the “tolerable effects” (or “detectable impact”) of water pollution, and to adopt clearer, “For example, the ALJ estimated that 6 pounds of phosphorous alone would reach the Oklahoma boarder daily based on Fayetteville’s daily maximum allowable discharge of 3.5 million gallons of effluents. Ark. Pet App. 1 29a. 15 more efficient standards focused on point source activity and the prevention of additional discharges from those point sources. See, id. and State Water Resources at 202. Oklahoma's federally-approved water quality standards em- body Congress’ intent by explicitly prohibiting any new point source discharge into protected waters (ONRWS), such as the Illinois River. Oklahoma Water Quality Standards §§ 3 and 5 (J.A. at 28, 46). EPA’s decision to ignore the plain language of both the Act and these standards and allow Fayetteville’s discharges on the basis of an “inefficient” and indefinite stand- ard, ts both remarkable and alarming. The decision is even more remarkable and alarming in that it completely contradicts EPA’s own longstanding interpretation of its antidegradation provision where EPA had correctly concluded that, “whenever a point source applied to a permit discharge into an ONRW, (we could) simply deny the permit.” Id. (emphasis added). Moreover, the unavoidable result of replacing the Act's and standards’ plain language with EPA’s proposed indefinite standard, a standard under which individual new discharges to protected waters would be permissible so long as they would have no “detectable impact on the current water quality”. is simply dangerous (EPA Br. at 22). Use of this indefinite stand- ard would result in an allowance of any pollutant discharges to protected (or other) waters so long as a potential discharger could show that its individual discharges had no “measurable” impact. As stated by the Tenth Circuit, such a policy is an “absurdity” which completely contravenes the explicit lan- guage and purpose of the Act to e/iminate discharges 33 U.S.C. § 125h(ay1): (Op. Below, 908 F.2d 595, 632), (emphasis added)."' The Tenth Circuit focused its conclusion on the “absurdity” of EPA’s use of a “no detectable impact” standard pn the tact that the Hlinot River was an already polluted body of water It, ultemate holding was that “where water quality standards violations are already occurrmmy in the recerving waters, no additional point source 16 Il. THe TENTH Circuit EXERCISED PROPER JUDICIAL REVIEW Over EPA’s Permit ISSUANCE IN THAT EPA’S CONSTRUC- TION OF THE CLEAN WATER ACT AND THE FEDERALL Y-AP- PROVED WATER QUALITY STANDARDS WAS CONTRARY TO CLEAR CONGRESSIONAL INTENT. In a review of an agency's construction of a statute it ad- ministers, a court is faced with two questions. First, the court must evaluate whether “Congress has directly spoken to the precise question at issue.” Chevron at 842. If Congress's intent is clear, “that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional in- tent.” Id. at 843, citing cases (citations omitted, emphasis added). If, however, the statute at issue is “silent or ambiguous with respect to the precise issue”, the question for the court is whether the Agency's construction of the statute was “per- missible”. /d."° discharge to those waters may be permitted if it would contribute to the conditions that produce the violations”. (Op. Below, 908 F 2d at 634). While this case does not present the issue, use of a “no detectable impact” standard would be equally “absurd” and prohibited, tor many of the reasons stated herein, if apphed to waters that did not have pre-existing violations of water quality standards In reviewing EPA’s permit issuance under the Administrative Procedure Act and appropriate case law. the Tenth Circuit conducted a comprehensive review of the Clean Water Act. the Oklahoma federally-approved water quality standards. and Congress’ intent in enacting the Act. (See, Op. Below, 908 F.2d 595, through. out, but in particular at 597-599, 602-607, 609-620 and 630-34). The court, though, also reviewed the background and record of EPA’s decision to determine whether EPA's interpretation of the Act was “reasonable”. While we agree with the Tenth Circuit's conclusion that EPA’s permit issuance was “arbitrary and capricious” and “otherwise not in accordance with law”, it is OWF’s position that it was not necessary for the court to have reached a “reasonable” or “permissible” analysis of EPA's decision. This ts so in that the intent of Congress and the plain language of the Act, along with the plain language of the federally approved standards, are clear on the precise question at issue, namely, they unambiguously prohibit the issuance of a permit to allow discharges into protected waters on the basis of a 17 As reiterated throughout, the intent of Congress, as expres- sed in the plain statutory language of the Act and the Act's legislative history, is clear. Congress unambiguously created a statute to “restore and maintain” the nation’s waters, and proclaimed a goal that “the discharge of pollutants into navig- able waters be eliminated” 33 U.S.C. § 1251I(a). To effectuate this goal, it was clearly Congress’ intent in amending the nation’s prior water pollution acts to shift the focus from the prior acts’ standards and provisions which had emphasized “the (tolerable) effects” of water pollution to a system that now unequivocally focuses on eliminating new pollutant dis- charges by “preventable causes (i.e. “point sources” such as Fayetteville). See, 33 U.S.C. §§ 1251, 1311, 1342, State Water Resources at 202, 204-5. Oklahoma's federally-ap- proved standards and EPA’s own longstanding interpretation of its antidegradation regulation clearly support Congress’ in- tent. As it had to do (and as the Tenth Circuit in reaffirming EPA's decision had to do), EPA correctly interpreted the plain language of the Act to determine that the federally-approved water quality standards of Oklahoma were applicable to Arkan- sas’ proposed discharges. On this issue alone, EPA properly gave effect to the “unambiguously expressed intent of Con- gress.” Chevron at 843. Unfortunately, EPA then diverged from its plain meaning interpretation, and erroneously issued a NPDES permit on the basis of a “no detectable impact” standard, in a decision which unequivocally contravenes the plain language of the Clean Water Act, Congress’ unambiguously expressed intent in “no detectable impact” standard. Chevron at 842. If, though, this Court were to determine that “ambiguity” does exist in the statutory language of the Act and in Congress’ intent, the record, as evaluated by the Tenth Circuri, conclusively sup- ports a determination that the agency's construction was both impermissible and “arbitrary and capricious” 18 enacting the Act, and the plain language of the federally-ap- proved water quality standards which EPA had just correctly determined it had to apply. In issuing the permit, it contradicted itself and its own longstanding explicit ‘stdtements that the plain meaning of an antidegradation standard with respect to protected waters, is “no degradation” and no allowance of new point source discharges. EPA is simply not entitled to deference for a construction which so clearly contravenes clear Congres- sional intent, an intent which EPA itself had previously acknowledged in its own interpretations of its model antidegra- dation regulation, but here chose to ignore. Chevron at 842-43. Rather, EPA’s blatantly inconsistent construction reduces any deference to which it might have otherwise been entitled. /NS v. Cardoza-F onesca, 480 U.S. 421, 446 (1986); Motor Vehicle Mfrs. v. State Farm Mutual, 463 U.S. 29, 47-48 (1983); Environmental Defense Fund v. Chicago, 727 F. Supp. 419, 424 (N.D.IIl. 1989) (emphasis added). As such, the Tenth Circuit court, as the “final authority on issues of statutory construction” did what it was required to do; it rejected EPA’s erroneous construction of the Act and the federally-approved standards, a construction which allowed a NPDES permit to be granted on the basis of a dangerous and “absurd” standard, and instead gave effect to the “unam- biguously expressed intent of Congress”. Chevron at 843. This Court, and numerous other courts, as they have been required to do, have summarily rejected such blatantly dangerous and contrary agency constructions.'’ This Court should uphold the Tenth Circuit's decision and do so here. '’ For those cases in which this court and other courts have rejected such construc- tions, see Dole v. United Steelworkers of Am. , 494 U.S. 25 (1990); Public Employ- ees Retirement Sys. v. Betts, 492 U.S. 158 (1989), Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988); Cardoza-F onseca, 480 U.S. 421, Board of Gover- nors of the Federal Reserve Sys. v. Dimension Financial Corp., 474 U.S. 361 (1986), FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32 (1981); SEC v. Sloan, 436 U.S. 103, 117-118 (1978); FMC v. Seatrain Lines, Inc. 411 U.S. 726, 745-746 (1973): Volkswagenwerk v. FMC, 390 U.S. 261. 19 Conclusion. For the foregoing reasons, the judgment of the Tenth Circuit Court of Appeals should be affirmed. Respectfully submitted, SUSAN HEDMAN THEODORE E. DiNSMOOR NATIONAL WILDLIFE Counsel of Record FEDERATION CYNTHIA J. HELENEK GREAT LAKES NATIONAL GASTON & SNOW RESOURCE CENTER One Federal Street 802 Monroe Boston, Massachusetts 02110 Ann Arbor, Michigan 48104 (617) 426-4600 (313) 769-3351 272 (1968); NLRB v. Brown, 380 U.S. 278, 291 (1965): FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965); Social Security Board \. Nierotko, 327 U.S. 358, 369 (1946), Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932), Webster v Luther, 163 U.S. 331, 342 (1896); Fertilizer Institute v. EPA, 1991 W_L. 96474 (D.C. Cir. 1991) (EPA construction of term “release” under CERCLA is umpermis- sible because it contravenes plain meaning of statute), Natural Resources Defense Council v. EPA, 915 F.2d 1314 (9th Cir, 1990) (EPA not accorded deference for its restrictive construction of 304(1) (33 U.S.C. 131401) of dhe Clean Water Act IN its regulations, in that the regulations were not inaccordanee with clear statutory provisions); Abramovitz v. EPA, 832 F. 2d 1071 (9th Cir 1987) BPA exceeded its authority by defernng action indefinitely, ¢ contrary to am exphcnt deadline in the Clean Water Act); American Mining Cangress ¥. EPA. 824#_2d 1177 (D.C. Cir 1987) (EPA's construction of the term “discarded material” under RCRA con- travenes clear interest of Congress); Natural Resources Defense Council v. EPA, 863 F 2d 1420 (9th Cir. 1988) (struck down EPA's alternative limitation provision that creates possibility of incalculable toxic discharges without regard to degradation of marine environment as an “exception that threatens to swallow the rule” and as arbitrary, capricious, and contrary to the letter and spirit of the Clean Water Act); Natural Resources Defense Council v. EPA, 790 F.2d 289 (3rd. Cir. 1986) (EPA's definition, in its regulations, of phrase “consistent publically owned treatment works removal” violates Clean Water Act). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A14. Public record. Not legal advice.