Reply Brief — Arkansas v. Oklahoma

Nos. 90-1262, 90-1266

OFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

STATE OF ARKANSAS, et al.,

. Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENGY,

Petitioner,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF OF PETITIONERS

IN No. 90-1262

WINSTON BRYANT EDWARD W. WARREN, P.C.

Attorney General DAVID G. NORRELL

MARY B. STALLCUP (Counsel of Record)

ANGELA S. JEGLEY GARY E. MARCHANT

OFFICE OF THE DAWN P. DANZEISEN

ATTORNEY GENERAL KIRKLAND & ELLIS

200 Tower Building Suite 1200

323 Center Street 655 Fifteenth Street, N.W.

Little Rock, AR 72201 Washington, D.C. 20005

(202) 879-5070

Dated: September 4, 1991

( Additional Counsel Listed On Inside Front Cover)

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

JAMES N. McCorbD

CITY OF FAYETTEVILLE

207 West Center Street

Fayetteville, AR 72701

ANNE ROBERTS BOBO

A.D.P.C. & E.

P.O. Box 8913

Little Rock, AR 72219-8913

WALTER R. NIBLOCK

THE NIBLOCK LAW FIRM

P.O. Drawer 818

Fayetteville, AR 72702

NANCY L. HAMM

LAW OFFICES OF

LAURA J. MCKINNON

One East Center, Suite 211

First National Bank Building

Fayetteville, AR 72702

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDINGS*....____. i

TABLE OF AUTHORITIES... —<CsS iii

ESE 1

-~ I. THE CWA GIVES EPA DISCRETION

WHETHER TO IMPOSE ADDITIONAL

RESTRICTIONS TO PROTECT DOWN.

STREAM WATER QUALITY ........_.. 2

A. The Goals Of The Act Do Not Support Re-

spondents’ Statutory Construction... 2

B. The CWA Expressly Grants Permitting

Agencies The Discretion To Arbitrate In-

terstate Disputes On A Case-By-Case Basis.. 6

C. The Legislative History, EPA‘s Regulations,

And Ouellette Further Confirm That Down-

" Permit Based On EPA’s Discretion Whether

To Apply Downstream Standards... 13

Il. EVEN IF DOWNSTREAM STANDARDS

WERE AUTOMATICALLY APPLICABLE,

THE COURT OF APPEALS SHOULD NOT

HAVE OVERTURNED THE PERMIT IN

ESS SE 14

A. The CWA Delegates To EPA The Discretion

To Determine Compliance With Downstream

a A 14

B. Federal Law Does Not Require A Ban On

New Discharges... 16

*There have been no changes in the parties to the proceedings

listed on page ii of the Arkansas petitioner’s initial brief on the

merits.

ii

TABLE OF CONTENTS—Continued

Page

C. The Oklahoma Antidegradation Standard

Also Does Not Prohibit The Fayetteville

CONCLUSION .................. pneeneenibenetie sinisiadhdeplamscbibtaiiidani linia 20

iii

TABLE OF AUTHORITIES

Cases Page

Adams v. Howerton, 673 F.2d 1036 (9th Cir.),

cert. denied, 458 U.S. 1111 (1982) 2.00000... 8

Air Pollution Control Dist. of Jefferson County,

Kentucky v. EPA, 739 F.2d 1071 (6th Cir.

I cictiesientchcateniadamnnadcntachidinciaiayebilialdalesasiandcideibcesieenindsiadebieee 15, 20

Brown Vv. General Services Admin., 425 U.S. 820

ESE SE RES CSE ESS Rae ao UCR 9

California Vv. Federal Energy Regulatory Comm’n.,

I ae, 13

Chevron, U.S.A., Inc. Vv. NRDC, 467 U.S. 837

ad a ea eco nC 12

Chrysler Corp. Vv. Dep't. of Transportation, 472

ee CD GE, BID cccccesinnsccsitcotnnsenonnnsentnesoens 15

City of Milwaukee V. Illinois, 451 U.S. 304 (1981). 20

Commonwealth Edison Co. Vv. Train, 649 F.2d 481

I hae 17

Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981). 20

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193

(1980) x

Edward J. DeBartolo Corp. v. ‘Florida Gulf Coast

Building & Construction Trades Council, 485

RE Ea SS Se 12

EEOC v. Arabian American Oil Co., 111 S. Ct. 1227

(1991)... OR Es i eee RO Re 12

Environmental Defense Fund, Inc. v. Tennessee

Water Quality Control Board, 660 S.W.2d 776

a ccepetinnn 8

EPA Vv. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976)... 15

Ginsberg & Sons Vv. Popkin, 285 U.S. 204 (1932)... 9

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

a Re A: Pee Tea passim

Jett v. Dallas Indep. School Dist., 491 U.S. 701

(1989) . : 9

Lodge 1858, “American Fed’n of Gov't Employees

v. Webb, 580 F.2d 496 (D.C. Cir.), cert. denied,

439 U.S. 927 (1978) ................... thn Smarr Nahe AR 9

iv

TABLE OF AUTHORITIES—Continued

Page

Louisiana Public Service Comm'n. Vv. Federal Com-

munications Comm’n., 476 U.S. 355 (1986)... 8

MacEvoy Co. Vv. United States, 322 US. 102

SEED cncssennipeenecibtntibbaivetndideiameneiioenenteasen 9

Maislin Industries, U.S., Inc. Vv. Primary Steel,

US OL 12

Miner’s Advocacy Council v. State Dep’t of Envi-

ronmental Conservation, 778 P.2d 1126 (Alaska

1989), cert. denied, 110 S.Ct. 1127 (1990) —........ 8

National Wildlife Fed’n. v. Federal Energy Regu-

latory Comm’n., 912 F.2d 1471 (D.C. Cir. 1990).. 8

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

i ON, ois resi ciitinrenertienatiiiiatepipaiiantemmnns 4

NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975)... 10

Paccar, Inc. v. National Highway Traffic Safety

Admin., 573 F.2d 632 (9th Cir.), cert. denied,

ENTE SESS SEER ar 15

Patterson v. McLean Credit Union, 491 U.S. 164

IIIT esciincincetticiesincainendeeiatiasenneiatiniantineaniessipieimeneaen 12

Puerto Rico Department of Consumer Affairs V.

Isla Petroleum Corp., 485 U.S. 495 (1988) _......... 13

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

ee aa eee 13

Rust v. Sullivan, 111 S. Ct. 1759 (1991)... 12

United States v. Storer Broadcasting Co., 351 U.S.

ae 11

Watt v. Alaska, 451 U.S. 259 (1981)... x

Will v. Michigan Dep’t. of State Police, 491 U.S.

BD Ce ntititinttentninientcnestsennititeniniatititintneeeme 10

Statutes and Regulations

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

FE LR een passim

Section 301, 33 U.S.C. § 1311 _..... PR ae 9

Section 301 (b)(1)(C), 33 U.S.C. §13811

Oe 9

Section 401, 33 U.S.C. § 1341 _. ee .. 12

Section 401 (a) (1), 33 U.S.C. § 1341 (a) (1). 7,16

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

v

TABLE OF AUTHORITIES—Continued

Page

Section 402, 33 U.S.C. § 1842 000. passim

Section 402 (a) (3), 33 U.S.C. § 1842 (a) (3).. 1,6,8

Section 402 (b), 33 U.S.C. § 1342(b) 00. 8

Section 402 (b) (5), 33 U.S.C. § 1342 (b) (5).. 1, 6, 8,

10

Section 402 (d) (2), 33 U.S.C. § 1342 (d) (2).. 1, 6, 7,

15

Section 402 (d) (3), 33 U.S.C. § 1342 (d) (3).. 7

Section 510, 33 U.S.C. § 1870 000. 9,19

40 C.F.R. § 122.4 (d) tL LE a eR Oe 11,14

40 C.F.R. § 122.44 (d) (4) ......... OE ac,» a, We 11

eee 17

48 Fed. Reg. 51,413 (1983)... ents 11

Legislative Materials

117 Cong. Rec. 38,800 (Nov. 2, 1971) (statement

of Sen. Muskie) , reprinted in 2 Senate Comm. on

Public Works, 93d Cong., Ist Sess., A Legislative

History of the Water Pollution Control Act

Amendments of 1972, at 1262 (1973) (Leg. Hist.

RRO Ener 4

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

printed in 2 Senate Comm. on Env’t & Public

Works, 100th Cong., 2d Sess., Legislative His-

tory of the Water Quality Act of 1987, at 1420

(1988) (Leg. Hist. of 1987) _.... ks See ae oe 6

Senate Consideration of the Conference Report

Oct. 4, 1972, reprinted in 1 Leg. Hist. of 1972,

ee eke Se eee eee aD 7

Miscellaneous

1982 Oklahoma Water Quality Standards (OWQS),

RRR a Rc Rae Se 5,19

Amicus Curiae Brief of Sierra Club, in Support

of Respondents (Sierra Club Br.) x

vi

TABLE OF AUTHORITIES—Continued

Brief Amici Curiae of Champion International

Corporation, American Paper Institute, National

Forest Products Association, American Iron and

Steel Institute, American Mining Congress, the

Fertilizer Institute, Chemical Manufacturers,

Association, National Association of Manufac-

turers, Associated Industries of Arkansas, Ar-

kansas Federation of Air and Water Users, Inc.,

and Arkansas Poultry Federation in Support of

Petitioners (Champion Br.) ................................

Brief for the Natural Resources Defense Council,

et al., in Support of Respondents (NRDC Br.)..

Brief of the Association of Metropolitan Sewerage

Agencies, the National Institute of Municipal

Law Officers, the Municipal Leagues Represent-

ing Over 9000 Cities in Twenty-Six States, and

Five Individual Cities as Amici Curiae in Sup-

port of Petitioners (AMSA/Municipal League

| ct RARE CE ND TE + eM AOR eR

Brief of the State of Colorado as Amicus Curiae

in Support of Petitioners (Colorado Br.) _...........

Brief of the States of Illinois, et al., as Amici

Curiae in Support of Respondents (Illinois

eR ie AE IE - PE RP TEE

Brief of the States of Nevada, New Hampshire,

North Dakota and South Dakota as Amici Curiae

in Support of Petitioners (Nevada Br.) ........... 5

EPA Region IV, Question and Answers on Imple-

mentation of Tier III of the Federal Antidegra-

dation Policy: Protection of Outstanding Na-

tional Resource Waters (April 20, 1989) _...........

EPA Region V, Guidance for AntiDegradation Pol-

icy Implementation for High Quality Waters

I aha tliitatenccttaes

EPA Region 9, Guidance on Implementing the An-

tidegradation Provisions of 40 C.F.R. 181.12

rr

Page

1, 4, 6

1,8

, 10,12

17

17

vii

TABLE OF AUTHORITIES—Continued

Letter from Lawrence R. Edmison, Director of

Oklahoma Department of Pollution Control, to

Myron O. Knudson, Director, Waste Manage-

ment Div., EPA Region VI (May 29, 1986)...

Letter from Myron O. Knudson, Director, Waste

Management Div., EPA Region VI, to James

Barnett, Executive Director, Oklahoma Water

Resources Board (Sept. 15, 1986) 0...

Memorandum From Martin Maner..............

C. Sands, Sutherland on Statutes and Statutory

Construction, (4th ed. 1984) OEE Ep

Sunstein, Law and Administrati». After Chevron,

90 Colum. L. Rev. 2071 (1990) 0.

Page

19

REPLY BRIEF OF PETITIONERS

Respondents and their amici devote most of their

briefs to refuting a position the Arkansas petitioners

never take. In particular, they characterize Arkansas

as contending that downstream state standards can be

ignored and “have no bearing” in permit decisions, and

they then attack this “Arkansas interpretation” as one-

sided and contrary to the goals of the Clean Water Act

(CWA). See, e.g., Okla. Br. at 19; Illinois Br. at 12-13;

NRDC Br. at 14. This characterization is simply wrong,

and as a result, most of respondents’ analysis fails to

address the issues actually before this Court.

The Arkansas petitioners’ opening brief demonstrated

that Congress meant in 1972 to establish a balance be-

tween the interests of upstream and downstream states.

Pursuant to this balance, section 402 of the CWA does

require EPA and source state permitting agencies to con-

sider the standards and objections of downstream states,

and EPA can use its final veto authority to assure that

downstream states are treated reasonably. CWA §§ 402

(b) (5), 402(d) (2), 402(a) (3). At the same time, these

provisions also show that downstream state standards

are not directly applicable to out-of-state sources, and

they expressly grant permitting agencies the discretion

not to impose additional conditions for achieving the

cownstream standards. See Ark. Br. at 13-17. The plain

language of these controlling provisions, and this Court’s

interpretation of these provisions just four years ago in

International Paper Co. v. Ouellette, 479 U.S. 481, 490-91,

497 (1987), therefore foreclose the Tenth Circuit’s con-

trary view, which makes downstream state standards

automatically applicable and eliminates al] permitting

agency discretion.

Whether as a consequence of their “strawman” strat-

egy or of necessity, respondents virtually ignore section

402, this Court’s holding in Ouellette, and a number of

other grounds given by EPA and Arkansas for reversal

of the Tenth Circuit’s decision. Moreover, the goals that

respondents invoke and the other arguments they do pre-

2

sent in no way justify overturning Ouellette and making

downstream state standards apply automatically to facili-

ties in upstream states. See infra Section I. But even if

the Oklahoma standards were somehow applicable, EPA

still acted well within its discretion to issue the Fayette-

ville permit here, and the Tenth Circuit’s decision must

be reversed. See infra Section II.

I. THE CWA GIVES EPA DISCRETION WHETHER

TO IMPOSE ADDITIONAL RESTRICTIONS TO

PROTECT DOWNSTREAM WATER QUALITY.

A. The Goals Of The Act Do Not Support Respondents’

Statutory Construction.

Although respondents and their amici repeatedly invoke

the “goals” of the Clean Water Act, neither those goals

nor the statute as a whole can support their interpreta-

tion of the Act. In fact, despite their efforts to arrogate

the mantle of reasonableness, respondents and their amici

are the ones advocating an extreme approach for the res-

olution of interstate disputes, as shown both by the

facts of this case and the consequences of their statutory

construction.

After considering all the evidence, EPA found that

the Fayetteville discharge into tributaries of the Illinois

River would have no adverse effect on Oklahoma water

quality. Due to the high rate of assimilation in Arkansas

(about 75%), EPA concluded that the Fayetteville dis-

charge would increase the river’s total phosphorus level

by no more than six pounds per day at the Oklahoma

border. Ark. P.A. 129a. Moreover, since those six pounds

were diluted in an additional 3.5 million gallons of water

each day, the Fayetteville discharge as a whole would

actually improve Oklahoma water quality, by increasing

the river’s assimilative capacity for nutrients and diluting

the pre-existing phosphorus concentrations at the border.’

1The pre-existing phosphorus concentration at that point was

approximately 0.4 mg/l. Memorandum from Martin Maner, R.,

Vol. IX, Dkt. No. ARK-6 (part 3), Ark. Ex. 10. Since the six pounds

of phosphorus from the Fayetteville discharge that reach the

3

Although phosphorus was the pollutant of greatest con-

cern at the hearings, EPA also found that the Fayette-

ville discharge would improve dissolved oxygen levels at

the Oklahoma border, and even Oklahoma’s primary ex-

pert witness conceded during the hearings that “there

will be no change in terms of algae growth, taste, odor

and turbidity.” Ark. P.A. at 134a, 139a. See generally

Ark. P.A. at 127a-144a.

By comparison, Fayetteville’s prior treatment plant

was not nearly so effective, and as Oklahoma admits, had

become a serious detriment to river quality and the

environment. In addition, with the growth of the area,

Fayetteville concluded that even a new state-of-the-art

facility could not solve these problems if it continued

discharging all its effluent into the White River. Ark.

Br. at 4. Accordingly, the split-flow design Fayetteville

ultimately selected, which combined the assimilative capa-

bility of the Illinois River tributaries in Arkansas and

the White River, was essential for minimizing the facil-

ity’s overall impact.’

EPA’s issuance of a permit based on this split-flow

design was thus the only rational alternative from an

environmental standpoint, and for the reasons shown

above, the decision certainly did not protect Arkansas’

water quality “at Oklahoma’s expense,” notwithstanding

Oklahoma’s rhetorical premise. See Okla. Br. at 1, 6-7.

border are diluted by the 3.5 million gallons of water added by the

plant’s discharge, the maximum phosphorus concentration in the

Fayetteville effluent reaching the border would be less than 0.25

mg/l. See Ark. P.A. at 128a-129a; J.A. at 67; R., Vol. VII, Dkt. No.

C-1 (Vol. II), at 316. In fact, the Fayetteville plant discharges

less phosphorus than the permit maximum assumed in these cal-

culations.

2 Ark. Br. at 4-6. Respondents’ suggestion that Fayetteville could

readily have chosen a complete “land applicatjon” alternative is

unfounded. See Okla. Br. at 7. In fact, Fayetteville did study this

alternative, and the City was unable to implement this approach

(beyond its current use) for a variety of reasons, including the

City’s inability to enter agreements with sufficient neighboring

landowners to handle the additional wastewater. See also Ark.

P.A. at 115a n.11.

4

This conclusion is even more obvious froni a broader re-

gional perspective, since improvements underway at three

other Arkansas facilities nearer the border were expected

to reduce phosphorus discharges into the Illinois River

by about 400 pounds per day, easily offsetting the six

pounds added by Fayetteville. See Ark. P.A. at 128a,

132a, 153a; EPA Br. at 9 n.10.

The Tenth Circuit’s invalidation of the Fayetteville

permit, despite these facts, itself demonstrates the ex-

treme nature of the court’s holding. The defense of that

holding by respondents and their amici similarly reveals

the extreme statutory interpretation required to support

that holding and its consequences for the rest of the na-

tion. Specifically, they contend that: (i) a discharger

must automatically comply with the standards of all

downstream states; (ii) downstream states can adopt

standards that preclude any new discharges in upstream

states; (iii) EPA has no authority to disapprove a state

standard that is more stringent than federal minimum

requirements; and (iv) EPA and state permitting agen-

cies have no discretion in interpreting or applying down-

stream standards with respect to upstream sources. £.9g.,

Okla. Br. at 6, 31-32; NRDC Br. at 22. In their view,

Oklahoma has the complete and unfettered ability to ban

unilaterally all new discharges into most of the water-

ways of Northwest Arkansas, which eventually flow into

Oklahoma. /d.

Respondents base this wooden construction almost ex-

clusively on the CWA’s goal of eliminating all discharges

by 1985. As laudable as that goal may be, Congress rec-

ognized from the outset that this goal was aspirational

rather than operational.’ No state, including Oklahoma,

ean achieve this goal, now or in the immediate future,

and neither EPA nor any court other than the Tenth

3 As Senator Muskie, the Senate sponsor of the provision, ex-

plained: “{T|he 1985 deadline for achieving no-discharge of pollu-

tants is a policy objective. It is not locked in concrete. It is not

enforceable.” 117 Cong. Rec. 38,800 (1971), reprinted in 2 Leg.

Hist. of 1972, at 1262. See also National Wildlife Fed’n v. Gorsuch,

693 F.2d 156, 178-81 (D.C. Cir. 1982).

5

Circuit has interpreted the goal in the manner proposed

by respondents and their environmental interest group

supporters.

Not only do respondents misperceive the nature of Con-

gress’ goals, but they also ignore the counterproductive

and disruptive consequences of their extreme interpreta-

tion. As this Court recognized in Ouellette, Congress in-

tended to establish a balance between upstream and down-

stream states, not to grant downstream states control

over out-of-state sources. 479 U.S. at 490-91, 497. To

maintain this balance, consistent with long-established

principles of federalism and state equality, EPA and

source state permitting agencies must have discretion

regarding the application of downstream standards. As

explained by the municipal leagues and other affected par-

ties supporting Arkansas here, upstream sources would

otherwise be required to comply with inconsistent and con-

stantly changing standards from as many as ten down-

stream states.‘ Moreover, by eliminating EPA’s role as

a meaningful arbiter, respondent’s view would interfere

with the construction of environmentally improved facil-

ities, as in this case, and even expose upstream sources

to selective bans or discrimination.

Consequently, the Tenth Circuit’s and respondents’ con-

struction of the statute would actually interfere with,

not serve, the goals of the statute.

* AMSA/Municipal League Br. at 8-12; Nevada Br. at 15-16;

Colorado Br. at 13-14; Champion Br. at 6 & n.5; Ark. Br. at 29-30.

5Jd. Although denying any discriminatory intent, Oklahoma has

adopted much more lenient standards for downstream segments of

the Illinois River where almost all Oklahoma dischargers are lo-

cated. J.A. at 54. Furthermore, all five river segments designated

as scenic rivers by the Oklahoma legislature, and thus subject to

the most stringent “(a)” limitations on new discharges, happen to

be adjacent to the Arkansas border. See 1982 Oklahoma Water

Quality Standards (QWQS), App. A. R., Vol. X, Dkt. No. OK-6A, at

17. In each case, these classifications affect almost exclusively Arkan-

sas sources since Oklahoma has adcpted more lenient standards for

virtually every downstream segment where its own dischargers are

located.

6

B. The CWA Expressly Grants Permitting Agencies

The Discretion To Arbitrate Interstate Disputes On

A Case-by-Case Basis.

While dwelling on their singular view of the CWA’s

goals, respondents essentially ignore the statutory pro-

vision Congress enacted in 1972 that specifically gov-

erns disputes over interstate waterways. See Ark. Br.

at 3, 13. This provision, which was added as section

402 when Congress created the NPDES program, controls

the issuance of permits by both EPA and state permit-

ting agencies, as respondents appear to accept. CWA

§§ 402(b) (5), 402(a) (3). By its plain terms, this pro-

vision creates a consultative and discretionary mechanism

that requires permitting agencies to consider, but not

necessarily accept, the recommendations of downstream

states regarding their standards. Section 402 also author-

izes, but plainly stops short of requiring, EPA to veto a

permit that fails to require compliance with downstream

state standards. CWA § 402(d) (2).°

Although respondents themselves appear to concede the

discretionary nature of these provisions, see Okla. Br. at

18 n.15, their environmental interest group supporters

nevertheless suggest reading § 402(d)(2) as compelling

EPA to veto permits that do not ensure compliance with

downstream standards. NRDC Br. at 12-13. The words

of the statute will not tolerate this reading. On its very

face, this section is permissive and states that the permit

® See Ark. Br. at 14-15. Section 402(a) (3) makes the provisions

of §402(b)(5) directly applicable to EPA when it acts as the

permitting agency, and in that situation, the consultative and dis-

cretionary procedures obviously merge. See Ark Br. at 15. Some

of the relevant factors that EPA may consider in its case-by-case

determinations include the relative hardships to the upstream and

downstream states, the volume of the discharge, whether the dis-

charge will violate downstream standards, the frequency and dura-

tion of any such violation, whether the downstream standards

exceed the federal requirements, and whether the downstream

state applies similar restrictions to sources in its own state. Cf.

S. Rep. No. 50, 99th Cong., lst Sess. 49 (1985), reprinted in 2

Leg. Hist. of 1987, at 1420, 1470.

7

shall be denied “if the Administrator . . . objects.” CWA

§ 402(d)(2) (emphasis added). Moreover, it would be

absurd to read this “if” as creating a mandatory duty

for EPA when § 402(d)(3), the following subsection,

expressly authorizes EPA to waive any review of a state

permitting agency’s decision not to follow a downstream

state’s recommendations. Not surprisingly, therefore,

every other court of appeals interpreting § 402(d) (2)

has concluded that EPA’s decision to veto a permit is

discretionary, not mandatory. See Ark. Br. at 14.

For their part, respondents suggest that instead of

§ 402, interstate disputes should be controlled by lan-

guage in § 401(a)(2), an older provision that predates

the NPDES program. In particular, this provision re-

quires EPA to seek the views of downstream states and,

based upon the “evaluation and recommendations” of the

EPA Administrator, to condition permits “in such manner

as may be necessary to insure compliance with applicable

water quality requirements.” CWA § 401(a)(2) (em-

phasis added). Respondents’ reliance on this provision is

misplaced for a number of reasons.

First, nowhere does § 401(a) (2) say that “applicable”

requirements means all downstream state standards. Re-

spondents simply assume that it does, thereby begging

te question. In fact, the provision means that once EPA

makes its case-by-case determination whether to treat a

particular downstream standard as “applicable,” the per-

mit must ensure compliance with the ones EPA makes

“applicable.” Second, respondents’ presumed meaning of

“applicable” in § 401(a)(2) would conflict with the ac-

knowledged meaning of the same word in § 401(a) (1),

the preceding subsection. In that provision, “applicable”

was deliberately limited to the standards set by the source

state. Congress made this clear beyond question when it

specifically decided against requiring a certification of

compliance with downstream state standards under this

provision." Moreover, every court construing this provi-

™ See Ark. Br. at 16-17 & n.16; see also Senate Consideration of

the Conference Report, Oct. 4, 1972, reprinted in 1 Leg. Hist. of

8

sion has held, contrary to the implication of several amici

(Sierra Club Br. at 7; Illinois Br. at 10), that it only

requires a certification of compliance with source state

standards.*

A third problem with respondents’ attempted use of

$401(a)(2) is that this provision does not even apply

when state agencies act as the permitting authority under

section 402(b). See Ark. Br. at 16 & n.15. Respondents’

construction would thus violate this Court’s admonition

that it makes no sense to construe the CWA as imposing

different requirements depending on the “fortuitous cir-

cumstance” of whether EPA or a state acts as the per-

mitting agency. Crown Simpson Pulp Co. v. Costle, 445

U.S. 193, 196-97 (1980). Longstanding principles of

statutory construction similarly militate against constru-

ing § 401(a) (2) to create this conflict with § 402. See,

e.g., Louisiana Pub. Service Comm'n v. FCC, 476 US.

355, 370 (1986); Adams v. Howerton, 673 F.2d 1036,

1040 (9th Cir.), cert. denied, 458 U.S. 1111 (1982).

Finally, even if § 401(a) (2) could only be read as cre-

ating this conflict, the permissive provisions in §§ 402

(b) (5) and 402(a)(3) must nevertheless control in

NPDES permitting decisions, since Congress enacted the

latter provisions more recently and they serve as the

specific legal authority for issuing NPDES permits in

the first place.’

1972, at 161, 176 (exhibit of Sen. Muskie) (state certification is

intended “to assure compliance with water quality standards in that

State’) (emphasis added).

8 See National Wildlife Fed’n v. FERC, 912 F.2d 1471, 1483-84

(D.C. Cir. 1990); Miners Advocacy Council v. State Dep't of

Environmental Conservation, 778 P.2d 1126, 1129 (Alaska 1989),

cert. denied, 110 S. Ct. 1127 (1990) ; Environmental Defense Fund,

Inc. V. Tennessee Water Quality Control Bd., 660 S.W.2d 776, 779

(Tenn. Ct. App. 1983).

® Ark Br. at 15-16. See 2A C. Sands, Sutherland on Statutes and

Statutory Construction § 51.02, at 453-54 (4th ed. 1984); Watt v.

Alaska, 451 U.S. 259, 166 (1981) (more recent enactment prevails).

In addition, it has long been accepted that a more specific provision

—_

9

In sum, therefore, section 402 must be regarded as

the governing provision, and rather than make down-

stream standards automatically applicable, this provision

directs permitting agencies to determine on a case-by-case

basis whether downstream state standards warrant im-

posing additional conditions in a permit.’

C. The Legislative History, EPA’s Regulations, And

Ouellette Further Confirm That Downstream Stand-

ards Are Not Automatically Applicable.

The legislative history of the CWA likewise demon-

strates that Congress did not intend to make downstream

state standards apply automatically to out-of-state facili-

ties, as explained in Arkansas’ opening brief. Ark. Br.

at 19-24. In response, neither respondents nor their

amici are able to cite any contrary evidence in the legis-

lative history that actually addresses the interstate ap-

preempts an inconsistent provision that is more general. Brown Vv.

General Services Admin., 425 U.S. 820, 834-35 (1976); Jett v.

Dallas Indep. School Dist., 491 U.S. 701, 734-35 (1989). See also

MacE voy Co. v. United States, 322 U.S. 102, 107 (1944) (“How-

ever inclusive may be the general language of a statute, it ‘will not

be held to apply to a matter specifically dealt with in another part

of the same enactment. ... Specific terms prevail over the general

in the same or another statute which otherwise might be con-

trolling’” (quoting Ginsberg & Sons vy. Popkin, 285 U.S. 204, 208

(1932) )). Moreover, § 402 would also take precedence as the last

provision in point of arrangement. See, e.g., 2A C. Sands, Suther-

land on Statutes, supra, § 46.05, at 92; Lodge 1858, Am. Fed'n of

Gov't Employees v. Webb, 580 F.2d 496, 510 (D.C. Cir.), cert.

denied, 439 U.S. 927 (1978).

%” Respondents and their amici also rely on section 301(b)

(1)(C) to support their argument that downstream standards are

automatically applicable. See, e.g., Okla. Br. at 17. However, this

provision does not address the issue of whether downstream stand-

ards apply to out-of-state dischargers, and respondents’ reading

again simply begs the question. See Ark. Br. at 17 n.17. Moreover,

there is no suggestion in the legislative history that Congress in-

tended § 301 to require the extra-territorial application of more

stringent downstream state standards. In fact, the language and

legislative history of § 510 demonstrates that such standards were

to apply only to in-state dischargers. See Ark. Br. at 25-27.

10

plication of water quality standards. Under these cir-

cumstances, it is inconceivable that Congress could have

adopted respondents’ extreme interpretation, especially

without expressly saying that it was doing so, given the

extraordinary impact on state sovereignty and the sub-

stantial constitutional implications of allowing one state

to regulate facilities in another state."

In the absence of any legislative history sufficient to

support their own interpretation, respondents merely cite

the general statutory goals and complain that Arkansas’

position would cause “interstate water quality to be set

at the lowest common denominator.” Okla. Br. at 19.

What respondents ignore is that Congress chose other

measures to address such concerns, and not the measure

Oklahoma would prefer here. Specifically, Congress did

require EPA to set uniform technology-based effluent lim-

itations, which apply nationally, and granted EPA the

authority to review source state standards for consist-

ency with federal minimum requirements. These meas-

ures were purposefully crafted to ensure adequate pro-

tection of downstream water quality, and even then,

Congress still gave permitting agencies the discretion to

impose additional conditions in light of downstream

standards.”

As another substitute for legislative intent, respondents

contend that EPA’s regulations support their extreme

11 The extra-territorial application of state standards in this

manner would require an “unmistakably clear” authorization from

Congress. Ark. Br. at 31; Nevada Br. at 16. A clear congressional

statement is required not only by these constitutional implications,

but also by the rule that “if Congress intends to alter the usual

constitutional balance between the States and the Federal Govern-

ment, it must make its intention to do so unmistakably clear in the

language of the statute.” Will v. Michigan Dep't of State Police,

491 U.S. 58, 65 (1989) (quotations omitted).

12 See citations to the legislative history in NRDC v. Train, 510

F.2d 692, 709-10 (D.C. Cir. 1975); Ark. Br. at 19-22; AMSA

Municipal League Br. at 8. The consultative mechanism of sections

402(b) (5) and 401(a) (2) were enacted to resolve those few inter-

state disputes that might arise despite the uniform federal require-

ments.

11

interpretation and require automatic application of down-

Stream state standards. See 40 C.F.R. §§ 122.4(d),

122.44(d) (4). However, these regulations merely confirm

that permitting agencies must require compliance with

any “applicable water quality requirements” of down-

stream states, without determining which of those re-

quirements will, in fact, be applicable in any given case.

Like section 401(a) (2), therefore, these regulations are

consistent with section 402 and maintain EPA’s discre-

tionary authority to decide which downstream standards,

based on a case-by-case consideration of all relevant fac-

tors, should be applied to a particular discharge.

This is precisely the interpretation offered by EPA

when adopting its regulations on water quality stand-

ards. At that time, EPA explicitly stated that it would

resolve interstate water quality disputes on a case-by-case

basis, considering all the relevant factors:

While it is theoretically possible that two States

might have incompatible standards, both of which

meet the requirements of the Act and this regulation,

such a situation is likely to be rare. If it occurs, EPA

will assist the States in resolving the inconsistency.

The exact procedures will depend upon the specific

circumstances. Therefore, we do not believe it is ap-

propriate to include specific procedures in the Water

Quality Standards Regulation to resolve interstate

conflicts.

48 Fed. Reg. 51,413 (1983). Respondents offer nothing

'S Even if EPA’s regulations were read to have a broader effect,

they could not change the fact that Congress specifically gave EPA

the discretion to determine in each case whether and how a facility

should be required to satisfy downstream standards. Consequently,

even if the regulations were somehow read to mean that EPA will

generally find downstream standards “applicable,” the agency still

retains its full discretion under § 402 to consider and interpret

those standards, see Ark. Br. at 31-33, as well as to depart from such

a presumption of applicability in any individual proceeding. See,

e.g., United States v. Storer Broadcasting Co., 351 U.S. 192, 204-05

(1956).

12

to suggest that the cited regulations should be construed

differently, or given any broader effects in this case."

Accordingly, in light of the plain statutory language

and need for a balanced approach, this Court already

rejected respondents’ and the Tenth Circuit’s construction

of the Act just four years ago in Ouellette. In particular,

the Court held that sections 402 and 401 give down-

stream states only an “advisory role” in regulating an

out-of-state discharge, whereas the EPA Administrator

is delegated “the discretion to disapprove the permit

if he concludes that the discharges will have an undue

impact on interstate waters.” 479 U.S. at 490-91; see

also Ark. Br. at 17-18. Respondents’ attempt to dismiss

this Court’s prior construction as “dicta” does not make

this Court’s interpretation go away, of course. Okla. Br.

at 19 n.16. Moreover, respondents’ characterization is

wrong. In fact, the Court’s construction of sections 402

and 401 was essential for its holding that these provisions

preempt the application of a downstream state’s common

law. Under the preemption doctrine, the Court was first

required to interpret these CWA provisions allocating

14 Moreover, any EPA regulation that made downstream stand-

ards automatically applicable would constitute an abdication of the

role Congress specifically entrusted to EPA as mediator of inter-

state water quality disputes. Furthermore, since the federally-

approved standards remain state law, and their extra-territorial ap-

plication to other states requires clear Congressional authorization

as a matter of constitutional law, see Ark. Br. at 27; Nevada Br.

at 13-14, such a rule would be highly questionable under Chevron,

U.S.A., Inc. Vv. NRDC, 467 U.S. 837 (1984). See Sunstein, Law

and Administration After Chevron, 90 Colum. L. Rev. 2071, 2110-14

(1990) (Chevron deference is not appropriate when an agency

adopts a rule on its own that requires clear Congressional authori-

zation); see also EEOC vy. Arabian Am. Oil Co., 111 S. Ct. 1227,

1237 (1991) (Scalia, J., concurring) (citing Sunstein); Rust v.

Sullivan, 111 8S. Ct. 1759, 1780 (1991) (Blackman, J., dissenting)

(citing Sunstein); Edward J. DeBartolo Corp. Vv. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

This Court has also recognized that less deference should be given

to an agency construction that conflicts with an earlier interpreta-

tion by this Court. Maislin Industries, U.S., Inc. v. Primary Steel,

Inc., 110 S. Ct. 2759, 2768 (1990); Patterson v. McLean Credit

Union, 491 U.S. 164, 172 (1989).

13

into interstate waterways before it could determine

whether those provisions conflicted with, and hence pre-

empted, the application of a downstream state’s common

law. Based on the Court’s conclusion that downstream

state standards do not apply extra-territorially under

the CWA, the Court then concluded that the extra-terri-

torial application of a downstream state’s common law

also must be preempted, for otherwise the downstream

state would be allowed to do indirectly what it cannot do

directly. 479 U.S. at 490-91, 495. Given the clear and

unequivocal expression of Congressional intent required

by this Court to make such a preemption holding,” re-

spondents can scarcely support any other construction of

the Act in this case.

D. This Court Should Uphold The Fayetteville Permit

Based on EPA’s Discretion Whether To Apply

Downstream Standards.

Since the CWA gave EPA discretion whether to require

compliance with the Oklahoma standards at all in this

case, EPA necessarily also had broad discretion in inter-

preting and applying those standards here. Thus, had

the Tenth Circuit properly interpreted the CWA’s inter-

state provisions and recognized this broad discretion, it

could never have overturned EPA’s decision to issue the

Fayetteville permit. See Ark. Br. at 31-33.

EPA now modestly suggests in its reply brief that this

Court can reverse the Tenth Circuit and uphold the

Fayetteville permit without needing to address the gen-

eral applicability of downstream state standards under

the CWA." While this conclusion is undoubtedly correct,

for the series of reasons addressed in EPA’s brief and in

1° This Court requires that the intent of Congress be “clear and

manifest” before finding that a federal statute preempts state law.

California Vv. FERC, 110 8. Ct. 2024, 2029 (1990); Puerto Rico

Dep't of Consumer Affairs V. Isla Petroleum Corp., 485 U.S. 495,

499-500 (1988); Ouellette, 479 U.S. at 491; Rice v. Santa Fe Ele-

vator Corp., 331 U.S. 218, 230 (1947).

16 EPA Reply Br. at 7-8. The Court could not, however, affirm

the Tenth Circuit’s decision without reaching these broader issues.

14

Section II of this brief, there certainly is no reason for

this Court to stop short of deciding the central question

presented here. This Court has already decided that ques-

tion énce in Ouellette, as described above, and failing <0

reaffirm that decision here would create widespread un-

certainty and turmoil. The Tenth Circuit, for example,

felt free to disregard the Ouellette interpretation, and

the court of appeals’ decision is now being extended in

other regions of the country. Accordingly, this Court

should reaffirm its Ouellette interpretation to provide the

simplest and most straightforward basis for decision here,

clarify the responsibilities of all states under the CWA,

and prevent disruptive interstate disputes from multiply-

ing in the future.

Il. EVEN IF DOWNSTREAM STANDARDS WERE

AUTOMATICALLY APPLICABLE, THE COURT OF

APPEALS SHOULD NOT HAVE OVERTURNED

THE PERMIT IN THIS CASE.

As EPA and Arkansas both demonstrated in their

opening briefs, even if downstream standards do auto-

matically apply to out-of-state sources, the Tenth Circuit’s

decision in this case must still be reversed on several

independent grounds and the Fayetteville permit upheld.

A. The CWA Delegates To EPA The Discretion To

Determine Compliance With Downstream Stand-

ards.

Respondents and their amici offer no credible basis

for rejecting the two independent sources of discretion

under the CWA that authorized EPA to find that the

Fayetteville discharge complies with Oklahoma stand-

ards. First, even if the Oklahoma standards did apply

automatically, EPA must be responsible for defining the

term “compliance” as used in the CWA. See, e.g., CWA

§ 401(a) (2); 40 C.F.R. § 122.4(d). As a matter of fed-

eral law, EPA defined that term here to include an ele-

ment of detectability and concluded that the Fayetteville

discharge would comply with the Oklahoma standards so

long as it did not heve any detectable impact on down-

stream water quality. See Ark. P.A. at 117a n.16; EPA

15

Br. at 18 n.21; Ark. Br. at 34-36. Respondents object to

EPA’s definition of compliance by citing cases holding

that the CWA does not require a permit violation to be

“detectable” or a prohibited discharge to be “harmful.”

Okla. Br. at 24-25; OWF Br. at 10 n.7. These cases,

however, deal with entirely different contexts in which

the agency simply used alternative means for objectively

determining the Act’s requirements. In the instant con-

text, EPA reasonably concluded that an objective test

such as detectability was necessary to assess compliance

with Oklahoma water quality standards, consistent with

well-established judicial precedent.'7 Such objective cri-

teria are especially necessary for demonstrating compli-

ance with water quality standards, because of the com-

plexity and uncertainties in modelling or measuring the

effects of particular discharges on water quality many

miles downstream."

Second, the CWA also gives EPA, as a matter of fed-

eral law, the discretion to interpret state water quality

standards in the interstate context. As Ouellette unques-

tionably does hold, a downstream state’s standards can

apply to out-of-state sources only through federal law.

The state standards cannot apply, of their own force, be-

yond the adopting state’s borders. Consequently, when

downstream standards are applied in the interstate con-

text, they must be subject to federal interpretation.

Moreover, Congress’ delegation of responsibility to

EPA necessarily carries with it the included authority

to interpret the downstream standards that the agency

applies in the interstate context.” This is particularly

17 See, e.g., Paccar, Inc. v. NHTSA, 573 F.2d 632, 644 (9th Cir.),

cert. denied, 439 U.S. 862 (1978); Chrysler Corp. v. Dep't of

Transp., 472 F.2d 659, 675 (6th Cir. 1972). See also Air Pollution

Control Dist. of Jefferson County, Ky. v. EPA, 739 F.2d 1071, 1092

(6th Cir. 1984).

18 See EPA V. California ex rel. State Water Resources Control

Bd., 426 U.S. 200, 204 (1976).

If nothing else, section 401(a)(2) gives a federal permitting

agency the authority to interpret downstream standards. While it

16

true where the state standards are based on federal

models published by EPA, as is the case here. See EPA

Br. at 20 n.25; Ark. Br. at 37. As shown in the opening

briefs and demonstrated again below, EPA reasonably

exercised this discretion in finding that the Fayetteville

discharge would comply with all the Oklahoma standards.

B. Federal Law Does Not Require A Ban On New

Discharges.

The Arkansas petitioners’ opening brief further demon-

strated that there is no basis for the Tenth Circuit’s hold-

ing that the CWA requires a ban on all new discharges

upstream from a pre-existing violation of a water quality

standard. See Ark. Br. at 42-49. Indeed, respondents

and their amici do not even attempt to defend the Tenth

Circuit’s novel interpretation of the CWA as requiring a

generic permit ban upstream from any water quality

violation. Rather, they offer an alternative theory that

the federal antidegradation policy for outstanding na-

tional resource waters (ONRWs) requires an absolute

ban on new discharges into such waters or their tribu-

taries. Okla. Br. at 35-36. EPA’s regulations impose no

such ban on new discharges. On its face, and as its very

name indicates, that policy simply prohibits “degrada-

tions” and requires only that “water quality shall be

maintained and protected.” 40 C.F.R. § 131.12(a) (3).

Thus, a new discharge that will have no detectable effect

on water quality, such as the Fayetteville discharge, is

plainly not prohibited by EPA’s antidegradation policy.”

is the source state that certifies compliance with its standards un-

der section 401(a) (1), it is the federal permitting agency that has

the ultimate decisionmaking power under section 401(a)(1) to con-

sider what requirements to impose to protect the water quality of

downstream states.

20 Respondents are also mistaken in contending that the Fayette-

ville 201 Facilities Plan Environmental Information Document and

the findings of the Arkansas-Oklahoma Arkansas River Compact

Commission call into question EPA’s finding that the Fayetteville

discharge will have no detectable impact on Oklahoma water quality.

‘To the contrary, Dr. Thompson, representing the private consulting

organization that drafted the 201 Plan document, testified that the

17

While EPA has never elaborated the requirements

of its antidegradation policy in a national rulemaking,

several] EPA regional offices have produced guidance doc-

uments, reviewed by EPA headquarters, which confirm

that the federal policy imposes no such ban on new dis-

charges.** Moreover, even if the federal antidegradation

policy were to require an absolute ban on new discharges

directly into an ONRW, it is clear that such a restriction

would never apply to tributaries of an ONRW.~ In this

case, Fayetteville discharges into a tributary of a tribu-

tary of a tributary of the Illinois River, which Oklahoma

has designated a scenic river after it crosses the Oklahoma

only Oklahoma water quality standard the Fayetteville discharge

would possibly violate is a prohibition against all new discharges,

assuming such a prohibition applies to Arkansas; and, he testified

that the Fayetteville discharge would have no measurable effect at

the Oklahoma border. R., Vol. VII, Dkt. No. C-1 (Vol. II), at 246-47,

282-83. Similarly, the Compact Commission report only discussed

the potential increase in phosphoros loading to the Illinois River

(R., Vol. X, Dkt. No. OWF-1, at 20), and ended up rejecting Okla-

homa’s claim that Arkansas was violating the Compact by adversely

affecting Oklahoma water quality. Jd. at 25.

*1F.g., EPA Region V, Guidance For AntiDegradation Policy

Implementation For High Quality Waters, at 4-5 (Dec. 3, 1986)

(“an increased pollutant load” does not constitute “a lowering of

water quality ... if the increase is so small that no significant

change in water quality can be demonstrated”); EPA Region 9,

Guidance on Implementing the Antidegradation Provisions of 40

CFR 131.12, at 4 (June 3, 1987) (“If the action will not lower water

quality, no further analysis is needed and EPA considers 40 CFR

131.12 to be satisfied”). See also Commonwealth Edison Co. Vv.

Train, 649 F.2d 481, 485 (7th Cir. 1980).

22 Although some other EPA regions would appear to ban new

discharges directly into an ONRW, even those regions do not pro-

hibit new discharges into a tributary of an ONRW. See, e.g., EPA

Region IV, Question and Answers on Implementation of Tier III

of the Federal Antidegradation Policy: Protection of Outstanding

National Resources Waters, at 2 (April 20, 1989) (“New point

source dischargers are allowed to waters tributary to ONRW’s as

long as the discharge will not result in a lowering of water quality

as the tributary waterbody enters the ONRW basin or cause a

change in the essential character or special use which makes the

water an ONRW.”).

18

border. Thus, there is no basis whatsoever under federal

law for prohibiting the Fayetteville discharge.

C. The Oklahoma Antidegradation Standard Also Does

Not Prohibit The Fayetteville Discharge.

Respondents and their amici also offer no valid ground

for denying the Fayetteville permit under any reasonable

reading of Oklahoma state law. As an initial matter, the

Tenth Circuit identified several alleged errors made by

EPA’s Administrative Law Judge (ALJ) in applying

Oklahoma’s standards. Ark. P.A. at 45a-46a, 51la-53a.

Respondents and their amici do not contest petitioners’

demonstration that these alleged errors were either non-

existent or harmless, and thus do not affect the validity

of EPA’s decision to approve the permit. Ark. Br. at

38-41.?°

Unable to defend the Tenth Circuit’s decision on these

grounds, and unwilling to defend the court’s “permit ban”

holding as a construction of the federal CWA, respond-

ents instead attempt to recharacterize the court’s holding

as based on Oklahoma’s individual antidegradation stand-

23 Although respondents do offer an attack on the ALJ’s eutrophi-

cation findings, this attack merely repeats the Tenth Circuit’s error

of misinterpreting the ALJ’s findings. Specifically, the Tenth Cir-

cuit accused the ALJ of committing a “glaring error” by allegedly

concluding that nutrient uptake by algae reduces the rate of

eutrophication. Okla. Br. at 23 n.21; Ark. P.A. at 68a-69a n.47.

In fact, the court simply misread the relevant sentence in the ALJ’s

opinion, and Oklahoma never even mentioned this issue in any

of the proceedings below. The ALJ actually stated that at low

flows, “the assimilative processes is [sic] at its most effective stage

and therefore removes more nutrients upon which algae feed before

they reach the Oklahoma border.” Ark. P.A. at 129a. Properly

read, and as confirmed by the evidence cited in the rest of the

ALJ’s decision, this sentence simply recognizes that, in low flow

situations, nutrient assimilation is enhanced, thereby lowering the

amount of nutrients reaching the border and consequently reducing

algal growth. In other words, consistent with the testimony at the

hearing, it is the natural assimilative processes of the river, and

not algal growth, which the ALJ concluded would reduce the rate

of eutrophication. See R., Vol. VII, Dkt. No. C-1 (Vol. II), at 309.

19

ard. In particular, respondents contend that the Tenth

Circuit gave Oklahoma’s standard a dual meaning de-

pending on whether or not the downstream waters are

already degraded. See, e.g., Okla. Br. at 30. As shown

above, there is no basis for this dual meaning or permit

ban in the CWA or federal antidegradation policy. See

infra pages 16-17. Respondents’ opportunistic attempt to

engraft this interpretation on its own standard also lacks

any foundation. Oklahoma never advanced such an inter-

pretation in the proceedings below, and there is absolutely

no suggestion on the face of the standard that it has two

meanings depending on whether or not there is existing

degradation.

Apart from proposing this novel recharacterization,

respondents offer their own theory that the Oklahoma

antidegradation standard absolutely prohibits any new

discharge, regardless of pre-existing conditions. The

standard also cannot support this interpretation, since its

language only prohibits “degradation” of an ONRW;; it

says nothing about banning new discharges that will not

degrade water quality. J.A. at 28. Indeed, even the

Tenth Circuit would not accept this view and instead in-

terpreted Oklahoma’s standard to prohibit only new dis-

charges that result in “any human-caused, detectable

change” in water quality. Ark. P.A. at 49a (emphasis

added).

Moreover, the Beneficial Use Limitations (Section 5)

of the 1982 OWQS only designate “scenic river areas” and

“such tributaries of those streams as may be appropri-

ate” as being subject to “(a)” protection for ONRW

waters. J.A. at 46-47. These limitations therefore do not

even apply to unlisted tributaries, and Oklahoma’s 1982

standards clearly did not designate the Arkansas tribu-

taries of the Illinois River in question here as being subject

to the ONRW protections. 1982 OWQS, App. A, J.A. at

54.** Indeed, Oklahoma itself interpreted its 1982 stand-

24In 1985, Oklahoma did revise the OWQS to extend ONRW

protection to all tributaries of scenic rivers. However, the 1982

20

ards in this manner as the basis for permitting an in-

creased load for the Tahlequah, Oklahoma wastewater

treatment plant.**

Finally, even if the Oklahoma standard did prohibit all

new discharges, going far beyond the federal minimum

requirements, it would constitute a more stringent state

standard adopted under section 510 of the CWA and as

such, must only apply to in-state dischargers. City of Mil-

waukee v. Illinois, 451 U.S. 304, 328 (1981); see also

Ark. Br. at 25-27."

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed and the permit approved by

EPA should be reinstated.

OWQS, and not the 1985 OWQS, apply to the Fayetteville permit.

Ark. P.A. at 45a n.29. Moreover, when EPA approved the 1985

OWQS which extended ONRW status to tributaries, EPA expressly

limited this extension to “streams or portions of streams within

the boundaries of Oklahoma.” Letter from Myron O. Knudson, Di-

rector, Waste Management Div., EPA Region VI, to James Barnett,

Executive Director, Oklahoma Water Resources Bd. (Sept. 15,

1986), R., Vol. VIII, No. EPA-6, at 3.

25 See Letter from Lawrence R. Edmison, Director of Oklahoma

Dep’t of Pollution Control, to Myron O. Knudson, Director, Waste

Management Div., EPA Region VI (May 29, 1986). R., Vol. VIII,

Dkt. No. EPA-5. Oklahoma subsequently changed its position in

light of its opposition to the Fayetteville discharge and the 1985

modifications to the OWQS.

26 A similar dichotomy exists for interstate pollution abatement

under the Clean Air Act. Courts have concluded that an upwind

state must protect against interference with the air quality stan-

dards of the downwind state that are based on federal requirements,

but is not required to comply with downwind state standards

that are more stringent than the requirements of federal law.

Connecticut v. EPA, 656 F.2d 902, 909 (2d Cir. 1981); Air Pollu-

tion Control Dist. of Jefferson County, Ky. v. EPA, 739 F.2d 1071

(6th Cir. 1984).

WINSTON BRYANT

Attorney General :

Mary B. STALLCUP

ANGELA S. JEGLEY

OFFICE OF THE

ATTORNEY GENERAL

200 Tower Building

323 Center Street

Little Rock, AR 72201

JAMES N. McCorp

CITY OF FAYETTEVILLE

207 West Center Street

Fayetteville, AR 72701

ANNE ROBERTS BoBo

A.D.P.C. & E.

P.O. Box 8913

Little Rock, AR 72219-8913

Dated: September 4, 1991

21

Respectfully submitted,

EDWARD W. WARREN, P.C.

DAvip G. NORRELL

(Counsel of Record)

GARY E. MARCHANT

DAWN P. DANZEISEN

KIRKLAND & ELLIS

Suite 1200

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5070

WALTER R. NIBLOCK

THE NIBLOCK LAW FIRM

P.O. Drawer 818

Fayetteville, AR 72702

NaNcy L. HAMM

LAW OFFICES OF

LAURA J. MCKINNON

One East Center, Suite 211

First National Bank Building

Fayetteville, AR 72702