Respondents Brief — Arkansas v. Oklahoma

Supreme Court brief1991

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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.

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 REGL-

LATORY PROVISIONS AND INTERPRETA-

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

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 v. 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, \99\ 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) 19n

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 v. Brown, 380 U.S. 278 (1965) 19n

TABLE OF AUTHORITIES CITED.

National Wildlife F ederation 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. 93)

(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 +. 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)

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

passim

10n

passim

12n

l2n

No. 90-1262 and 90-1266

In the

Supreme Court of the United States

OcTOBER TERM, 1991

STATE OF ARKANSAS, Ef. AL...

PETITIONERS,

Vv.

STATE OF OKLAHOMA, ET. AL..

RESPONDENTS.

ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER,

STATE OF OKLAHOMA, EFT. 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-

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 waters,

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 ts

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) ts 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. bor the sake of brevity, OWF does not specifically reference each

relevant section or definition of the Act, but instead mecorporates the references

and explanations of those sections and definitions set forth in the State of Oklahoma's

brie!

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 [llinots

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 vy. 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. point 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 ftederally-approved water quality stand-

ards.

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 ar 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 2larming: 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 ts a policy “absurdity”, which could not be further

from Congress’ unambiguous intent to eliminate the discharge

of pollutants to the nation’s waters. 33 U.S.C. §§ 1251,

131 1a).

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 WaAT-

ERS ON THE BASis OF A “NO DETECTABLE IMPACT” STAND-

ARD.

The Clean Water Act, 33 U.S.C. §§ 1251, et. seq., 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 1a), 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).

The only means by which a point source discharger can

escape the total prohibition of § 131 1(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.

§ 131 1(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 IIinois

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 ultemate goal being “pollutant discharge elimination.” 33 U.S.C. § 1342, see

also, Menzel v. County Unilities, 712 F.2d 91, 95 (4th Cir, 1983) (emphasis added )

Further. permits only may be granted tf the discharge at issue will meet all applicable

requirements under the Act, there 1s no requirement to issue a permit. 33 U.S.C

§ 1342(a 1) (emphasis added)

The White River and the IHlinow River are “navigable waters” under the Act

The Fayetteville wastewater treatment plant ts a “point source” under the Act which

sought to discharge pollutants into navigable waters, specifically the White River

and the Hlinow River

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) is . . . that it

is unlawful to pollute at all... The foremost national goal

‘Again. tor 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 imcorporated into the Act through federal approval. Once

federally 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

(1.¢. 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

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 climination of

water pollution.

Milwaukee v. 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.” Nativnal 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.

IS11; 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 of 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

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

_ so 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 1a.”

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, m accordance with the amended Act's shift im focus, also emphasize

preventing source activity through the application of antidegradation standards for

pratected waters. re by expressly prohubiting any new point sources discharge

into those waters. Moreover. EPA s own prior interpretation of its model antideyra

dation provision concluded that 4 focus on arguments over a measurement of ©:

or » micrograms” (1 ¢.. the tolerable effects” or “detectable impact” of water

pollution) ts “irrelevant” and inappropriate when evaluating whether a pernut should

be rssued to allow discharges to protected waters See mfra, pp 12-13

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, in a 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 them permits, courts have continually resterated what Congress so

clearly intended, namely there 1s “no de minimis” standard under the Act and no

need for a showing of actual injury for a penalty to be enforced. Sierra Club +

Union Oil, 813 F.2d 1480. 1491 (9th Cir, 1987). vacated on other grounds. 108

S.Ct L102 (1988), remstated, 853 F.2d 667 (9th Cir, 1988). Oo The Clean Water

Act and the regulations promulgated under tt make no provision for “rare viola-

tions”): See alse, Chevron USA v. Yost, 919 & 2d 27 (Sth Cir, 1990) (discharging

foreign substance violates the Clean Water Act without a showing of actual injury).

PIRG \. Powell Duftryvn Terminals, 720 & Supp. 1158. 1167 (DN J) 1989) (court

rejected defendant's contention that no penalty ts appropriate absent an adverse

impact on the river into which it had discharged pollutants), PIRG of New Jerses

¥ © P. Chemicals, 26 ERC (BNA) 2017, 2021 (DN J 1987) (to reduce penalties

due to a limited or undetectable wopact would result in a situation where “any

permittee could ignore (its permit requirements). . as long as it discharged into

already heavily polluted waters”) (emphasis added), A/so see. generally, Student

PIRG of New Jersey \. Georgia Pacific 61S F Supp. 1419, 1424(D NJ D9RS)

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 10

(July 8. 1980) ("all pollutants introduced into the environment create some harm

or risk... . and it wall 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 imcluded

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 Au Act which

prohibits only “significant detenorations” of ai quality in “clean air areas”, with

“significant” quantified in terms of maximum allowable imereases in pollutant

concentrations. 42 U S.C. §8 7471-7473. This ts not to say that Congress was

“silent” here. Section 131 1(a) alone. on its prohibition against pollutant discharges,

manifests Congress’ vowe and intent. 33 U S.C. 8h at ita)

B. Oklahoma's Federally-Approved Water Quality Stand-

ards, And EPA's Own Interpretations Of lts 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 exception to Section

S's otherwise absolute prohibition of any 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

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 briet,

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 ts termed a Tier Il 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 im pertinent part, that “no degradation

shall be allowed in igh quality waters which constitute an outstanding National

40 CFR. 35. 15S0fe 2) (1981) (later amended to current regulation, 40 CFR

131. 12ay3)) (EPA Br. at 22-23) (emphasis added)

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

opinion in light of 1983 Water Quality Standards rulemaking which referred to the

antidegradation policy Ms. Winer’s review did not alter the 1979 opinion, except

to state that the preamble to the 19%3 regulations discussed the “no degradation”

requirement tor ONRWS and “explained that EPA was modifying it slightly to

allow minor, short-term umpacts 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 trom Catherine A

Winer, Attorney. Water Division. to William Diamond, Director of Criteria and

Standards Division (May %, 1989) EPA explicitly admits in its brief that the 1983

change in its regulation “did not affect the restrictions for long-term sources of

pollutants”. Rather the change was only to allow for temporary degradation as-

sociated with construction proyects (EPA Br at 23, citing to 48 Fed. Reg. $1,

402-51, 403 (1983) (emphasis added)

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.c. 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 lit.

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. §§ 125I(a), 131 1a) (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 5 daily maximum allowable

discharge of 3.5 million gallons of effluents Ark Pet App !29%a

more efficient standards focused on point source activity and

the prevention of additional discharges trom those port

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

Hiinow River, Oklahoma Water Quality Standards §§ 3 and 5

(S.A. at 28, 46). EPA’s decision to ignore the plain languaye

of both the Act and these standards and allow Fayetteville 's

discharges on the basis of an “inefficient” and indefinite stand

ard, 1s both remarkable and alarming. The decision is even

more remarkable and alarming in that it completely contradicts

EPA’s own longstanding interpretation of its antideyradation

provision where ELPA had correctly concluded that, “whenever

a point source apphed to a permit discharge into an ONRW,

(we could) semply 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 permussible so long as they would

have no “detectable impact on the current water quality”, 1s

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 ts an

“absurdity” which completely contravenes the expheit lan

vuage and purpose of the Act to eliminate discharges 34.0 SC

8 125 ial). (Op. Below, 96% F 2d 595. 632), (emphasis

added)

Ihe Tenth Cw uit ttn used cme lusecmn cm the aourdety ot ! VA poor cl

+ tm, dete ctabk iipact tardard om the tact that the [lions Kiver wae an already

polluted hudy of water It. ulternate holding was that where wate f quality standard

» Mohali, ate alrewml, «« sTriny on te feceiviny water rer ahditromal pov AwmeTce

i. THe Tentre Ciacurr Exercisep Proper JupICIAL REVIEW

Over EPA’s Permit ISSUANCE IN THAT EPA’S CONSTRUC-

TION OF THE CLEAN WATER ACT AND THE FEDERALLY-ApP-

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 reyect 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, 90% F 2d at 644). 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 herem, 1 applied 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 tederally-approved water quality standards.

and Congress’ intent in enacting the Act. (See, Op. Below, 90% F 2d 595, through

out, but in particular at 97-599, 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 “permiysible” analysis

of EPA's decision. This is 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 basts of a

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. § 1251(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 $42 Ht. 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 Circuit, conclusively sup

ports a determination that the agency s Construction was both unpermissible and

“arbitrary and capricious

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 statements 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-

siona! 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 reyected such construc-

tions, see Dole v. United Steelworkers of Am., 494 U.S. 26(1990), Public Employ-

ees Retirement Svs. v. Betts, 492 U.S. 158 (1989). Bowen v. Georgetown Universit

Hospital, 488 U.S. 204 (1988), Cardoza-F onseca, 480 US. 421, Board of Gover-

nors of the Federal Reserve Sys. ¥. Dimension Financial Corp., 474 U.S. X61

(1986); FEC v. Democrat Senatorial Campaign Committee, 454 U.S. 27, 32

(1981); SEC v. Sloan, 436 U.S. 103, 117-118 C1978). FMC v. Seatrain Lines,

inc... 411 U.S. 726, 748-746 (1973). Volkswaeenwerk vo FMC, 390 US. 261.

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 C2110

Ann Arbor, Michigan 48104 (617) 426-4600

(313) 769-3351

272 (1968), NLRB v. Brown, 380 US. 278, 291 (1965). FTC v. Colgate-Palmolive

Co., 380 U.S. 374, 385 (1965); Social Security Board y. 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) CEPA construction of term “release” under CERCLA is impermis-

sible because it contravenes plain meaning of statute), Natural Resources Defense

Council v. EPA, 91S F.2d 1314 (9th Cir, 1990) (EPA not accorded deference for

its restrictive construction of 304(1) (33 U.S.C. 1314(1) of the Clean Water Act

in its regulations, in that the regulations were not in accordance with clear statutory

provisions), Abramovitz v. EPA, 832 F. 2d 1071 (9th Cir. 1987) (EPA exceeded

its authority by deferring action indefinitely, contrary to an explicit deadline in the

Clean Water Act); American Mining Congress v. EPA, 824 F.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).

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