# Respondents Brief — Arkansas v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 946 ## Text . ae ’ * ? f ' — 2 ye eS -_ ’ ¢ ” * 5 F ; wre. j f a¢ - 4 - : wd Bie i sy -_ F in "4 So Pe ~~ fit d / * “§ | i oe . we i , ; + v/ ‘ { & ? Ty , « ing . ’ a "4% ¥ H ¥ Pf tn dt ud 4 - eee > a * . 1 i ta) 4 2444 . ‘ ,, 2 rii ~ ee b iy -” a9 ok ie Mare +3 es aad Meme a gs oh co we ee ene Ree 0 ERS ‘ Hol Wine : 1 -? ‘ : e 4 SP OO eee he ao oe m ; : " » i} z i _ it hes > Y te gm 7) Me ’ 4 5 a ae ~29 7 Se Sk et ne Pinel ABy ies a a ak f* - a ee ay *S - ° — a ts aa a : : , 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 8 enunciated by Congress is the complete elimination of the discharge of pollutants.” Natural Resources Defense Council v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987). As this Court has stated: Congress's intent in enacting (the Act) was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge ts prohibited unless covered by a permit, which directly subjects the discharge to an administrative apparatus established by Congress to achieve its goals. The major purpose of (the Act) was to establish a com- prehensive long-range policy for the 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 7] 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 10 Yet, it is just such an ineffective “tolerable effects” or “de minimis” standard that EPA resurrected here in its “no detect- able impact” approach to the discharges from the Fayetteville Plant. EPA determined that, if the adverse “effects” of Fayet- teville’s discharges to the Illinois River could not be definitely demonstrated, then they were effects that were “tolerable”, and allowable, 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 12 at the time (EPA Br. at 22-23)." EPA further states that, because of this replication, in considering the Fayetteville permit appli- cation, it interpreted Oklahoma's standard as identical to the federal model (EPA Br. at 23). EPA then maintains, though, that “there has been no national rulemaking or determination on how to interpret and apply the terms of the (model antide- gradation) standard”, and that it has not attempted to prescribe “what constitutes a ‘lowering’ of water quality” in an ONRW under an antidegradation standard (EPA Br. at 23-24). But, despite EPA's statements to the contrary in its 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 resource, such as waters of exceptional recreational or ecological significance © 40 CFR. 35. 15S0fe 2) (1981) (later amended to current regulation, 40 CFR 131. 12ay3)) (EPA Br. at 22-23) (emphasis added) 13 for an ONRW, since the standard is no degradation; it would seem that arguments over x or y micrograms per cubic meter would be irrelevant. Whenever a new point source applied for a permit to discharge into an ONRW, we could simply deny the permit (or force the State to deny the permit through our veto power) under § 301(b)(1)(C), which requires compliance with all state laws. Id. at 4 (emphasis in original). In a footnote to its statement that the standard is no degradation, EPA points out that the standard is “unlike the Clean Air Act concept which is no significant deterioration.” /d.” EPA conveniently omits any mention of this longstanding legal opinion that clearly highlights the inconsistency of EPA’s flawed interpretation of Oklahoma's federally-approved stand- ards here. As EPA itself stated, the antidegradation standard for an ONRW (such as the Illinois River) is no degradation.” Memorandum, James A. Rogers (Aug. 15, 1979) at 4. The very “arguments over x or y micrograms per cubic meter” that EPA engaged in here in setting forth its “no detectable impact” standard, are “irrelevant.” /d. Most importantly, EPA’s prior ' In 1989. Catherine A. Winer (listed as an attorney for EPA on the Solicitor General's Brief im the case currently before the Court) reviewed the 1979 legal 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) 14 interpretation, in direct contradiction to its interpretation here, expressly states that “whenever a point source applied for a permit to discharge into an ONRW (i.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 i) 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 16 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 17 As reiterated throughout, the intent of Congress, as expres- sed in the plain statutory language of the Act and the Act's legislative history, is clear. Congress unambiguously created a statute to “restore and maintain” the nation’s waters, and proclaimed a goal that “the discharge of pollutants into navig- able waters be eliminated” 33 U.S.C. § 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 18 enacting the Act, and the plain language of the federally-ap- proved water quality standards which EPA had just correctly determined it had to apply. In issuing the permit, it contradicted itself and its own longstanding explicit 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. 19 Conclusion. For the foregoing reasons, the judgment of the Tenth Circuit Court of Appeals should be affirmed. Respectfully submitted, SUSAN HEDMAN THEODORE E. DINSMOOR NATIONAL WILDLIFE Counsel of Record FEDERATION CYNTHIA J. HELENEK GREAT LAKES NATIONAL GASTON & SNOW RESOURCE CENTER One Federal Street 802 Monroe Boston, Massachusetts 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A13. Public record. Not legal advice.