Amicus Curiae Brief — Arkansas v. Oklahoma

Supreme Court brief1991

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ee. odes wna wh Bupreme Court, US.

In THe

Supreme Court of the Anited Mtatesor we ccm

OcTornerR Term, 1990

STATE OF AKKANSAS, et al.,

Petitioners,

Vv.

STATE OF OKLAHOMA, ef al,

Respondenta.

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Tue Strate of OKLAHOMA, et al,

On Writ Of Certiorari To The United States Court

Of Appeals For The Tenth Circuit

sss isda

BRIEF AMICI CURIAE OF CHAMPION INTERNATIONAL

CORPORATION, AMERICAN PAPER INSTITUTE, NATIONAL

MicHAeL K. GLENN J Jarvezy MCNEALEY

Micha. G. Down (Conanael of Record)

Porter, Wuorr, Momus & Janet J. Hewny

AnTHUR PouTen, Wucrr, Mowus &

= 2th wr NW AKTHUn

n, DC. 206 41 South h Street

aon tenes Columbus, Otio 43215

Counsel for (614) 227-2000

Internatvmal Corporation, American Paper In

stitute, National Forest Products Association, American

Iron and Steel Inatitute, American Mining Congress and

National Association of Manufacturers

May 41, 1991

{Additional Counsel Listed on Inside Front Cover]

PRESS OF BYRON & ADAMS, WASHINGTON, 0.0. Gen) 47-4008 a

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ........:cccccecseeseeeeeeeees

SUMMARY OF ARGUMENT ..........ccccccccceeeeeeeereeeeeees

Il.

The Act Requires That A Source Comply

With — Federal Standards and

Source State Standards ................ccccccececeeeees

The Act Does Not Require That “Affected

State” Standards Be Met By An Out-of-State

A. Sections 301(b1\C), 303(c), and 510 Do

Not Mandate Compliance With “Affected

B. Federal Approval of a § 303(c) “Affected

State” Standard Does Not Make It A

“Federal Standard” ...............c.cccceceeeeeeees

The Tenth Circuit’s Decision Gives Preemi-

nent Status To “Affected State’’ Standards,

Contrary To This Court’s Construction Of

The Act In Owellette ........cccccccccceceseceeeeeeeeeees

A. Compliance With “Affected State’’ Stand-

ards Cannot Rationally Be Mandatory

When EPA Is The Permit-Issuer, But

Discretio When The Source State Is

The Permit- SE

B. As This Court Found In Ovellette, The

Act’s “Savi Clause” Does Not Pre-

serve Rights Under The Law Of An “‘Af-

The Tenth Circuit’s Ruling Lacks The Nec-

essary Support Of A Clear And Unmistak-

able Statutory Authorization For An

“Affected State’ To Regulate Commerce Oc-

curring Outside Its Borders .................:::00++

V. a Tenth Circuit’ : .<— a Of

ew Discharges o Waters Not Meeting

Water Quality Standards Lacks A Proper

TABLE OF AUTHORITIES

Page

CASES

ee died “iled Je v. EPA, No. 91-2302 (4th Cir.

an. 3, 1991) sdbenemnsmmsnssinnemieenmens 3

H.P. rey & Sons, Inc. v. DuMond, 336 U.S. 525

EY didisininieiseisitieinniiatinintedtnibaneiitidiemanatinennnemsnsens 24

Hughes v. Oklahoma, 441 U.S. 322 (1979) ............. 24

IUinois v. City of Milwaukee, 731 F.2d 403 (7th Cir.

1984) cert. denied sub nom., Scott v. City of

Hammond, 469 U.S. 1196 (1985) .................... 22

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

ITTY diunticietentsesscsnndiinetgnteemnammenipennsmenmnesee passim

City of Milwaukee v. Illinois, 451 U.S. 304

TTI slides ieeliciatennntencciadlidnintegiaininimatesmeresses 21

Northeast Bancorp, Inc. v. Board of Governors, 472

U.S. 159 (1985) ..............c000000 d siieisleaetinieaeiedanes 23

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) .. 24

South-Central Timber Development, Inc. v. Wun-

niche, 467 U.S. 82 (1984) ........cccccccccccsssscsceceees 23

Sporhase v. Nebraska, 458 U.S. 941 (1982) ........... 23

State v. Champion Int’l Corp., 709 S.W.2d 569

REESE enero are eee eee 21

State of Oklahoma v. EPA, 908 F.2d 595 (10th

ee 3,16,19,26

Tennessee v. Champion Int'l Corp., cert. nted

iT ee vacated and renanid 479 U.S. 1061 -

STATUTES AND REGULATIONS

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

SD GD cnccnsnsccunsncneeasenetnciaenccsnecscesasensenesnesse 2

§ 101(a), 33 U.S.C. § 1251 (a) ................eeeeeeees 9

§ 101(b), 33 U.S.C. § 1251(b) «0.2.0... eeeeseeeees 10

een 10

§ 301(b), 33 U.S.C. § 13110D) 200... eee eeeeeeeeees 14

Table of Authorities Continued

Page

§ 301(bX1XC), 33 U.S.C. § 1311(bX1XC) ....... 12-16,24

I i iecsecsnretennstnsinncenet 10,16

I Oe I, RO i ccctneererentepnnnins 15,17

§ 303(c), 33 U.S.C. § 1313(C) ........ccccccesesereees 10,14-16

§ 303(cK1), U.S.C. § 131B(CM1) ........ccccceeeereeeeees 10

§ 303(c2), U.S.C. § 1313(CK2) ........ecececeeeceeeeees 10

§ 303(cX3), U.S.C. § 1313(CNB) ..........cececeeeeees 8,11,18

§ 303(c4), U.S.C. § 1313(CM4) .....ecececeseceeeeeeees 11,16

ee 10

OE, GP , CII cececcececcstcccccscesssnsssosecs 10

aa ae 10

ER 15

§ 401(aX(1), 33 U.S.C. § 1341(aX{1) ............0e000 12

§ 401(aX2), 33 U.S.C. § 1341(aX(2) ...........0-0-0-. passim

§ 401(d), 33 U.S.C. § 1841(d) .........cccececeseceeeeees 12

vO : * | eaaeeeee 3

§ 402(a), 33 U.S.C. § 1342(a) .........ccccceceseseees 11,12,20

§ 402(aX3), 33 U.S.C. § 1342(aX3) 0.0... 12,20

§ 402(b), 33 U.S.C. § 1342(b) .........cececececeseceeees 10-12

§ 402(bX5), 33 U.S.C. § 1342(b)(5) ........-.ececeeee. 13

§ 402(d\2), 33 U.S.C. § 1342(d\2) ............. 8,13,18-20

§ 505(e), 33 U.S.C. § 1365(€) ........ecececeseseseeeeees 21

GS ae 13-16,21

RE eee ag

SEC ae eae 7

EEE aceon a one 7

Table of Authorities Continued

Page

MISCELLANEOUS

Commerce Clause, Constitution of the United States,

| ATONE 11,22-24, 26, 27

Revision of Water ity Standards and Imple-

mentation Plans Under Sec. 303 of the Federal

Water Pollution Control Act, Op. EPA General

Counsel, No. 58 (March 29, 1977) .................. 16,17

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816

TTT initietshibiteisdnsirindisiercadianimuneamieetetesensenitenemasien 10

wee Se oe of 1965, Pub. L. No. 89-234, 79

Stat. RES _ Eee eee 10,16

Zener, ““The Federal Law of Water Pollution Con-

trol,”’ Federal Enviornmental Law (E.L. Dol-

gin and T.G.P. Guilbert eds. 1974) 715 ......... 10

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1990

Nos. 90-1262 and 90-1266

STATE OF ARKANSAS, et al.,

Petitioners,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

THE STATE OF OKLAHOMA, et al.,

Respondents.

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 MANUFACTURERS,

ASSOCIATED INDUSTRIES OF ARKANSAS,

ARKANSAS FEDERATION OF AIR AND WATER USERS,

INC., AND ARKANSAS POULTRY FEDERATION

IN SUPPORT OF PETITIONERS

Champion International Corporation, the American Pa-

per Institute, the National Forest Products Association,

Institute, the Chemical Man-

Association, the National Association of

Manufacturers, the Associated Industries of Arkansas, the

Arkansas Federation of Air and Water Users, Inc., and

Industry amici represent manufacturing, pro-

A , and other whose interests are

by the lower court’s rulings interpreting

the Water Act.

The American Paper Institute is a non-profit trade as-

sociation whose members include companies which account

formance with the Clean Water Act, 33 U.S.C. §§ 1251-

1387 (1988).*

Champion International Corporation (“Champion”) is a

member of the American Paper Institute and one of the

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Tenth Circuit ignored this Court’s teaching in Interna-

tional Paper Co. v. Ouellette, 479 U.S. 481 (1987) (“Oue-

lette”’), spelling out the ‘subordinate’ status of a

downstream state’s water quality standards and finding

that any exceptional EPA decision to base an upstream

state discharge limitation on a downstream state standard

is authorized only when EPA determines that the failure

to do so would have an “undue impact on interstate

waters” in the downstream state.

The Tenth Circuit’s second unprecedented ruling, that

no new or increased discharge may be permitted into (or

upstream from) a waterway not currently meeting appli-

cable water quality standards, is based on an equally flawed

reading of the Act. Although stringent conditions are re-

quired in permitting new or increased discharges, the stat-

ute has never been read to forbid categorically any new

or increased discharges to such waters. Even assuming,

for example, that a downstream state’s “non-degradation”’

standard were to apply automatically to an out-of-state

source (which it does not), the Act nowhere prohibits ab-

solutely any new or increased discharge to a waterway

not currently meeting that water quality standard.

ARGUMENT

I. The Act Requires That A Source Comply With Ap-

plicable Federal Standards and Source State Stand-

ards

A brief statement of the statutory context of the two

issues discussed here may be helpful. The succinctly-stated

objective of the Clean Water Act is “to restore and main-

tain the chemical, physical, and biological integrity of the

Nation’s waters.”” CWA § 101(a). The means by which the

Act’s stated objective is to be achieved are set forth in a

series of interrelated provisions for federally-established,

technology-based effluent limitations and other national

standards, for state-established ambient (in-stream) water

quality standards, and for case-by-case permitting of in-

dividual proposed discharges.

The establishment of federal technology-based effluent

limitations and other national standards—none of which is

at issue in this case—is solely within the province of the

EPA Administrator. CWA §§ 301, 302, 304, 306, and 307.

With respect to state-by-state establishment of in-stream

water quality standards, however—such as the Oklahoma

“non-degradation” standard at issue here—the Act pro-

vides a more complex and flexible scheme.*

The Act directs the Governor of each state to adopt in-

stream water quality standards for all waters of the United

States within each individual state (both intrastate and

interstate waters) and to submit such state standards to

the EPA Administrator. CWA §§ 303(cX1) and (2). State

standards are to be based, at least in part, on EPA-

recommended ambient water quality “criteria” and other

grams and mediating the application and enforcement of state standards

with respect to interstate waters. See Zener, “The Federal Law of

Water Pollution Control,” Federal Environmental Law (E.L. Dolgin

and T.G.P. Guilbert eds. 1974) 715.

requirements of the Act for the state-designated uses, the

state standard thereupon becomes “the water quality

standard for the applicable waters of that State.”* CWA

§ 303(cX3). The term “applicable waters of that State”

necessarily refers to waters within the state. Traditional

notions of state sovereignty and federalism, as well as the

Commerce Clause of the Constitution of the United States,

Art. I, §8, do not ordinarily allow the extra-territorial

application of a state’s individual water quality standards

to sources located outside that state’s jurisdictional bound-

aries. See pp. 22-25, infra.

Federal effluent limitations and other federally-promul-

gated standards, together with source state water quality

standards, provide the foundation for case-by-case permit-

ting of discharges of industrial, municipal, and other ef-

fluents to waters of the United States. National discharge

permits may be issued by EPA under § 402(a) of the Act,

or by the source state in the case in some 39 states which

have §402(b) EPA-approved state NPDES permit pro-

grams.

Section 402(a) of the Act authorizes the EPA Admin-

istrator to issue NPDES permits under condition that the

Act’s “applicable requirements” will be met, including any

more stringent permitting standards under state law in

accordance with § 30)(bX1XC).% See pp. 14-15, infra.

Whenever EPA is the permit-issuer, as here, the source

state also must certify to EPA that the proposed discharge

complies with all relevant federally-promulgated effluent

limitations and standards, as well as the source state’s

water quality standards and any other more stringent

source state requirements." CWA §§ 401(aX(1) and (d).

If a particular proposed discharge ‘“‘may affect” the

waters of another state, EPA must notify the potentially

affected downstream state of the permit application and

provide that state an opportunity to “object” and request

an EPA hearing.” Based upon any “recommendations” of

an affected state, EPA’s own evaluation, and any addi-

tional evidence submitted, EPA is then required to con-

dition the permit “as may be necessary” to insure

compliance with “applicable water quality requirements.”’

CWA § 401(aX2).

The situation thus can arise for a permit issued by EPA

under § 402(a), as presented here, wherein EPA deter-

mines and a source state certifies that a proposed dis-

charge will comply with all applicable federal and source

state requirements, but a downstream state believes its

water quality “will be affected’’ and that its additional or

more stringent requirements should be made “applicable’’

by EPA. In this situation, § 401(aX2) of the Act imposes

upon EPA a duty to consider the downstream state’s ‘‘ob-

Section 402(aX3) provides that an EPA-issued permit ‘‘shall be sub-

as SS Se ee, OS ee © aay ©

[§ 402(b)}] State permit program and permits issued thereunder .

" “The CWA therefore establishes a regulatory ‘partnership’ a

the Federal Government and the source State.” Ouellette, 479 U.S. at

490.

‘While source States have a strong voice in regulating their own

pollution, the CWA contemplates a much lesser role for States that

share an interstate waterway with the source (the affected States).’’

Ouellette, 479 U.S. at 490.

jection” or “recommendation” and grants EPA the dis-

cretion to determine what permit conditions are

“necessary.’" Section 401(aX2) does not define, however,

what requirements are ‘“‘necessary” to protect downstream

state water quality, thus leaving for EPA to determine

the “applicable water quality requirements” on a case-by-

case basis.

II. The Act Does Not Require That “Affected State’’

Standards Be Met By An Out-of-State Source

In arguments presented to the court below, EPA and

the State of Oklahoma relied heavily on § 301(bX1\C) of

the Act to discern the meaning of “applicable water quality

requirements” pertinent to this case. This provision states

that, in order to carry out the Act’s objective, there shall

be achieved, by July 1977, “any more stringent limitation

(than EPA-promulgated effluent limitations] ... estab-

lished pursuant to any State law or regulations (under

authority preserved by section 1370 [§ 510 of the Act]) ...

or required to implement any applicable water quality

standard established pursuant to this [Act].”” According to

“The Act also clearly grants EPA the discretion to protect down-

state, instead of EPA, is the permit-issuer and the source state must

notify other states of potential downstream state impacts. In such a

case, pursuant to §§ 402(b\5) and 402(d\2), when a downstream state

complains that its water quality will be affected, EPA has a duty to

evaluate any “recommendation” of the downstream state and the rea-

sons why the source state declined to accept (if such is the case) the

downstream state recommendations. The EPA Administrator then may

or may not, in his discretion, object to the proposed permit and preclude

its issuance by the source state. In Ouellette, this Court characterized

EPA’s discretion in terms of an EPA determination of whether the

proposed upstream state discharge would have an “undue impact’’ on

interstate waters. 479 U.S. at 491. Thus, when the source state, instead

of EPA, is the permit-issuer—which is how the vast majority of Clean

Water Act permits are issued in the 39 states with approved NPDES

permit programs—EPA obviously is not required to insure compliance

with the water quality standards of affected downstream states.

the Tenth Circuit, if any state (including, but not neces-

sarily limited to, the source state and any downstream

state) has adopted, pursuant to § 510, an effluent limitation

more stringent than the appropriate EPA-promulgated ef-

fluent limitation, or if any state has determined that a

more stringent limitation is required to implement a water

quality standard which that state has adopted pursuant to

§ 303(c), then EPA must treat any such state’s more strin-

gent limitation as an “applicable water quality require-

ment” under § 401(aX2). This interpretation of the Act will

not withstand scrutiny.

A. Sections 301(b)(1)(C), 303(c), and 510 Do Not Man-

date Compliance With “‘Affected State’’ Standards

An important statutory construction issue is whether,

in the context of a particular proposed permit, the Tenth

Circuit correctly interpreted the phrases “any State law

or regulations” and ‘“‘any applicable water quality stand-

ard” in § 301(bX1XC) to refer, literally, to the laws, reg-

ulations, and standards of any and all states (source states,

downstream states, and all other states), or whether they

are intended to require compliance only with the more

stringent laws or regulations of the kind preserved under

§510 for the source state to administer and the source

state’s more stringent water quality standards.’

Industry amici submit that, when read in the context

of a particular permit application, §§ 301(bX1\(C), 303(c),

and 510 have nothing to do with the issue of whether a

downstream state’s requirements (much less any other

state’s requirements) must be met. The title of § 301(b)—

“ If the lower court’s literal “any State’’ interpretation is correct, it

could produce the absurd result that a discharge located in New York

might be subjected to a more stringent limitation established by the

State of California since § 301(bX1\C), by its own terms, would not

require for such a more stringent state limitation to be “applicable’’

that it exist in a state which is even “affected’’ by the proposed dis-

~*~

“Timetable for achievement of objectives’’—indicates that

this section has to do with the schedule for achieving the

Act’s various standards and requirements, rather than de-

fining or creating any “applicable water quality require-

ments’ of the Act. Only by reference to §§ 303 and 510

does § 301(bX1XC) incorporate the right of a state to es-

tablish—for application within its own boundaries—certain

standards or other requirements which are more stringent

than those mandated by the Clean Water Act. Signifi-

cantly, § 301(bX1\C) does not incorporate by reference any

“requirements” of an affected downstream state under

§ 401(aX2) of the Act. Therefore, § 301(bX1\C) can only

reasonably be interpreted to refer to more stringent re-

quirements of the kind preserved under § 510 for source

state administration and more stringent § 303(c) source

state water quality standards (which, it is significant to

note, are the only state law requirements subject to a § 401

compliance certification).

In sum, there is nothing in §§ 301(bX1\C), 303(c), or 510

to suggest that Congress intended these provisions to sub-

ject an out-of-state source to the differing or more strin-

gent requirements which a downstream state (or any other

state) might choose to adopt and apply to its own resident

sources. Such an expansive interpretation of §§ 301(bX1C),

303(c), and 510 would nullify the express provisions of the

Act which grant EPA discretionary authority, under the

exceptional circumstance of an interstate water quality dis-

pute, to consider the standards of a downstream state and

tailor more stringent permit conditions as “‘necessary’’ to

protect against an “undue impact” on downstream state

water qualilty.'®

“ Although the issue is not necessary to a decision in the present

case, industry amici believe that, in order for EPA to give “federal

effect” to a downstream state’s water quality standards in the context

of resolving an interstate water quality dispute, EPA must comply with

procedural requirements akin to those associated with ‘‘federal stand-

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matter of Commerce Clause law, if not proper statutory

construction—would be if, as an element the Act’s com-

prehensive scheme of federal regulation, Congress had ez-

pressly and unmistakably granted downstream states the

power to control out-of-state discharges, and thus interfere

with out-of-state commercial activities in the manner which

the Tenth Circuit’s ruling clearly allows. In short, absent

the finding of such an express delegation by Congress, the

lower court’s decision violates well-established Commerce

Clause principles.

State-of-the-art industrial water usage and treatment

practices are such that virtually every industrial plant of

every size and kind must discharge at least some waste-

water effluent after it is created to meet the requirements

of the Clean Water Act. The power to regulate or prohibit

industrial discharges, therefore, is the power to regulate

or prohibit industrial activity itself.

Oklahoma’s adoption of a “‘non-degradation”’ standard in

the Illinois River at the Arkansas-Oklahoma state line, as

applied by the Tenth Circuit, represents an assertion of

downstream state power to prohibit upstream state dis-

Oklahoma in this case, the power unilaterally to interfere

with or prohibit commerce in another state.”

Such an express downstream state power to burden in-

terstate commerce cannot reasonably be said to exist on

™ Congress is free to authorize state-law intrusions upon interstate

commerce, but any such delegation of Congress’ exclusive authority

over interstate commerce must be “expressly stated.’’ Sporhase v. Ne-

braska, 458 U.S. 941, 960 (1982). Courts have been hesitant to find

quiring that such an intent be “unmistakably clear.” South-Central Tim-

ber Development, Inc. v. Wunnicke, 467 U.S. 82, 92 (1984); accord

Northeast Bancorp, Inc. v. Board of Governors, 472 U.S. 159, 174 (1985)

(requiring “‘plain authorization’ by Congress).

the face of the statute, for all the reasons previously dis-

cussed. It is evident from the lower court’s own extensive

and somewhat strained analysis of the Act that the Tenth

Circuit also could not find in the statute any plain or

unmistakable delegation of such power to downstream

states.™ Nor is it sufficient for a court to infer such power

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the broad federal preemption basis of this Court’s decision in Ouellette.

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When Congress has spoken clearly and unmistakably to

the contrary by providing an exclusive, case-by-case, EPA

forum for resolving interstate water quality disputes, no

court should be allowed to grant a downstream state the

power to interfere unilaterally with permitting decisions

in the source state.

EPA’s role in issuing permits for discharges to inter-

state waterways, and EPA’s role in resolving water quality

disputes concerning discharges to interstate waterways,

was not intended by Congress to be reduced to a me-

chanical process of simply applying, whenever they are

different or more stringent, the EPA-approved standards

of affected downstream states. There is thus no basis for

the lower court’s conclusion that downstream state stand-

ards occupy a position of preeminence (or even occupy an

equivalent status with source state standards) in the fed-

eral regulatory framework.

V. The Tenth Circuit’s Absolute Prohibition Of New

Discharges To Waters Not Meeting Water Quality

Standards Lacks A Proper Statutory Basis

Compounding the error of giving preeminent, mandatory

compliance status to affected downstream state standards,

the Tenth Circuit also misread the Act as absolutely pro-

hibiting any new or increased discharges to a waterway

which is not currently meeting the downstream state’s (or

the source state’s) water quality standards.

While it is true that a stated “goal” of the Act is the

elimination of discharges of pollutants, it is equally un-

deniable that the specific substantive provisions of the Act

do not require such elimination and that the Act allows

each state to decide for itself how far and how fast it will

move towards achieving that goal. The Act has never been

interpreted by EPA, or by any court heretofore, to require

an absolute ban on new or increased discharges in order

to achieve the Act’s goals, whether at the behest of a

downstream state or not.

In support of its conclusion that such a prohibition exists

in the Act, the Tenth Circuit relied almost exclusively upon

its “common sense” understanding of the Act’s goals and

purposes and the “absurdity” of a policy that would allow

a new discharge—including one whose individual impact is

undetectable—to be made into a waterway which is not

currently meeting applicable water quality standards. 908

F.2d at 631.82. 1 The absence of “an explicit imprimatur’

in the statute (908 F.2d at 632, emphasis in original) for

the court’s absolutist ruling, however, obviously cannot be

overlooked.

The “national goal” of eliminating the discharge of pol-

lutants into navigable waters by 1985, upon which the

lower court placed so much emphasis (908 F.2d at 630-

32), has not been achieved by 1991 and by many accounts

may not ever be achieved. Nor should undue weight be

given to the equally slippery notion, adopted by the Tenth

Circuit, that EPA’s “watchful role” and other responsi-

bilities as custodian of the navigable waters is sufficient

to “subsume the power [or duty] to prohibit any new dis-

charge of pollution, regardless of the magnitude of its

impact, where the existing quality of the receiving waters

does not meet required standards.’’*

It is illogical to conclude that EPA’s powers or duties

under the Act are unlimited when it comes to regulating

or prohibiting new discharges, but are severely restricted

when it comes to determining the applicable standards for

discharges to interstate waterways. Industry amici submit

that, based on the discretionary federal balancing process

set out in the interstate dispute resolution provisions of

the Act (as well as the Commerce Clause balancing test,

= 908 F.2d at 634. More than a matter of proper statutory construc-

tion, as discussed previously the Commerce Clause also does not allow

the out-of-state application of a broadly prohibitive ‘“‘non-degradation’’

or similar downstream stete water quality standard without express

tite aa

if express federal preemption is found not to exist), the

Tenth Circuit got it exactly backwards. The statute ex-

plicitly grants EPA discretion to determine the “applicable

water quality requirements” for discharges to interstate

waterways when a dispute arises among neighboring states,

whether EPA itself or the source state is the permit-issuer.

The statute imposes no strict duty and confers no broad

authority upon EPA (and certainly not upon a downstream

state) to ban all new or increased discharges to waterways

not currently meeting water quality standards.

Indeed, the breadth of EPA’s duties and the scope of

EPA’s authority in both of these respects cannot be more

aptly described than by asking, in the words of this Court

in Ouellette: Does the proposed discharge, in EPA’s judg-

ment, have an “undue impact” or unacceptable effect on

the waters in question? Requiring EPA to apply auto-

matically the additional or more stringent standards

adopted by an affected downstream state (or stay com-

pletely out of the interstate dispute, and thus defer to the

source state), and requiring EPA to ban absolutely any

new discharge to a waterway not currently meeting the

applicable standards, robs EPA of the federal balancing

role which Congress expressly granted EPA under the

Act, as recognized by this Court in Ouellette.”

CONCLUSION

The Tenth Circuit’s grant of automatic, mandatory com-

pliance status to the federally-approved state water quality

standards of affected downstream states—giving them

preeminent status over federally-approved source state

standards—is contrary to the Clean Water Act, this Court’s

broad federal preemption construction of the Act in Oue-

lette, and Commerce Clause principles as well.

" Judicial review of EPA's exercise of that discretion, based upon a

proper record of EPA's decision, is available to protect aggrieved par-

The lower court’s absolute ban or new discharges to

waterways not currently meeting applicable water quality

standards is without any proper statutory basis.

For the foregoing reasons, amici curiae Champion In-

ternational Corporation, American Paper Institute, Na-

tional Forest Products Association, American Iron and

Steel Institute, American Mining Congress, The Fertilizer

Institute, Chemical Manufacturers Association, National

Association of Manufacturers, Associated Industries of Ar-

kansas, Arkansas Federation of Air and Water Users, Inc.,

and Arkansas Poultry Federation respectfully urge the

Court to reverse the decision of the Court of Appeals.

RICHARD A. FLYE

McKENNA & CUNEO

1575 Eye Street, N.W.

Washington, D.C. 20005

(501) 731-5800

Counsel for

Associated Industries of

Arkansas and Arkansas

Federation of Air and Water

Users, Inc.

May 31, 1991

R fully submitted

J. JEFFREY MCNEALEY

(Counsel of Record)

JANET J. HENRY

PORTER, WRIGHT, Morris &

ARTHUR

41 South High Street

Columbus, Ohio 43215

(614) 227-2000

MICHAEL K. GLENN

MICHAEL G. Dowpb

_ PorTeR, WRIGHT, Morris &

Little Rock, Arkansas 72201

(501) 375-9131

Counsel for

Arkansas Poultry Federation

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.