# Amicus Curiae Brief — Arkansas v. Oklahoma

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 946

## Text

In The

Supreme Court of the United States
October Term, 1991

¢
STATE OF ARKANSAS, et al.,

Petitioners,
V.

STATE OF OKLAHOMA, et al.,
Respondents.

>
ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

STATE OF OKLAHOMA, et al.,
Respondents.

e

On Writs Of Certiorari To The United States
Court Of Appeals For The Tenth Circuit
}

MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF OF SIERRA CLUB,
and AMICUS CURIAE BRIEF OF SIERRA CLUB,
IN SUPPORT OF RESPONDENTS.
¢

Date: July 19, 1991 SrtepHan C. VoLkeR
SierRA Cius LecaL Derense
FunD, INc.
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
(415) 627-6700

Counsel for Amicus Curiae
Sierra Club

Nos. 90-1262, 90-1266
®

In The

Supreme Court of the United States

October Term, 1991
>

STATE OF ARKANSAS, et al.,
Petitioners,

STATE OF OKLAHOMA, et al.,
Respondents.

S
ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

STATE OF OKLAHOMA, et al.,
Respondents.

o

MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF OF SIERRA CLUB,
IN SUPPORT OF RESPONDENTS.

e

Sierra Club hereby respectfully moves this Court,
pursuant to Supreme Court Rule 37.4, for leave to file the
attached Amicus Curiae Brief of Sierra Club in Support of
Respondents.

The grounds for this motion are twofold. First, Sierra
Club and its more than 630,000 members have a vital
interest in protecting and enhancing the quality of the

nation’s waterways. Sierra Club members, through orga-
nizational outings as well as individual activities, regu-
larly use and enjoy for recreational, aesthetic and
scientific purposes, thousands of lakes, rivers, streams
and marine waters throughout this country, including the
Illinois River in Arkansas and Oklahoma. The ruling
below properly enforces the Clean Water Act’s proscrip-
tion against violation of federally-approved water quality
standards for such waters. Second, the Sierra Club’s
counsel, the Sierra Club Legal Defense Fund, has exper-
tise in the Clean Water Act and its regulations which can
assist this Court in the disposition of this matter. The
Legal Defense Fund has successfully prosecuted
numerous citizen enforcement suits against violations of
the Clean Water Act during the last decade, including
Sierra Club v. Union Oil Co., 813 F.2d 1480 (9th Cir. 1987),
judgment vacated, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.
2d 264 (1988), judgment amended and reinstated, 853 F.2d
667 (9th Cir. 1988); Sierra Club v. Chevron U.S.A., Inc., 834
F.2d 1517 (9th Cir. 1987); and Sierra Club v. Electronic
Controls Design, Inc., 909 F.2d 1350 (9th Cir. 1990).

In accordance with Supreme Court Rule 37.3, by let-
ter dated June 28, 1991 Sierra Club requested petitioners
State of Arkansas and the Environmental Protection
Agency to consent to the filing of Sierra Club’s proposed
amicus curiae brief. As of this date, petitioner Environ-
mental Protection Agency and petitioner State of
Arkansas have consented to the filing.

For the foregoing reasons, Sierra Club moves this
Court for leave to file the attached Amicus Curiae Brief of
Sierra Club in Support of Respondents.

Date: July 19, 1991 Respectfully submitted,

STEPHAN C. VOLKER
Sierra Crus Lecat Derense
Funpb, INc.
180 Montgomery Street, Ste. 1400
San Francisco, CA 94104

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2.

Nos. 90-1262, 90-1266

e

In The

Supreme Court of the United States
October Term, 1991

«

STATE OF ARKANSAS, et al.,
Petitioners,

STATE OF OKLAHOMA, et al.,
Respondents.

°

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

STATE OF OKLAHOMA, et al.,
Respondents.

¢

AMICUS CURIAE BRIEF OF SIERRA CLUB,
IN SUPPORT OF RESPONDENTS.

S

TABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE .................. 1
SUMMARY OF ARGUMENT...................005. 2

ARGUMENT: THE TENTH CIRCUIT CORRECTLY
UPHELD EPA’S DETERMINATION
THAT THE CLEAN WATER ACT
REQUIRES DISCHARGERS TO
COMPLY WITH ALL APPLICABLE
WATER QUALITY STANDARDS....... 3

A. Compliance With Federally-Approved Water
Quality Standards Is The Paramount Objective
Gy Bee ED WED GREE ccc cccccncccsccccce 3

B. Arkansas’ Demand That Upstream States Be
Allowed To Satisfy Their Water Quality Stan-
dards By Exporting Their Wastes To Waters Of
Downstream States Would Thwart The Clean
dew cebéedeoes 13

C. Arkansas’ Invocation Of Ouellette And Other
Federal Preemption Cases Is Misplaced, Since
No State Common Law Claims Are Presented
ln RIN LEE TE EE eae ae ash ea 14

D. Arkansas’ “Parade of Horribles” Lacks Practi-
cal Merit And Improperly Asks This Court To
Invade The Legislative Arena And Upset The
Balance Already Struck By Congress......... 16

SE a dadbdnhenuhicsccbbcctbevneésencess 17

ii

TABLE OF AUTHORITIES

Page
Cases:
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982),
cert. denied, 458 U.S. 1111 (1982)...........-.000s. 13
Champion International Corporation v. EPA, 652
F.Supp. 1398 (W.D. N.C. 1986), vacated and
remanded, 850 F.2d 182 (4th Cir. 1988)............. 15
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984). ... 2... 66. c eee e eee ees 9
E.I. DuPont De Nemours & Co. v. Train, 430 U.S. 112
GE ote cesncseccsoncenccscédevectoudtagsesccccces 8
Federal Election Comm'n v. Democratic Senatorial
Campaign Comm., 454 U.S. 27 (1981)............-5-: 8
Illinois v. City of Milwaukee, 731 F.2d 403 (7th Cir.
1984), cert. denied, 469 U.S. 1196 (1985)......... 14, 15
International Paper Co. v. Ouellette, 479 U.S. 481
DE adchtcanedeceesscbavedcucesnoessooses ,0o 8H, 18
Natural Resources Defense Council v. EPA, 822 F.2d
0B8 GA. Cle BOGE coccccccvccccccccccccccccsccces 4

Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109
(4th Cir. 1989), cert. denied, 491 U.S. 904 (1989)..... 2

Sierra Club v. Union Oil Co., 813 F.2d 1480 (9th Cir.
1987), judgment vacated, 485 U.S. 931 (1988),
judgment amended and reinstated, 853 F.2d 667
Be EE. av ccccccenedecccecdssdenesceccocces 2, 5

State of Oklahoma v. EPA, 908 F.2d 595 (10th Cir.
Sb eGeseredssccsscnsevsscotsseccosts 11, 12, 13, 15

TABLE OF AUTHORITIES - Continued

Page

Udall v. Tallman, 380 U.S. 1 (1965).................... 8

STATUTES AND REGULATIONS:

Clean Water Act, as amended, 33 U.S.C.
i bs bb bocce st veeceetcovccs passim
§ 101(a)(1), 33 U.S.C. 1251(a)(1)................. 3, 12
Oe Me MP a scccrccccccccccccccnsccccess 16
Fe 7, 11, 12
SD SUV BD UBL. TING)... . ccc ccc ccccccccccces 3
GE a ee 4
§ 301(b)(i XC), 33 U.S.C. 1311(b)(1MC)... passim
rs Msc cs cccvccccececeeseces 9
ies ce cbvcceweseereesaceves 4
eo ae ree 2, 4
ee cccs scene dadsbcasoncewes 7
PS OP es MD oes cer cccccccescccccecs 4
SD Seem SO USL. IDIDD)..... cc cccccccccccccces 4
Pe OP We BID occ cc ccccccccccccccesess 2
§ 303(c)(3), 33 U.S.C. 1313(c)(3) ...... 20.0. e eee, 5
§ 303(c)(4), 33 U.S.C. 1313(c)(4) ... 2.00, 5
§ S0Ma), 33 US.C. 1314e)...... 0... cece ccc e neces 4
§ 304(b), 33 U.S.C. 1314(b)................. 0c econ 4
EC 16

iv

TABLE OF AUTHORITIES - Continued

Page
a” ae ary re 10, 11, 12
§ 401(a)(2), 33 U.S.C. 1341(a)(2)........ 2, 7, 8, 10, 13
i ee ads Cente 3, 10
GREE SP WH. BUUMMEP oc cc cccccccuccccceee 4
§ 402(a)(2), 33 U.S.C. 1342(a)(2)................. 6, 10
§ ata), 33 USC. 1F6BaMS) ... nec ecccccccess 10
BP ee MGs cocks cciedecenivesesais 5
§ 402(b)(1)(A), 33 U.S.C. 1342(b)(1)(A).... 2.2... 6, 10
§ 402(b)(5), 33 U.S.C. 1342(b)(5)............ 10, 12, 13
§ 402(d)(2), 33 U.S.C. 1342(d)(2)..............04. 2, 11
§ 402tGG), 33 USC. 1S6RGENS).... cere ccecccess 11
ee Ms MDGs cucdvcnccvestcvontaeces 10
SS Fee SP Ws SU bn cccccecvccacccseces 9, 10
IE Med oS oa 5

40 C.F.R.:

id wees ee Ghee ae Maman ewe aes 7,8
EE Ge ye pene Meets Siete. eee 7
A Ae ae OR SRT Te ~
te ital Aid bel eS ey eae ee eee ou le 11
ee ein ave aus ih eEeRSESS 4a eeee eee 11
leis wecearlediavestsnteweancaeeeneiake 7

Vv

TABLE OF AUTHORITIES - Continued

Page
RN Od cesudsetcaverasewtiswiededesnsceeednes 5
DE acivete vin vexbhe do eseoehawes Cubdasesakeod 4, 16
cViisiwes cneddiewnsberbiven aucesWonuheeics 8

LEGISLATIVE MATERIALS:

H.R. Conf. Rep. No. 830, 95th Cong., 1st Sess.
(1977), reprinted in 1977 U.S. Code Cong. &
SE PPE cn ahewusivivenscovevéscsicicesce 12

S. Rep. No. 370, 95th Cong. 1st Sess. (1977),
reprinted in 1977 U.S. Code Cong. & Admin.
PE EY SHEN rhode oeevececdcertcceesesseess 9, 14

S. Rep. No. 414, 92d Cong., Ist Sess. (1971),
reprinted in 1972 U.S. Code Cong. & Admin.
Pe EE So kb code tects i ecteeneetetiees veces 4,9

INTEREST OF AMICUS CURIAE

Amicus Curiae Sierra Club is a non-profit corporation
organized and existing under the laws of the State of
California, and has its principal place of business at 730
Polk Street, San Francisco, California 94109. The Sierra
Club is a national conservation organization comprising
over 630,000 members.

The objectives of the Sierra Club include the conser-
vation, protection and sound management of natural
resources, and the preservation and enhancement of our
environment. The stated corporate purposes of the Sierra
Club are:

To enhance and protect by all lawful means the
natural resources and human environment of
the United States and the earth in general; to
explore, enjoy, and preserve the scenic resources
of the United States and its forests, waters, wild-
life and wilderness; to undertake and to publish
scientific, literary, and educational studies con-
cerning them; to educate the people with regard
to the national and state forests, parks, monu-
ments, and other natural resources of especial
scenic beauty and to enlist public interest and
cooperation in protecting them.

The Sierra Club’s concerns encompass the wise utili-
zation and protection of the navigable waters of the
United States. Members of the Sierra Club regularly use
and enjoy these water resources, including the Illinois.
River which is the subject of this action, for fishing,
boating, camping, swimming, photography, nature study
and other forms of recreational, scientific and spiritual
activity.

The Sierra Club’s vital interest in this case stems from
its long-standing and continuing efforts to assure proper
interpretation and enforcement of the Clean Water Act.
The Sierra Club has successfully prosecuted numerous
citizen suits to enforce the effluent limitations and water
quality standards of the Act where the Environmental
Protection Agency and state water pollution control agen-
cies have failed to do so, including Sierra Club v. Simkins
Industries, Inc., 847 F.2d 1109 (4th Cir. 1989), cert. denied,
491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 693 (1989) and
Sierra Club v. Union Oil Co., 813 F.2d 1480 (9th Cir. 1987),
judgment vacated, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d
164 (1988), judgment amended and reinstated 853 F.2d 667
(9th Cir. 1988), judgment on remand, 716 F.Supp. 429 (N.D.
Cal. 1988).

The principal issue presented in this case, whether
upstream states may violate federally-approved water
quality standards of downstream states, has significant
implications for water resources in which the Sierra Club
and its members have a compelling interest.

¢

SUMMARY OF ARGUMENT

The Clean Water Act requires dischargers to comply
with federally-approved water quality standards of
affected states. 33 U.S.C. §§ 1311(b)(1)(C), 1312(a),
1313(c), 1341(a)(2), 1342(d)(2). To hold otherwise would
permit states to export their water pollution without the
consent of the receiving jurisdiction, unfairly shifting pol-
lution problems, and the burden of waste treatment, to
downstream states. Arkansas’ “parade of horribles” is

unconvincing, and ignores Congress’ scheme. Thus, the
Tenth Circuit properly upheld EPA's determination that
the Clean Water Act requires Arkansas to comply with
Oklahoma’s federally-approved water quality standards.

S

ARGUMENT

THE TENTH CIRCUIT CORRECTLY UPHELD EPA’S
DETERMINATION THAT THE CLEAN WATER ACT
REQUIRES DISCHARGERS TO COMPLY WITH ALL
APPLICABLE WATER QUALITY STANDARDS.

A. Compliance With Federally-Approved Water
Quality Standards Is The Paramount Objective
Of The Clean Water Act.

The Clean Water Act codifies Congress’ “national
goal that the discharge of pollutants into navigable
waters be eliminated by 1985.” Section 101(a)(1),! 33
U.S.C. § 1251(a)(1). The purposes of this goal are “restora-
tion and maintenance of the chemical, physical and bio-
logical integrity of the Nation’s waters.” Id. To achieve
these objectives, the Act prohibits the discharge of any
pollutants to navigable waters except as permitted by the
Act. Section 301(a), 33 U.S.C. § 1311(a).

Congress created the National Pollutant Discharge
Elimination System (“NPDES”) to implement this dis-
charge prohibition. Section 402, 33 U.S.C. § 1342. Under
the NPDES program applicants for discharge permits
must satisfy “all applicable requirements” under the Act,

1 All section references are to the Clean Water Act, unless
otherwise stated.

including both technology-based and water quality-based
effluent limitations. 33 U.S.C. §§ 1342(a)(1), 1311(b), 1312,
and 1313(b). EPA is required to establish and periodically
update technology-based limits which, in ratchet-like
manner, impose increasingly stringent standards as waste
treatment technology improves over time. Sections 301(b)
and 304(b), 33 U.S.C. §§ 1311(b) and 1314(b). Congress
intended that the Act be “technology-forcing,” stressing
that it embodies a “mandate to press technology and
economics” to achieve “increasingly tougher controls” on
industrial effluent reduction. S.Rep. No. 414, reprinted in~
1972 U.S. Code Cong. & Admin. News at 3668, 3709;
Natural Resources Defense Council v. EPA, 822 F.2d 104,
123-24 (D.C. Cir. 1987).

EPA and the states share responsibility for establish-
ing water quality-based limits. EPA develops water qual-
ity criteria designed to protect “plankton, fish, shellfish,
wildlife, plant life, shorelines, beaches, esthetics and rec-
reation.” Section 304(a), 33 U.S.C. § 1314(a). Whenever
EPA determines that technology-based effluent limita-
tions are insufficient to assure protection of public health
and beneficial uses, including “the protection and propa-
gation of a balanced population of shellfish, fish and
wildlife, and . . . recreational activities in and on the
water,” it “shall” establish water quality-based effluent
limitations for the pertinent point-sources. Section 302(a),
33 U.S.C. § 1312(a). States are directed to develop, and at
least every three years to update, water quality standards
consistent with criteria adopted by EPA. Section 303(a),
33 U.S.C. § 1313(a); 40 C.F.R. Part 131.

Such standards serve the dual purposes of
establishing the water quality goals for a

5

specific water body and serving as the regulatory
basis for establishment of water quality-based treat-
ment controls and strategies beyond the technol-
ogy-based level of treatment required by
sections 301(b) and 306 of the Act.

40 C.F.R. § 130.3, emphasis added.

If state-proposed water quality standards “protect
the public health or welfare, enhance the quality of water
and serve the purposes of this [Act],”2 and are approved
by EPA, they “shall thereafter be the water quality stan-
dard for the applicable waters of that State.” Section
303(c)(3), 33 U.S.C. § 1313(c)(3). If EPA disapproves the
state standards, it shall “promptly” propose and promul-
gate water quality standards for such state. Section
303(c)(4), 33 U.S.C. § 1313(c)(4).

EPA is responsible for issuing NPDES permits, but
may delegate that authority to qualified states. Section
402(b), 33 U.S.C. § 1342(b). EPA issued the Fayetteville
NPDES permit here in question, because at the time of its
issuance, Arkansas had not yet received delegated per-
mitting authority under Section 402(b). States may devise
more stringent effluent limitations and water quality
standards than the minimum requirements established in
the Act and promulgated by EPA. Section 510, 33 U.S.C.
§ 1370; Sierra Club v. Union Oil Co., supra, 813 F.2d at 1487.
More stringent state effluent limits, including those
“required to implement any applicable water quality

2 EPA’s regulations clarify that to “serve the purposes of
the Act,” water quality standards should “wherever attainable,
provide water quality for the protection and propagation of
fish, shellfish and wildlife and for recreation in and on the
water....” 40 C.F.R. § 130.3.

standard established pursuant to the [Act],” are enforced
under the Act. Section 301(b)(1)(C), 33 U.S.C.
§ 1311(b)(1 XC).

The express language Congress selected in drafting
the Clean Water Act leaves no doubt of its intent that
water quality standards designed to protect fish, wildlife,
recreation and other beneficial uses be strictly enforce-
able. Section 301(b)(1)(C) directs that

In order to carry out the objective of this chapter
there shall be achieved . . . not later than July 1,
1977 any more stringent limitations, including
those necessary to meet water quality stan-
dards . . . established pursuant to any State law
or regulations (under authority preserved by
section 1370 of this title) . . . or required to
implement any applicable water quality stan-
dard established pursuant to this chapter.

33 U.S.C. § 1311(b)(1(C).

Sections 402(a)(2) and 402(b)(1)(A) implement this
mandate by prohibiting the issuance of any NPDES per-
mit which does not assure compliance with Section 301:

The [EPA] Administrator shall prescribe condi-
tions for [EPA-issued NPDES] permits to assure
compliance with the requirements of paragraph
(1) of this subsection [which incorporates, inter
alia, the requirements of Section 301]... .

33 U.S.C. § 1342(a)(2); see also, 33 U.S.C. § 1342(a)(3).

The [EPA] Administrator shall approve each
[proposed State NPDES permitting] program
unless he determines that adequate authority
does not exist: (1) To issue permits which - (A)
apply, and insure compliance with, any applica-
ble requirements of sections 1311, 1312... .

33 U.S.C. § 1342(b)(1)(A).

Consistent with the foregoing, section 401 prohibits
the issuance of any federal permit, including EPA-issued
NPDES permits as issued to Fayetteville herein, which
may affect the quality of water in a downstream state,
unless the permit is conditioned “to insure compliance
with applicable water quality requirements.” 33 U.S.C.
§ 1341(a)(2). “If the imposition of conditions cannot
insure such compliance such [federal agency] shall not
issue such license or permit.” Id.; accord, 40 C.F.R.
§ 121.2(a)(3) (state certifications under section 40] must
assure that the proposed activity will not violate “appli-
cable water quality standards”) and 40 C.FR. 124.53(e)
(state certifications must assure compliance with sections
301 and 303, among others).

EPA’s regulations governing the NPDES permitting
process repeat the foregoing statutory commands:

No [NPDES] permit may be issued when the
imposition of conditions cannot ensure compli-
ance with the applicable water quality requirements
of all affected states.

40 C.F.R. § 122.4(d) (implementing Section 301(b)(1)(C) of
the Act), emphasis added.

[EJach NPDES permit shall include conditions
meeting the following requirements when appli-
ae

(d) Water quality standards and state requirements:
any requirements in addition to or more stringent
than promulgated effluent limitations, guide-
lines or standards under sections 301, 304, 306,
307, 318 and 405 of [the Clean Water Act] neces-
saryto...

(4) Conform to applicable water quality require-
ments under section 401(a)(2) of [the Clean

Water Act] when the discharge affects a state
other than the certifying state.

40 C.F.R. § 122.44(d)(4) (implementing Section 401(a)(2) of
the Act), emphasis added.

EPA’s regulations governing state adoption! of water
quality standards are in accord as well:

In designating uses of a water body and the

— criteria for those uses, the State

shall take into consideration the water quality

standards of downstream waters and shall ensure

that its water quality standards provide for the

attainment and maintenance of the water quality
standards of downstream waters.

40 C.F.R. § 131.10(b).

EPA’s regulations likewise require that state certifica-
tions under Section 401 must assure that the proposed
activity will not violate “applicable water quality stan-
dards.” 40 C.FR. § 121.2(a)(3).

The Tenth Circuit properly gave effect to this settled
statutory and regulatory scheme. Courts should accord
substantial deference to the consistent interpretation of a
statute by the agency entrusted with its administration.
Federal Election Comm'n v. Democratic Senatorial Campaign
Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23
(1981); E.l. DuPont De Nemours & Co. v. Train, 430 U.S.
112, 135 n.25, 97 S.Ct. 965, 978 n.25, 51 L.Ed.2d 204 (1977)
(EPA interpretation of Clean Water Act entitled to great
weight, particularly in view of technical nature of statute
and agency’s expertise); Udall v. Tallman, 380 U.S. 1, 16, 85
S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Even assuming
arguendo that Congress’ intent to require upstream states
to comply with federally-approved downstream water

quality standards is not clearly expressed, EPA’s authori-
tative and consistent interpretation of the Act to so
require is entitled to substantial deference. Chevron,
U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778,
2782, 81 L.Ed. 694 (1984).

The Tenth Circuit’s construction of the Act and its
regulations, moreover, is fully consistent with the Act’s
legislative history. Congress noted that EPA

is under a specific obligation to require that level
of effluent control which is needed to implement
existing water quality standards without regard to
the limits of practicality.

S.Rep. No. 414, reprinted in 1972 U.S. Code Cong. &
Admin. News at 3668, 3710, emphasis added. Even
though in 1977 Congress relaxed the best available tech-
nology effluent limitations in certain circumstances, it
declined to suffer any relaxation of water quality-based
standards,’ explaining:

pressure must be maintained to assure

improved water quality and to avoid slipping
back.

S.Rep. No. 370, reprinted in 1977 U.S. Code Cong. &
Admin. News at 4326, 4367.

Section 505(h) likewise reflects Congress’ intent that
downstream states be empowered to enforce their water
quality standards against upstream polluters. 33 U.S.C.

3 The 1977 amendments allowed the substitution of “best
practicable technology” for “best available technology” in
respect to the discharge of certain pollutants provided “such
modification will not interfere with the attainment or mainte-
nance” of high levels of water quality. 33 U.S.C. § 1311(g).

10

§ 1365(h). This provision authorizes the governor of a
state to sue EPA to enforce an “effluent standard or
limitation under this chapter” whose violation in an
upstream state is “causing a violation of any water qual-
ity requirement in his state.” Because subsection (f)
defines “effluent limitation or standard under this chap-
ter” to include certifications under section 401 and
NPDES permits under section 402, downstream states
such as Oklahoma are plainly entitled to enforce their
water quality standards against EPA discharge permits
issued in upstream states such as Arkansas.

The Act’s unambiguous mandate that dischargers
comply with “any” applicable water quality standard
established pursuant to che Act, as expressed in sections
301(b)(1)(C), 402(a(2) and 402(b)(1)(A), and further
enforced in Section 401(a)(2), is dispositive here. No other
provision of the Act, including those on which Arkansas
relies, purports to relieve dischargers of this paramount
duty.

Arkansas urges nonetheless that dischargers are free
to violate EPA-approved water quality standards in
downstream states, on the grounds that section 402(b)(5)
of the Act requires source states to consider, but not
necessarily to accept, downstream state recommendations
with respect to permit applications.* But section 402(b)(5)

4 Arkansas contends that section 402(b)(5) is applicable to
EPA-issued permits on the grounds section 402(a)(3), directs
that EPA-issued permits are “subject to the same terms, condi-
tions, and requirements as apply to a State permit program and
permits issued thereunder under subsection (b) of this sec-
tion.”

11

does not purport to exempt upstream states from comply-
ing with downstream water quality standards. Indeed, it
mentions neither section 301 nor section 401, nor the
independent requirements they impose.®

5 And, of course, Section 402(d)(2) mandates that “[nlo
permit shall issue” if EPA objects on the grounds a permitting
state failed to accept recommendations from an affected state
or the permit is “outside the guidelines and requirements of [the
Act].” 33 U.S.C. § 1342(d)(2), emphasis added. The latter prohi-
bition subjects NPDES permits to Section 301(b)(1)(C)’s
requirement that discharges comply with water quality stan-
dards.

Although it is true that Section 402(d)(3) states that [t}he
[EPA] Administrator may, as to any permit application, waive
paragraph (2) of this subsection [i.e., Section 402(d)(2)], as the
Tenth Circuit explained Congress did not intend thereby to
vest EPA with discretion to ignore violations of downstream
water quality violations. State of Oklahoma v. EPA, 908 F.2d 595,
611 n. 19 (10th Cir. 1990). EPA, moreover, readily concedes this
point:

[IN]Jo waiver of review [under Section 402(d)(3), (e)
or (f)] may be granted for the following classes or
categories: ...

(2) Discharges which may affect the waters of a
state other than the one in which the discharge origi-
nates.

40 C.F.R. § 123.24(d). EPA’s regulations governing its “review
of and objections to State permits,” moreover, specifically iden-
tify as a ground for objection, “[t}he effluent limits of permit
fail to satisfy the requirements of 40 C.F.R. 122.4(d).” 40 C.F.R.
§ 123.44. The latter regulation, as discussed infra, requires all
NPDES permits to

[clonform to the applicable water quality require-
ments under section 401(a)(2) of [the Clean Water

(Continued on following page)

12

Rather, section 402(b)(5) merely directs that source
states must solicit from affected states recommendations
that may pertain to any aspect of a permit application.
Since such recommendations obviously can address a
host of concerns and suggestions extending well beyond
the affected states’ adopted minimum water quality stan-
dards, it is not surprising that the source state is not
obliged to accept them. Such recommendations could
well suggest, for example, advanced methods of waste
treatment not otherwise required under the Act which
would yield water quality much higher than required by
the affected state’s water quality standards. The overarch-
ing goal of the Act is, after all, total elimination of pollu-
tants. 33 U.S.C. § 1251(a)(1). Promoting consultations that
would enhance water quality, rather than merely avoid its
illegal degradation is fully consonant with the Act’s
objectives. 33 U.S.C. § 1251. The fact that section 402(b)(5)
imposes an additional, consistent duty on source states to
afford downstream states an opportunity to submit rec-
ommendations concerning proposed upstream permits in
no wise relieves such permits from compliance with sec-
tions 301 and 401.

(Continued from previous page)

Act] when the discharge affects a State other than the
certifying State.

The foregoing regulatory direction is fully consistent with
Congress’ intent that no NPDES permit be “less stringent than
required by any State effluent limitations or water quality
standards.” H.R. Conf.Rep. No. 830, 95th Cong., Ist Sess. 97,
reprinted in 1977 U.S. Code Cong. & Admin. News at 4424,
4472. See discussion in State of Oklahoma v. EPA, supra, 908 F.2d
at 611.

13

Had Congress intended to relieve dischargers from
the absolute duty to comply with all applicable water
quality standards adopted pursuant to the Act, it could
easily have expressly so provided. But section 402(b)(5)
does not expressly, nor by necessary implication, do so.
Under settled rules of statutory construction, absent clear
language evincing a contrary intent, section 402(b)(5)
should be read in harmony, rather than in direct conflict,
with sections 301(b)(1)(C) and 401(a)(2) and the Act’s
paramount goal of water quality compliance they enforce.
Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir. 1982),
cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373
(1982).

B. Arkansas’ Demand That Upstream States Be
Allowed To Satisfy Their Water Quality Standards
By Exporting Their Wastes To Waters Of Down-
stream States Would Thwart The Clean Water Act.

Arkansas’ petition asks this Court to declare “open
season” on downstream water quality standards. As EPA
conceded below, Arkansas’ construction of the Act would
make achieving downstream water quality standards
“impossible in many circumstances or . . . possible only
by imposing a disproportionate burden on dischargers
located in the downstream state.” State of Oklahoma v.
EPA, supra, 908 F.2d at 606, quoting from EPA’s Brief at 21.

Under Arkansas’ interpretation, the water quality
“floor” established by the federal minimum standards
would become the “ceiling” of water quality for the
nation. Arkansas’ construction of the Act would punish
states with more stringent water quality standards and

14

reward those states which ignore downstream water

quality standards. Rewarding dischargers for locating in

states with less stringent water quality requirements (by

relieving them from complying with more stringent

downstream water quality standards) would result in

“pollution shopping,” contrary to the Congress’ intent:
The result [of lax EPA oversight of state permit
programs] might well be the creation of “pollu-
tion havens” in some of those States which have

approved permit programs. This result is exactl
what the 1972 amendments were designed to avoid.

S. Rep. No. 370, 95th Cong., 1st Sess. at 73, reprinted in
1977 U.S. Code Cong. & Admin. News at 4326, 4398,
emphasis added.

The decision of the Tenth Circuit does not usher in a
new era of water quality improvement, but rather merely
gives effect to the existing statutory and regulatory reg-
ime. It allows the steady march toward elimination of
water pollution to proceed, as Congress intended. The
interpretation offered by Arkansas, by contrast, is a step
backward in water quality improvement, and contrary to
both the letter and spirit of the Clean Water Act and its
regulations.

C. Arkansas’ Invocation of Ouellette and Other Fed-
eral Preempticn Cases Is Misplaced, Since No State
Common Law Claims Are Presented Here.

Arkansas contends that International Paper Co. v.
Ouellette, 479 U.S. 481, 107 S.Ct. 805, 931 L.Ed.2d 883
(1987) and Illinois v. City of Milwaukee, 731 F.2d 403 (7th
Cir. 1984), cert. denied, 469 U.S. 1196 (1985) support its
claim that federally-approved water quality standards of

15

2 downstream state are not enforceable against upstream
dischargers. Its reliance is misplaced. As the Tenth Circuit
correctly observed, both of these cases involved a claim
by a downstream state plaintiff against an upstream state
discharger under state common law. These cases correctly
held that in the context of inter-state water quality dis-
putes, the Clean Water Act preempted state common law.
In contrast, the Tenth Circuit properly concluded

the case before us poses the question of the
applicability of the federally approved water
quality standards of an affected downstream
state in permitting a discharge in an upstream
State.

State of Oklahoma v. EPA, supra, 908 F.2d at 607. The Tenth
Circuit accurately observed that Ouellette’s discussion of
sections 401 and 402 was dicta. Id. at 608. Consistent with
Ouellette and Illinois, federal law controls the allocation of
water quality among the states. Champion International
Corporation v. EPA, 652 F.Supp. 1398, 1299-1400 (W.D. N.C.
1986), vacated for lack of subject matter jurisdiction and
remanded, 850 F.2d 182, 186-87 (4th Cir. 1988) (noting that
EPA properly objected to North Carolina permit on
grounds it threatened to violate downstream Tennessee
water quality standards). And, as part I.A. of this brief
explains, the Clean Water Act and its regulations require
compliance by all dischargers with “any” applicable
water quality standards adopted pursuant to the Act.
Since Oklahoma’s water quality standards were approved
by EPA and apply to the segment of the Illinois River
affected by the Fayetteville discharge, that discharge
must comply with those standards.

16

D. Arkansas’ “Parade of Horribles” Lacks Practical
Merit and Improperly Asks this Court to Invade the
Legislative Arena and Upset the Balance Already
Struck by Congress.

Arkansas asserts the Tenth Circuit’s ruling usurps
source state prerogatives and will lead to “chaotic” con-
flicts between downstream and upstream states. Neither
claim has merit. Under the Act no state has discretion to
issue NPDES permits which violate federally-approved
water quality standards. 33 U.S.C. § 1311(b)(1)(C). The
Tenth Circuit’s carefully reasoned decision merely
enforces Congress’ judgment that “there shall be achieved
... not later than July 1, 1977, any more stringent limita-
tion, including those necessary to meet water quality
standards . . . established pursuant to [the Act].”

Arkansas’ fear of “chaos” is likewise unfounded. EPA
has ample authority under section 303 to assure that the
state water quality standards it must review at least every
three years are not in conflict and reflect the comprehen-
sive water quality planning efforts states must conduct
under sections 208 and 305. 33 U.S.C. § 1288, 1313 and
1315; 40 C.FR. Parts 130 and 131. The surest means of
avoiding and reconciling potential interstate conflicts is
by implementing, rather than sabotaging, the water qual-
ity management and planning functions the Act man-
dates. Uniform enforcement of water quality standards
will provide needed certainty for dischargers and the
public alike. Compliance with federally-approved stan-
dards will avoid, not create, chaos. Arkansas’ proposal
that upstream states be given discretion to violate federal
standards would have the opposite effect.

eS ee Te

—

17

Finally, and most importantly, comparison of the
potential conflicts which might flow from the respective
positions of Arkansas and Oklahoma confirms the wis-
dom of the Tenth Circuit’s ruling. If Oklahoma’s position
is sustained, some upstream dischargers may have to
tighten their discharge limits, but no water quality stan-
dards of any state will be violated, and the fish, wildlife,
recreation and other protected uses under the Act will be
enhanced. If Arkansas’ position is sustained, by contrast,
although some upstream dischargers will save money,
downstream states’ water quality standards will be vio-
lated, and the beneficial uses dependent thereon will be
harmed. Sierra Club submits that the former result is
much more consonant with the purposes of the Clean
Water Act than is the latter. Therefore this Court should
affirm the Tenth Circuit’s construction of the Act.

¢

CONCLUSION

The judgment of the Tenth Circuit Court of Appeals
holding that upstream state dischargers must comply
with federally-approved water quality standards of
downstream states should be affirmed.

Date: July 19, 1991
Respectfully submitted,

STEPHAN C. VOLKER

SieRRA Cius Lecat DeFrENsE
Funp, INc.

180 Montgomery Street,
Ste. 1400

San Francisco, CA 94104

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A25. Public record. Not legal advice.