Amicus Curiae Brief — Arkansas v. Oklahoma

Bupreme Court, U.S,

FILED

(73) 5 1 ) JUL 22 199}

eee”

No. 90-1266, 90-1262 LDFFICE OF THE CLERK

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1990

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

V.

STATE OF OKLAHOMA, ef al.,

Respondent.

STATE OF ARKANSAS, ef al.,

Petitioners,

ie

STATE OF OKLAHOMA, ef al,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuii

BRIEF OF SCENIC RIVERS ASSOCIATION OF OKLAHOMA,

CITY OF TAHLEQUAH OKLAHOMA, LAKE TENKILLER

ASSOCIATION, TENKILLER AREA COMMUNITY

ORGANIZATION, CITIZENS’ ACTION FOR A_ SAFE

ENVIRONMENT, SAVE THE LOWER ILLINOIS RIVER, AND

CALCASIEU LEAGUE FOR ENVIRONMENTAL ACTION NOW,

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

ecoLaw institute, inc. July 22, i991

Kathy Carter-White (Additional Counsel

P.O. Box 2132 Listed Inside Front

Tahlequah, OK 74465 Cover)

BEST AVAILABLE COPY

Joel Glenn Richardson

P.O. Box 141206

Austin, Texas 78714

James Ross Upton

523 West Shawnee

Tahlequah, Oklahoma

74464

Harvey Chaffin

City of Tahlequah

219 West Keetoowah

Tahlequah, Oklahoma

74464

Bill J. Ballard

HC 15, Box 1365

Watson, OK 74963

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 90-1262, 1266

STATE OF ARKANSAS, et al., Petitioners,

V.

STATE OF OKLAHOMA, ef al., kespondents.

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

Vv.

STATE OF OKLAHOMA, et al., Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF SCENIC RIVERS ASSOCIATION OF OKLAHOMA,

CITY OF TAHLEQUAH OKLAHOMA, LAKE TENKILLER

ASSOCIATION, TENKILLER AREA COMMUNITY

ORGANIZATION, CITIZENS’ ACTION FOR A_ SAFE

ENVIRONMENT, SAVE THE LOWER ILLINOIS RIVER, AND

CALCASIEU LEAGUE FOR ENVIRONMENTAL ACTION NOW,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES —__erecccccsssesseseseesenennneenens i

INTEREST OF AMICI CURIAE oo eeccecceccceeeeseseseneneneees 2

SUMMARY OF THE ARGUMENT...........ccccccscenenenees 4

ARGUMENT =—=——____Cscarcescsccscserecsccssscssccssssessssssesees 5

I. UPHOLDING THE TENTH CIRCUIT

DECISION IS THE ONLY DECISION

WHICH CAN BE RENDERED

CONSISTENT WITH THE

CONGRESSIONAL GOALS AND

POLICIES OF THE CLEAN WATER

ACT. A CONTRARY DECISION

WOULD ERODE THE MEANING AND

INTENT OF THE CLEAN WATER

|. oy rr ee 5

A. APPLYING DOWNSTREAM

STATE STANDARDS TO

UPSTREAM STATE SOURCES

MEETS THE GOALS AND

STATUTORY LANGUAGE OF

THE CLEAN WATER ACT uu... cece 8

B. ONCE A STATE WATER

QUALITY STANDARD IS

APPROVED BY EPA, EPA MAY

NOT REDEFINE THE STATE'S

GOALS. «—«-_—«_—————dCs=scccecccccnvesssscsccccossscecsece 10

II. REVERSAL OF THE TENTH CIRCUIT

DECISION WOULD LEAD TO

CONTINUED DEGRADATION OF

THE WATER QUALITY OF THE

ILLINOIS RIVER AND LAKE

ee) ~~ Aameebeiteretennictnene 15

A. THE ILLINOIS RIVER ISA

CANDIDATE FOR INCLUSION

IN THE NATIONAL WILD AND

SCENIC RIVERS PROGRAM ......... 15

B. THE ILLINOIS RIVER IS

ALREADY AN OKLAHOMA-

DESIGNATED SCENIC RIVER ...... 16

Ill. THE CITY OF FAYETTEVILLE

SHOULD CONTINUE ITS

HISTORICAL DISCHARGE OF ALL

EFFLUENT INTO THE WHITE RIVER ..... 19

ee eh): sesnnineuscenmenensenmes 20

TABLE OF AUTHORITIES

Cases Page

Asarco, Inc. v. E.P.A., 616 F.2d 1153

(Sth Cir. 19BD) ——casescscsvsssscseseressrernensecncecsssnreresesesasesesecees 6

Champion international Corporation

v. E.P.A., 652 F.Supp. 1398

(D.C. WD. ies TEE ekennenemnsearsmmenmesememcensnessces 14

Churchwell v. Robertson, 748 F.Supp. 768

(D. Edad 1990) enacsccccovsvcscsccecserorecsncenensesensecessnsncoeeoes 6

Flint Ridge Development Corporation v.

Scenic Rivers Association of Oklahoma,

GB US. THE CIGIG) ccccecesssenccssnsnsssssecscsncscscnsccsececesscocsees 18

Friends of the Earth v. Hintz, 800 F.2d 822

i ER ART, A 6

In Re Bethlehem Steel Corporation, (GCO #58,

DO TR GT ceccerrenrrrerncrsccseerserseenenesnessemnescrssencccceee 10,13

In Re Indianapolis Power & Light Co.,

E.P.A. N.P.D.ES. Permit Op. #17 (1975)... 12

International Paper Co. v. Ouellette, 479

UI BABE CIGBG) — ccceccerecccnsscssscncsvsssscesenscesccsvscenscsscsesere 6,21,22

Quivira Mining Company v. E.P.A., 765 F.2d

DG, (20tta Cie. 19BS) — ananenenccccccscsccerccsecevsecscsececonensessnsosesees 7

United States v. Marathon Development Corp.,

867 F.2d 96, (Ast Cir, 1990) .cccccccececsserseseneneneneeeeenenenees 9,12

United States v. Rivera Torres,656 F.Supp.

251 (D. Puerto RicO 1987) ....ccceceseseseseseseenenenennsnenenseneees 13

U.S. Steel v. Trane,556 F.2d

G22 (Tite Cig. 1977) .nnceccscecvscscssvsereceesoreneecensncesessecosees 12,22

Westvaco Corp. v. E.P.A.,899 2d 1383

(Gta Cle. IDI) cacccceccccccevsocevsvsecverncsnencecensnscesesesenensenees 1]

Statutes and Regulations

i

Administrative Procedures Act, as amended,

5 U.S.C. Sections 551-559 (1966)5 U.S.C.

Ai 21

Clean Water Act, as amended, 33 U.S.C. Sections

gg neers passim

Section 101, 33 U.S.C. Section 1251 _......... 5,6,10

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

I iat 13

Section 303(c)(2)(A),

lL \ ee 11

Section 401(a), 33 U.S.C.

En 6,7,8,9,12,19,21

Section 402(b), 33 U.S.C.

TS eae 6,12,21

Section 510, 33 U.S.C Section 1370 coeccececcccceee 12

Oklahoma Water Resources Board Rules and

Regulations

USSU Ea ee ee ea 17

ES RES aes MEL CRA SA eR 17

I iil ee cidceciartieciciin 18

Wild and Scenic Rivers Act, as amended, 16 U.S.C.

SC 16

EE SE nea 16

I i i 16

I ilk 16

gS cine oe ean 13

Legislative Materials

H.R. Conf. Rep. No. 940, 91st Cong., 2d Sess.,

reprinted in 1970 U.S. Code Cong. & Admin.

RC Sl 10

* IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 90-1262, 1266

STATE OF ARKANSAS, ef al., Petitioners,

V.

STATE OF OKLAHOMA, ef al., Respondents.

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

Vv.

STATE OF OKLAHOMA, et al., Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF SCENIC RIVERS ASSOCIATION OF OKLAHOMA,

CITY OF TAHLEQUAH OKLAHOMA, LAKE TENKILLER

ASSOCIATION, TENKILLER AREA COMMUNITY

ORGANIZATION, CITIZENS’ ACTION FOR A_ SAFE

ENVIRONMENT, SAVE THE LOWER ILLINOIS RIVER, AND

CALCASIEU LEAGUE FOR ENVIRONMENTAL ACTION NOW,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

ECOLAW INSTITUTE respectfully moves for leave to

submit this brief on behalf of amici Scenic Rivers

Association of Oklahoma, City of Tahlequah Oklahoma,

Lake Tenkiller Association, Tenkiller Area Community

Organization, Citizens’ Action for a Safe Environment,

Save The Lower Illinois River, and Calcasieu League For

Environmental Action Now in support of the Respondents.

Attorneys for Petitioner E.P.A. and for Respondent have

consented to the filing of such Brief, and Attorney for

Petitioner Arkansas has not responded. We urge this

Court to affirm the decision by the United States Court of

Appeals for the Tenth Circuit in Oklahoma v. E.P.A, 908

F.2d 595 (10th Cir. 1990).'

INTEREST OF THE AMICI CURIAE

Amicus Scenic Rivers Association of Oklahoma is a

nonprofit organization promoting the recreational

enjoyment of Oklahoma and national scenic waterways.

Its members engage in primary body contact recreational

use of the Oklahoma-designated Scenic Illinois River. Its

members study biotic associations in high-quality waters.

Just commercial canoeing on the Illinois River has

declined by 32% since 1984, from 67,204 in 1984 down to

46,000 in 1990, and Amicus is vitally affected by the quality

of water in the Illinois. Among other activities, Amicus

cosponsors a Campfire Lecture Series at an amphitheater

on one of several State campgrounds on the Illinois,

featuring such topics as the Endangered Species

populations which are habitat-dependent on the quality of

water in the Illinois.

Amicus City of Tahlequah, Oklahoma is a city of

approximately 10,000 persons. Tourism represents a major

portion of the economic base for the area and the Illinois

River and Lake Tenkiller attract a substantial part of the

tourist trade. About 550 jobs in Cherokee County are

directly attributable to tourism and the visitor industry,

generating about 38 million per annum in Cherokee

County. Tahlequah is the only Oklahoma city discharging

into the Illinois River above Lake Tenkiller. Its utilities

trust is presently completing a state of the art estimated

7.5 million dollar sewage treatment facility and peakflow

storage basins. Tahlequah gets its municipal water supply

from the Illinois River, downstream from the objectionable

discharge. If the Tenth Circuit decision is disturbed, then

Tahlequah’s water supply will contain a higher level of

sewage effluent constitutents than presently contributed by

the vested Arkansas National Pollution Discharge

Elimination System (NPDES) permit holding cities.

Amicus Lake Tenkiller Association members are

frequent or occasional recreational users of the Illinois

River for floating, rafting, enjoying wildlife, and relaxing at

the many resorts along the Scenic-designated portion of

the Illinois River. Its members primarily reside within a

90-minute drive — ...° Illinois. The Illinois River, and the

downstream af: .. Lake Tenkiller are the prime

immediate recreat .. ' resources for the Tulsa Oklahoma

area, and its members are suffering loss of recreational

opportunities by reason of the interim discharge of

Fayetteville effluent, both as per the overturned permit

and the violations thereof. Its members would suffer

economic and aesthetic harm if the Court were to reverse

the decision favorable to Lake Tenkiller.

Amicus Tenkiller Area Community Organization is

an incorporation of individuals in the Lake Tenkiller

geographical area, providing quasi-governmental services

such as fundraising for community fire and water entities,

and other amenities supplanting industrial development in

support of the economic base in the Lake Tenkiller

geographical area. TACO is comprised of community

volunteers. An adverse decision would indirectly open the

Lake community to other types of water-polluting industry

and diminish tourism revenues directly.

Amicus Citizens’ Action for a Safe Environment is a

Not for Profit Oklahoma corporation. Its members from

Oklahoma, Arkansas, and other states, enjoy the pristine

beauty and recreational and therapeutic qualities which

are afforded select waters by the Oklahoma

Nondegradation Water Quality Standard. If this discharge

into the Illinois is permitted, CASE members’ health

would be adversely affected by Fayetteville’s effluent,

which is, in solution, a liquid waste, a pollutant.

Amicus Save the Lower Illinois River is an Oklahoma

Not for Profit corporation. Its members include businesses

and individuals in the lower reach of the Illinois below

Lake Tenkiller Ferry, and which also derive economic

livelihood from the lake area. Its members would suffer

economic harm if the decision below is not upheld,

because area tourism is directly dependent upon the

quality of Lake Tenkiller’s water, which is fed by the

Illinois River. If the 10th Circuit decision were set aside,

recently-documented preliminary eutrophication in Lake

Tenkiller would accelerate.

Amicus Calcasieu League for Environmental Action

Now is a not for profit Louisiana organization representing

500 individual members who share a common concern for

the sustension of functional ecosystems and preservation

of clean water for human and nonhuman consumption. A

reversal would negatively impact downstream states’ ability

to foster and promote wildlife for enjoyment by CLEAN’s

members.

SUMMARY OF ARGUMENT

The Tenth Circuit properly ruled that E.P.A. abused

its discretion in granting the Fayetteville permit. The

views of Petitioners cannot be adopted without violating

the congressional goals and policies of the Clean Water

Act. Applying dounstream states standards to upstream

state sources meets the goals and statutory language of the

Clean Water Act. Once a state water quality standard is

approved, E.P.A. may not redefine the state’s goals.

Reversal of the Tenth Circuit Decision would lead to

continued degradation of the Illinois River and Lake

Tenkiller. The Illinois is a candidate for inclusion in the

National Wild and Scenic Rivers Program, and is already

an Oklahoma-designated Scenic River. The City of

Fayetteville should continue its historical discharge of all

effluent into the White River. The Supreme Court should

not disturb the decision of the Court of Appeals.

ARGUMENT

I. UPHOLDING THE TENTH CIRCUIT IS THE ONLY

DECISION WHICH CAN BE RENDERED CONSISTENT

WITH THE CONGRESSIONAL GOALS & POLICIES OF

THE CLEAN WATER ACT. A CONTRARY DECISION

WOULD ERODE THE MEANING AND INTENT OF

THE CLEAN WATER ACT.

This Court must rule consistent with the goals and

policies of the Clean Water Act, which is to restore and

maintain the chemical, physical and biological integrity of

the Nation’s waters.’ A decision compromising this goal

cannot be rendered within the NPDES permit system.

Congress recognizes the primary responsibilities of the

! 33 USC 1251.

states to prevent, reduce and eliminate pollution.? The

Act does not authorize states or the EPA to create,

increase nor perpetuate interstate pollution.

The regulatory framework of the permit issuance

process clarifies the Court’s appropriate role below: The

Court may review additional material to explain the basis

of the agency’s action and the factors the agency

considered.*

The Clean Water Act provides a_ two-phase

involvement of downstream states: certification and

licensing. The decision in Quellette, which forms the

foundation of the City of Fayetteville’s appeal, is not

determinative in this case, because it dealt with 33 U.S.C.

1342 licensing, not 33 U.S.C.1341(a)(2) certification. Both

Oklahoma and E.P.A. agree that if imposing conditions

cannot insure compliance with downstream state standards,

the administering agency (in this instance E.P.A.) shall not

issue such license or permit.

As a prerequisite to certification for permit

2 33 USC 1251(b).

> Churchwell v. Robertson, 748 F.Supp. 768 (D.Idaho 1990) citing

Friends of the Earth v. Hintz, 800 F.2d [822] at 829 [(9th Cir. 19860};

Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir. 1980).

Moreover, the Court may consider, particularly in highly technical

areas, Substantive evidence going to the merits of the agency’s action

where such evidence is necessary as background to determine the

sufficiency of the agency’s consideration. Asarco, id.

* International Paper Co. v. Quelette, 479 U.S. 481 (1986). The

Court in Quellette was silent as to certification, addressing instead the

second of the two-phase process of permit authorization, and the

discretionary level. Distinguish 33 USC 1341(a)(2) is not the

discretionary phase-- achieving consent of the downstream state at 33

USC 1341(a)(2) is mandatory. See also, E.P.A. Brief, Footnote 22,

page 18.

issuance, Fayetteville was to provide the EPA

Administrator with certification that its discharge would

comply with, inter alia, the water quality-related effluent

limitation standards, water quality standards and

implementation standards of the Clean Water Act.

Oklahoma had in place a New Point Source ban and

policy opposing all degradation of the Oklahoma-

designated Scenic Illinois River, beginning just 39 miles

below the municipality’s Split Flow Facility.

The Tenth Circuit set aside the EPA’s

determination that imposing conditions could assure

compliance with Oklahoma Water Quality Standards as

measured at the state border. EPA’s decision was

unsupported by substantial evidence.° EPA ruled that the

permit as granted, would not degrade the Illinois because

effluents were reduced to undetectable limits. The Tenth

‘Circuit noted, as all parties agree, that 25% of the

unacceptable bioavailable nutrients would enter the

Scenic-designated portion of the Illinois River. Clearly,

the undetectable standard, if necessary in light of the

statute’s plain language, was violated and the Tenth Circuit

properly so ruled.’

A second aspect of this was that detectability is

measured in light of "current condition" of the Illinois

River. EPA seems to espouse that nothing in the

nondegradation policy states when the Illinois should not

5 33 USC 1341(a).

© Quivira Mining Company v. U.S. Environmental Protection

Agency, 765 F.2d 126, (10th Cir. 1985).

7 Oklahoma in its Brief before E.P.A. defined degradation as any

detectable increase in wastes. Distinguish, there is a 6.1 million gallon

per day detectable increase in wastes, offset only by such evaporation

aS may occur prior to reaching the scenic-designated portion.

7

be degraded. Since EPA has not forced other Arkansas

cities to tool-up to appropriate technology, this effluent

will blend with existing Arkansas effluent. Comparing this

facility’s effluent with that of Arkansas’s other five cities

dumping into the Illinois, EPA apparently concluded that

Fayetteville doesn’t look so bad. Just because there are

existing permits on the Illinois which affect the water more

adversely due to use of outmoded technology, does not

justify violating the ban on new sources.

A. APPLYING DOWNSTREAM STATE STANDARDS

TO UPSTREAM STATE SOURCES MEETS THE

GOALS AND STATUTORY LANGUAGE OF THE

CLEAN WATER ACT.

Both Oklahoma and EPA agree that EPA correctly

mandatorily applied the Oklahoma Water Quality

Standards for the Illinois River at the state line.” The

question is whether EPA must defer interpretation to the

Administrator of an EPA-approved State Implementation

Plan. If not, must EPA interpret Oklahoma Water Quality

Standards according to the plain meaning of the

regulations?” And if not, may EPA interpret the

* 33 U.S.C. 1341(a)(2) states, in relevant part: [The permitting

agency] based upon the recommendations of such State, the

Administrator, and upon any additional evidence, if any, presented to

the agency at the hearing, shall condition such license or permit in

such manner as may be necessary to insure compliance with applicable

water quality requirements. If the imposition of conditions cannot

insure such compliance such agency shall not issue such license or

permit. (emphasis added.)

9 It did not. "Undetectable” degradation is not equivalent to

“nondegradation.” The former is a function of technological limit on

analysis, based upon dilution (which is not a Beneficial Use). The

latter is a measure of river ecosystem functionality, which distinguishes

8

Oklahoma Water Quality Standard such that the result

violates the language and intent of the Oklahoma

Nondegradation Policy and the Clean Water Act?’® If

any of these queries cannot be answered affirmatively,

then the Appellee must prevail.

The EPA in its Brief at page 6 omits the most

crucial language of the Clean Water Act applicable to this

proceeding. True, the EPA may condition such permit

...aS...necessary to insure compliance with applicable water

quality requirements. But [if] the imposition of conditions

cannot insure such compliance such agency shall not issue

such license or permit.'!

Downstream states have a voice in upstream

activities affecting their water quality within the ambit of

the Clean Water Act. In United States v. Marathon

Development Corp., 867 F.2d 96, 99-100 (1st Cir. 1990),

the Court stated:

The ability of states to enforce their own

more stringent water quality standards by

denying certification for a .. permit is

consistent with the legislative purpose and

history of the Clean Water Act. Congress

declared its policy ‘to recognize, preserve,

and protect the primary responsibilities and

rights of States to prevent, reduce, and

return water quality from ambient water quality, comparing the quality

of each independently.

10 It may not. The “undetectable” standard was not met, as

evidenced by the admission that 25% of bioavailable nutrients from

the facility would cross into the Scenic-designated portion of the river.

11 33 USC 1341(a)(2).

eliminate pollution.’ 33 USC. Sec.

125i(b).'?

B. ONCE A STATE WATER QUALITY STANDARD IS

APPROVED BY EPA, EPA MAY NOT REDEFINE THE

STATE’S GOALS.

Arkansas did not have an National Pollution

Elimination System permit program in place when the

Fayetteville permit was sought, thus the Fayetteville

permit application was administered thru EPA. The

structure of State-State conflict resolution is inapplicable

where EPA exercises this default jurisdiction, because EPA

administers the program where there is no state program

in place. Under the EPA default jurisdiction provisions,

EPA does not enjoy an arbiter’s veto power under the

Clean Water Act. Rather, Oklahoma (as an affected

State) is afforded the historical judicial review process

which has existed since 1948.

The Administrator is required by 33 USC 1251 et

seq. to include more stringent state limitations necessary

to meet state water quality standards, and lacks authority

to set aside or modify those limitations in permit

proceedings.'*

te "The legislative history of section 401 of the Act

("Certification") confirms that Congress intended to give states [a

voice} over the grant of federal permit authority for activities

potentially affecting a state’s water quality.” /d, 867 F.2d 101.

Additionally, the Court held that allowing states to impose, in the

context of a federal law, their own more stringent environmental

standards is not unique and has never been held to be irrational or

unconstitutional.

'* In Re Bethichem Steel Corporation, (GCO #58, March 29,

1977).

10

The state of Oklahoma on three occasions

submitted its nondegradation policy and beneficial use

criteria for EPA interpretation, modification or rejection.

In 1982, in 1985 and in 1988, EPA accepted the Oklahoma

Standard without interpretation or modification." By

doing so, the Oklahoma Water Quality Standard

14 EPA is free to approve or disapprove state water quality

standards without judicial review. Westvaco Corp. v. US E.P.A, 899

F.2d 1383 (4th Cir. 1990). But once standards have been

implemented by the State, EPA no longer has interpretive capability.

33 USC 1313 distinguishes interstate from intrastate Water Quality

Standards, and provides in relevant part:

The...State water pollution control agency of such state shall

from time to time (but at least once each three year period

..) hold public hearings for the purpose of reviewing

applicable water quality standards and as appropriate,

modifying and adopting standards. Results of such review

shall be made available to the Administrator.

(c)(2)(A) Whenever :he State revises or adopts a new

standard, such revised or new standard shall

be submitted to the Administrator. Such

revised or new water quality standard shall

consist of the designated uses of the

navigable waiers involved and the water

quality criteria for such waters based upon

such uses. Such standards shall be such as

to protect the public health or welfare,

enhance the quality of water and serve the

purposes of this Act. Such standards shall

be established taking into consideration

their use and value for public water supplies,

propagation of fish and wildlife, recreational

purposes, and agricultural, industrial and

other purposes, and also taking into

consideration their use and value for

navigation.

1]

supplanted federal interpretation.’* EPA’s role at 33

USC 1341(a)(2) becomes one of iden’ifying the entities

which may be affected, affording a hearing, accepting

evidence, and conditioning the license as necessary to

comply with achievement of all applicable water quality

requirements.'® If an affected state determines that

discharges from a certain category of activity will not meet

State water quality requirements, the federal government

is prohibited from authorizing the activity by issuance of a

federal permit.’ To interpret 33 USC 1341 as affording

States sovereignty in certification but not in interpretation

of their standards is inconsistent and unsupported by the

language and caselaw at 33 USC 1341. States in both

roles will usually be affected states, and states in both roles

must interpret applicable state (not federal) statutes and

regulations. The EPA’s role was exercised in the review

process, whereby triennially it recommends interpretation

or modification or may even reject water quality

standards."* Upon approval, EPA’s window of

interpretive opportunity closed.

State water quality criterion substitute for the

1S 33 U.S.C. 1342(b); 33 U.S.C. 1370.

'© In Re Indianapolis Power & Light Co. (1975) U.S. E.P.A

NP t tat tecl

NPDES Permit Op. No. 14; Re United States Steel Corp. (1975) US.

E.P.A. NPDES Permit Op No. 17, the EPA was held to have an

obligation to include conditions more stringent than the EPA

minimums where required by the terms of state certification provided

pursuant to 33 U.S.C. 1341.

ld United States v. Marathon Development Corporation (1989,

CAI Mass) 867 F.2d 96.

'S Oklahoma’s nondegradation policy was never challenged by

EPA in the appropriate triennial review setting.

1?

Federal equivalent once the standards are approved by the

Secretary.'”

EPA’s supplantation of Oklahoma water quality

standard violates the decision in In re Bethlehem Steel

Corporation, (GCO #58, March 29, 1977).” In the case

before this Court. EPA lowered the water quality

standard for the Illinois by its interpretation. It did so

without affording notice and opportunity for the affected

state to exercise its prime role. This violated EPA’s regulation.”!

19 US vy. Rivera Torres, 656 F.Supp 251 (D. Puerto Rico 1987).

Torres involved a Section 404 permit.

20 “EPA has no authority to ignore State certification or to

determine whether limitations certified by the State are more stringent

than required to meet the requirements of State law. (See Decision

of General Counsel, No. 44).” /d., p. 338 This decision recognizes

that EPA has some latitude, to effectuate more stringent standards

where necessary to meet the timetable of 301(b)(1)(C), where it states:

In enacting Section 401, Congress clearly intended to give the

States an Opportunity to assure that federally-issued NPDES

permits contained limitations necessary to implement the

State’s water quality standards. There is no indication in the

Act, or in the legislative history, however, that Section 401

was intended to limit the authority and obligation of EPA to

independently assess the need for more stringent conditions

to meet the requirements of Section 301(b)(1)(C).

21_ EPA regulations provide that "in determining whether such

standards are attainable for any particular segment, the [permitting

agency] should take into consideration environmental, technological,

social, economic, and institutional factors.” 40 C.F.R. 130.17(c)(1).

EPA's regulations are more specific in regard to downgrading existing

water quality standards. Standards may be lowered only when the

State can demonstrate that one of three factual situations exists:

(i) The existing designated use is not attainable because of

natural background;

13

Here, EPA’s "undetectable" standard fails to include

factors to be considered and methodology to be used to

judge compliance with such a standard.” By any

definition, "detectable" is a more blurried standard than is

applied by Oklahoma to its own potential Point Sources

wishing to site on the Illinois. E.P.A. uses a subjective, not

objective, compliance standard. It invites years of

litigation over every conceivable aspect of detection.”

The Illinois at the Scenic boundary, still bears 25%

of Fayetteville’s bioavailable nutrients. Also, by

Petitioners’ own admission, phosphorous would not be

fully assimilated by the Illinois before reaching the

Oklahoma-designated Scenic reach. By determining that

this remaining 25% bioavailable nutrient load is

“undetectable,” the Administrative Law Judge on remand

ruled arbitrarily and capriciously.

(ii) The existing designated use is not attainable because of

irretrievable man-induced conditions; or

(iii) Application of effluent limitations for existing

sources ... would result in substantial and widespread

adverse economic and socia! impact.

*2 Champion International Corporation v. US EPA, 652 F.Supp.

1398 (DC WD NC, 1987).

3 Nondetectable by the Administrator, the affected state or the

source state? Objectively traceable or nonspecifically attributable?

Traceable but no longer a New Point Source? Ambient cumulative

or viewed in isolation from waste load synergistics? Nondetectable

in the static sense-- as measured only for certification? Nondetectable

in the dynamic sense-- as measured once per five years?

Nondetectable at every moment? Detectable by chemists? Detectable

by aquatic organisms? Detectable by affect on aquatic organisms, and

if so, how much causation is required?

14

II. REVERSAL OF THE TENTH CIRCUIT DECISION

WOULD LEAD TO CONTINUED DEGRADATION OF

THE WATER QUALITY OF THE ILLINOIS RIVER AND

LAKE TENKILLER.

Oklahoma’s NONDEGRADATION Criterion is distinct

from and unrelated to the "detectable" standard applied by

EPA. EPA in effect violated Oklahoma Water Quality

Standard by gauging the permit on detectability, because

the Oklahoma rule prohibits ALL new point sources on

the Illinois. Oklahoma cities and businesses absorb the

proponderance of the economic impact of its criterion.

Clearly the existence of a New Point Source has a

DETECTABLE and MEASURABLE affect on the quality of

Illinois River Water. One detectable modification to the

ecosystem is an increased flow volume of three million

gallons per day, of effluent. the EPA concedes that

phosphorous would not be completely assimilated by the

time it reaches the Scenic River boundary.” Petitioners’

Brief admits that nutrients in the effluent will not be

totally absorbed."*

A. THE ILLINOIS RIVER IS A CANDIDATE

FOR INCLUSION IN THE NATIONAL WILD AND

SCENIC RIVERS PROGRAM.

Under the Wild and Scenic Rivers Act, state-

designated Scenic Rivers are to be afforded agency

4 EPA Brief, page 9.

25 Petitioners’ Brief at page 6.

15

cooperation in their conservation.”

At its passage, the Illinois River was, and remains,

a candidate for potential inclusion under the National Wild

and Scenic Rivers Program.’’ In all planning for use of

water resources, consideration shall be given by all Federal

agencies involved to potential national scenic and

recreational river areas.” Candidate rivers, such as the

Illinois River, are to be afforded the cooperation of the

head of any agency administering a component of the

system, with appropriate State water pollution control

agencies for the purpose of eliminating or diminishing the

pollution of waters of the river.”’

B. THE ILLINOIS RIVER IS ALREADY AN

OKLAHOMA-DESIGNATED SCENIC RIVER.

26 16 U.S.C.1276(4) requires that "[i]n all planning for the use

and development of water and related land resources, consideration

shall be given by all Federal agencies involved to potential national

wild, scenic and recreational river areas, and all river basin and project

plan reports submitted to the Congress shall consider and discuss any

such potentials. The Secretary of the Interior and the Secretary of

Agriculture shall make specific studies and investigations to determine

which additional wild, scenic and recreational river areas within the

United States shall be evaluated in planning reports by all Federal

agencies as potential alternative uses of the water and related land

resources involved.”

27 16 USC 1271-1287, particularly 16 USC 1276(a)(40).

8 16 USC 1276(d).

29 16 U.S.C. 1283(c) Under the 1986 Amendments, the EPA

Administrator assumed water quality responsibilities theretofore

mandated to the Secretary of the Interior where candidate rivers are

involved. The average hourly discharge is one quarter mitlion gallons

per hour.

16 ,

Under 1982 Regulations promuigated by the

Oklahoma Water Resources Board, no degradation is

allowed in high quality waters which constitute an

outstanding resource or in waters of exceptional

recreational or ecological significance.” This prohibition

applies to the Illinois, an Appendix A River.*! No

degradation interfering with or injuring instream water

uses is allowable.” In these waters, the quality can only

be protected, maintained and improved for the benefit of

all the citizens.** The coliform bacteria from the

Fayetteville facility, even under ideal conditions, is an

obvious injury to instream use, which for the Illinois

(unlike Arkansas’ White River) includes Primary Body

Contact Recreation.“ Aesthetics is a key component of

scenic river appeal. Floating materials, suspended

substances producing objectionable color and turbidity,

noxious Odors and tastes, and material that settle to form

30 Oklahoma Water Resources Board Rules & Regulations,

SECTION 3, Petitioner’s App., page 28.

31 Oklahoma Water Resources Board Rules and Regulations,

Appendix A, Petitioner’s App. p. 54.

32 Oklahoma Water Resources Board Rules & Regulations, 1982,

Section 3, Petitioners’ App. p. 27.

3 id.

44 Oklahoma Water Resources Board Rules and Regulations,

Section 4.7, Petitioners’ Appendix p. 42. In 1984, 67,204 float trips

were taken with commercial canoe and rafting outfitters on the scenic-

designated portion of the Illinois. About double that many

commercial recreational visitors floated. This excludes all recreational

users who did not rent canoes as a part of the river experience--

fishing parties, campers, swimmers, birdwatchers, volleyball

tournament-goers, canoe-racers, innertube floaters, etc.

17

objectionable deposits and interfere with aquatic life are

prohibited.*

The 10th Circuit properly took into consideration

the Scenic River designation for the Illinois River,

measuring its 1970 designation date as the operative

benchmark for determining whether nondegradation was

being achieved. The Tenth Circuit held that where a

proposed source would discharge effluents that would

contribute to conditions currently constituting a violation

of applicable water quality standards, such proposed

source may not be permitted.* E.P.A. abused its

35 Oklahoma Water Resources Board Rules and Regulations,

Section 4.10-4.10(e). Petitioners’ Appendix, page 43-45. See also,

Flint_Ridge Development Corp. _v. Scenic Rivers Association _of

Oklahoma, et al., 426 U.S. 776. The case below concerned impairment

of the aquatic food web by siltation which inhibits the reproductive

cycle of the web-spinning caddis fly on the Illinois River. The caddis

fly is a key component of the food supply of smaii fish. When

turbidity affects temperature and caddis fly eggs are clogged in silt,

inadequate darter and minnow populations are sustained, and

predator fish populations decline proportionally. This affects fishing.

Fishing affects camping and resort use. The human economy suffers.

Resort owners supplement with agriculture. Trees are cleared,

resulting in an increase in ambient instream water temperature.

Runoff increases. Erosion increases. Remaining high quality waters

on this continent are few and far between.

The decline in viable, intact, biodiverse stream ecosystems

necessitates a shift in perception. Rather than measurable ambient

chemical modification, (especially in light of the nascence of scientific

Stream ecology and the individualistic biotic characteristics of each

Stream), the most functional assurance that this river remains viable

and unmodified for recreational and scientific enjoyment is a prion

elimination of New Point Sources and progressive strengthening of

Effluent Limitation Standards from historical discharges.

% Oklahoma vy. E.P.A., 98 F.2d 595, 620 (10th Cir. 1990); 31

ERC (BNA) 1741.

18

agency discretion: Oklahoma’s State Water Quality

Standard was uninterpretable, once approved by EPA;

Oklahoma’s State Implementation Plan had _ been

approved by EPA as to both its goal and method of

achievement; The downstream state’s denial of

certification was entitled to unequivocal mandatory

deference afforded by 33 USC 1341(a)(2). The Court

properly reversed EPA’s misapplication of

"nondegradation" to mean "undetectable degradation."*’

Ill. THE CITY OF FAYETTEVILLE SHOULD CONTINUE

ITS HISTORICAL DISCHARGE OF ALL EFFLUENT

INTO THE WHITE RIVER.

Petitioner admits that nutrients and phosphorus

loading would impact the Scenic-designated portion of the

Illinois River.™

37 Undetectability is achieved thru dilution, but still constitutes

a net assimilation burden to the River. Petitioners admit to the

affirmative phosphate and nutrient burden, and never deny the

diminution in affirmative water quality improvement historically

appropriated for beneficial use instream by recreationists and aquatic

organisms alike.

38 EPA Brief, p. 9 and Petitioner Brief, p. 6. The recent study,

conducted ancillary to the EPA "reopener" clause in the permit (as yet

unreleased in final form), shows that by reason of the diminished

quality of water flowing into Lake Tenkiller Ferry, eutrophication is

in fact occurring as far downstream as below the scenic-designated

portion of the Illinois, resulting in such oxygen depiction to the lake

that, if not mitigated by a fully-integrated, stringent management

control strategy upgrading all existing contributors (including Point

and Nonpoint Sources), Lake Tenkiller would soon be unable to

support existing aquatic life. Historical data supporting this result

predates the additional 6.1 million gallon per day load to the River

19

Fayetteville should use its historical receiving waters

rather than moving its pipe to the headwaters of the

Scenic Illinois River. The State of Arkansas had never

seen fit to implement White River water quality

protections, and Arkansas (until more recently) was in

default in administering a state implementation plan.

Additionally, Fayetteville has a vested historical priority to

a National Pollution Discharge Elimination System Permit

on the White River.

The question of detectable impact on the Illinois

assumes a threshold justification: Why seek a permit

outside the historical receiving waters? Even including

Fayetteville’s old facility, which operated under lower

Effluent Limitation Standards, the White River Water

Quality Standards did not restrict new sources and did not

include highest quality beneficial uses.

Arkansas would lack inherent motivation to operate

the facility in a manner preserving downstream values if

the decision were overturned, but would have inherent

motivation to operate the facility in a manner preserving

downstream values if the decision were sustained. The

Clean Water Act can only be as effective as the good faith

of the permit holders. Oklahoma is so concerned about

preserving its few legislated scenic streams that it has

enunciated a policy which prohibits any new pollution

permits into their waters. Because Fayetteville is largely

within the White River Basin, and because The White

River remains in Arkansas for its entirety, the city has a

greater incentive to preserve water quality, if its discharge

is into in that river.

occasioned by the Fayetteville facility.

20

CONCLUSION

In light of Congress’ purpose in crafting the

legislation, the decision of the 10th Circuit must be

sustained.

This decision does not govern where the upstream

state administers the Clean Water Act. Only those eleven

states which have defaulted in implementing a State plan

fall outside the arbiter’s power of the Environmental

Protection Agency. In all other instances, the EPA retains

final authority to grant or deny the permit and enjoys full

agency deference in complying with approved state

standards. Its decision is binding and reviewable under the

"abuse of discretion" test.’ EPA may modify or deny

the license, but the clear language of the Clean Water Act

is that the affected downstream state does apply its water

quality requirements to discharges affecting the quality of

its water, to certify or not certify the proposed activity. It

applies narrowly. It binds the EPA to an objective role

where functioning as both the permitting agency and the

oversight authority, where the state in which the Source

originates has defaulted to participate by enacting a State

Implementation Plan. The policy basis of Quellette,

(prevention of overriding the permit requirements and

policy choices of the Source State), is not challenged by

the Tenth Circuit, since here, the Source State had no

policy in place and since Quellette addresses 33 U.S.C.

1342, not 33 U.S.C. 1341.”

This decision does not govern instances where the

cownstream state standard is less stringent than an

evenhandedly-applied outright prohibition on New Point

39 5 U.S.C. 706(2)(A).

Id.

21

Sources for protection of a treasured river. Only in

instances where the downstream state deems protection of

a special waterway of such great importance that it is in

good faith willing to permanently forego alternative

economic development, would upstream sources which

degrade stream quality be called into question. As stated

in the Amici of Municipal Sewerage Agencies, et al.,

"Since a state has a strong stake in the ability of instate

sources such as municipal treatment facilities to serve and

support its residents, a state agency has an incentive not to

set water quality standards that are impossible or

economically infeasible for such sources."*' In U.S. Steel

Corp. v. Trane, 556 F.2d 822, 830 (7th Cir 1977) the

Preemption Doctrine is placed in the context of the goal

sought to be accomplished by its exercise in the first

instance: "Congress thus has chosen not to preempt state

regulation when the state has decided to force its industry

to create new and more effective pollution-control

technology." The cost externalization of which the Court

was concerned in Quellette is lacking under the facts

before the Court in this instance: Oklahoma has

completely foregone all municipal development on the

Illinois River’s Scenic stretch, for the purpose of

preserving its recreational and biodiversity values.**

If this Court so elects, this decision can be limited

to apply only as to a state-designated Scenic Stream which

is a candidate for inclusion in the National Wild and

Scenic Rivers program. Contrary to the chaos envisioned

by Amici Metropolitan Sewerage Agencies, et al., the

41 Brief Amici Curiae of Municipal Sewerage Agencies, et al.,

page 15.

2 Two species of endangered bats and an endangered darter are

endemic to the River habitat.

22

Illinois River is a river which the state has elected to

afford special status due to its unique, high quality

recreational opportunities and quantified biological

diversity. This decision does not, as argued by Amici

Metropolitan Sewerage Agencies, et al., block permit

renewals of historical dischargers on the Illinois which

continue to upgrade their facilities utilizing the best

available technology. At present some 11.6 million gallons

per day of Arkansas effluent is being discharged into the

Arkansas reach of the Illinois and its tributary streams.**

This decision applies only to New Sources seeking

authorization to discharge which affects a designated state

scenic river and National Wild and Scenic Rivers

candidate, where the applicant’s historical discharge point

is not subject to high water quality standards, and where

no compelling justification is given for protecting the Non-

candidate, Non-scenic river, over an outstanding national

resource waterway.

Because the Tenth Circuit properly interpreted the

Clean Water Act as favoring clean water, in agreement

with the prima facie language of the Clean Water Act and

Congress’ policy, and becuase this Honorable Court is also

bound by the language and policy of the Clean Water Act,

the decision below must be upheld.

43 These include Rogers, Arkansas, Prairie Grove, Arkansas,

Springdale, Arkansas, Siloam Springs, Arkansas, Lincoln, Arkansas,

Gentry, Arkansas, and Fayetteville, Arkansas, the latter of which is the

only New Point Source. Fayetteville is the only nonhistorical

discharger predating the Oklahoma Water Quality Standard. Several

of these have significantly upgraded in conformance with the

nonprohibitory nature of the Oklahoma nondegradation policy. One

Oklahoma NPDES permit exists on the entire Upper Illinois, owned

by the City of Tahlequah, a historical discharger which like Prairie

Grove, Springdale, and Siloam Springs is upgrading to Best Available

Technology. '

23