Petition for Writ of Certiorari — Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co.

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FICE OF THE CLERK

Fs,

IN THE

Supreme Court of the United States

October Term, 1993

ATLANTIC STATES LEGAL FOUNDATION, INC.,

Petitioner,

vs.

EASTMAN KODAK COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CHARLES M. TEBBUTT

Counsel of Record

ALLEN, LIPPES & SHONN

1260 Delaware Avenue

Buffalo, New York 14209

(716) 884-4800

Attorneys for Petitioner

Of Counsel:

MICHAEL D. AXLINi:

Western Environmenial Law Center, Inc.

44 West Broadway, Suite 200

Eugene, Oregon 97401

Batavia Times Publishing Co.

Batavia, N.Y. (71@ 344-2000

QUESTIONS PRESENTED FOR REVIEW

Ai Does the Clean Water Act

prohibit the discharge of pollutants not

listed in a discharger's permit?

ee Is a state permit condition

prohibiting the disci:arge of pollutants

not specifically authorized in the

discharger's permit enforceable in a

Clean Water Act citizen suit?

Atlantic States Legal Foundation,

Inc. is a not-for-profit corporation with

no parents or subsidiaries.

TABLE OF CONTENTS

Question Presented For Review....

Corporate Disclosure Statement...

maa OL AUCHOPLELOS. «.. 5 eke kk

Jurisdiction of the United States

NT i

Statutes and Regulations Involved

Statement of the Case......ccccce

Reasons for Granting the Writ....

Point I. The decision below

directly contradicts the plain

language and intent of the Clean

WT PU CWE es OU Pees 6 on eck ceeee

A. The Statutory Scheme...

1 fe The CWA and

a a

r The CWA and

UPR cas ccce

a. Section 301 and

reasonable further

progress towards

eliminating the

discharge of all

pollutants........

iii

Page

b. Section 402 and

limitations on

issuing permits... 23

Point II. The Second Circuit's

decision conflicts in principle

with this Court's prior decisions

involving the Clean Water

ASE vn ccsccessscestrvenebeeseseccee 32

Point III. The Second Circuit's

decision conflicts with other

district court decisions and EPA's

own interpretation of the

pa Oe Pr ee rer eee 38

Point IV. The issues presented

impact all waters of the United

States, potentially all dischargers

of pollutants and all agencies

charged with administering the

Clean Water Act, including states'

rights and responsibilities of

administering the

ROG s 664 06 hb KO 86 A KOREN OOS 45

ee ae ee ee 48

Appendix:

Opinion of the United States

Court of Appeals for the Second

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Decision and Order of the United

States District Court for the

Western District of New

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Federal Regulations

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TABLE OF AUTHORITIES

Page

Atlantic States Legal Foundation,

Inc. v. Reynolds Metals Co., 31

E.R.C. (BNA) 1156 (N.D.N.Y.

LOR 6 WE eR CERO KAMEN Se COCO 40,41

Chemical Mfrs. Ass'n v. Natural

Resources Defense Council, Inc.,

1G Diwx SaOr .. CAPSS ss eee vk eeseds 19,20

Consumer Products Safety Commission

v. GTE Sylvania, Inc., 447 U.S. 102

CRT 25's a bP tCR CCE ROHN CeCe REDS 48

E.I. du Pont de Nemours and Co. v.

TVRIs GSO UsSe SOS Caer riecvers 9.33,

35, 36,

Environmental Defense Fund, Inc. v.

Costle, 636 F.2d 1229 (D.C. Cir.

DE wats bho daw Ss 6 cate eeeata hae 20

Environmental Protection Agency v.

California ex rel. State Water

Resources Control Board, 426 U.S.

Pp) fet 3 PRR eS er eee ee 13,

33,34,

McClellan Ecological Seepage

Situation (MESS) v. Weinberger, 707

F.Supp. t5Gz (8.0. COs. T98G).... 43

Milwaukee v. Illinois, 451 U.S. 304

bo) SE ep eee 32

NRDC v. Costle, 568 F.2d 1369 (D.C.

Cale Set Phebe 6-600 6 6460 CTERCETECR 14,16,

NRDC v. Gorsuch, No. 72-2153

3 fe ie. | Tb | ORS GC 4 hee 20

NRDC v. Reilly, 22 Envtl. L. Rep.

(Envtl. L. Inst.) 20,108

(BetieGre NSO AE Cate cetenseneucevess 16

NRDC v. Ruckelshaus, No. 73-2153

Sits. <a SE oak nae ee oe bo 600 0.0m 20

NRDC v. Train, 6 Envtl. L. Rep.

(Envtl. L. Inst.) 20,588 (D.D.C.

1976), modified sub nom.......... 20

Sierra Club v. Union Oil of

California, 813 F.2d 1480 (9th Cir.

Ra ha 6 teen oe akad ob eae © 66a 44

Sparacino v. Anadromous, Inc., No.

89-6417-E (D. Or. Nov. 8,

SUOEN SAV aoe ehes Ses Owe CAD EEbe aCe Ce 40

United States v. Ketchikan Pulp

Co., No. A92-587 (D. Alaska Oct. 5,

SPORE CUE C 646404 en dEd Ss ONO ob Oho 38,

United States v. Tennessee Gas

Pipeline Co., No. 91-1428 (W.D. La.

Gas Wa Be bs cede wacko ee ones 39,47

vii

Federal Statutes

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33 U.S.C. 1311(b) (1) (B)......---.. 19

33 U.S.C. 1311 (b) (2)... ee eee eee 21

33 U.S.C. 1311 (b) (2) (A).....----e, 27

33 U.S.C. 1311 (b) (2) (C)..- 22 o ee 21

33 U.S.C. 1311 (b) (2) (D)..-- 22 ee 21

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27 !

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33 U.S.C. 1365(D) .. cc cccccccscces 6

33 U.S.C. JAGSIT) cccccovcecsesceeuas 6,34

33 U.8.C. RFPOCR 6 ee hee Howe eC Cees 2,45

42 U.S.C. L1IOZS(C) ..ccccccccsccces 6

viii

Regulations

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GO Cis Too che wscvvcedevccsscseces 2

40 CPR. 228s alec cc cceeserecee 2

40 CuF eRe SESecccsccescevcsesecves 2

40 C.F.R. 123.1(g) (1) ...-----00ee 2

40 C.F.R. IZS.1(1) wc ccsvccevcccces 2

40 CruP.R. 1250212) (2) occ cccesvcece 2

40 C.F RR. 123.4290 oc cvcvcccccacccces 2

40 C.F.R. 123.3°123.66 (1993)... 13

40 C.F.R. 125.3(8) (2) (1993)... 27

40 C.F.R. 125.3(a) (2) (i) (B) (1993) .28

New York State Statutes

BY-EGl AECEGSO bly SEeSO Socceccce 3

es I eg 2ede%e

Miscellaneous

H.R. Rep. No. 92-911, 92nd Cong., 2d

SOGG« Bae. (iF 2b cvccccewevnvcecoes 37

2 W. RODGERS, JUR., ENVIRONMENTAL LAW: AIR AND

Waren, $ 4.30 at 443 (1986) ....ccce 37

JURISDICTION OF THE UNITED

STATES SUPREME COURT

The Atlantic States Legal

Foundation, Inc. ("Atlantic States")

brought this suit against Eastman Kodak

Company ("Kodak") in the Western District

of New York pursuant to 33 U.S.C §

1365(a). The district court entered

judgment against Atlantic States on

December 28, 1992.

Atlantic States appealed. The

Second Circuit Court of Appeals affirmed

on December 14, 1993. A petition for

rehearing, with suggestion for rehearing

in banc, was filed. The petition for

rehearing was denied on February 17,

1994.

The jurisdiction of this Court to

review the decision of the Second Circuit

arises under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutes involved in this case

are based primarily on 33 U.S.C. § 1251,

et. seq., and more specifically 33 U.S.C.

$$ 1251, 1311, 1332, 1314, 1342, 1362,

1365, and 13/0. The regulations involved

include 40 C.F.R. parts 122 and 123, and

more specifically, 40 C.F.R. Parts 122.4,

l22.41, 123.1(g) (1), 1l23-1(i) and (1) (2),

and 123.25. ‘The central New York statute

involved is NY-ECL § 1/-0815(3). The

relevant sections of the above statutes

and regulations are reprinted in the

Appendix to this petition. (A37/-A90).

STATEMENT OF THE CASE

Respondent Eastman Kodak Company

("Kodak") owns and operates an industrial

facility, known as Kodak Park, in

Rochester, New York. In the course of its

operations, Kodak discharges up to 30

million gallons per day of wastewater

into the Genesee River from Kodak Park

via its King's Landing wastewater

treatment plant.

Kodak holds a State Pollutant

Discharge Elimination System ("SPDES")

permit authorizing the discharge of

limited quantities of specific pollutants

into the Genesee River and Paddy Hill

Creek. The permit was issued to Kodak by

the New York State Department of

Environmental Conservation ("DEC"),

pursuant to 33 U.S.C. § 1342 and NY-ECL

Article 17, Title 8, with an effective

date of November 1, 1984.1

General Condition 1(b) of the permit

provides, in pertinent part, that "the

discharge of any pollutant not identified

and authorized .. . by this permit shall

constitute a violation of the terms and

conditions of this permit". (JA-64) .2

This condition is ndiitated by New York

law. NY-ECL § 17-0815(3). It is

undisputed that Kodak is discharging at

least 16 pollutants that are not

"identified and authorized" by Kodak's

permit.

1 Under the Clean Water Act and New York

law, SPDES permits may be issued for a period

not exceeding five years. The expiration

date of Kodak's SPDES permit was November l,

1989. (A-55). There is no dispute in the

present action, however, that the permit will

remain in effect until such time as the DEC

issues a renewal permit to Kodak. Kodak

applied for renewal in May, 1989. No renewal

permit has yet become effective.

2 References to "JA-#" are to the Joint

Appendix provided to the Second Circuit.

References to "A#" are to the Appendix to

this brief.

i ion , | |

Petitioner Atlantic States Legal

Foundation, Inc. ("Atlantic States")

filed this case on November 14, 1991,

alleging that Kodak is violating section

301(a) and section 402 of the Federal

Water Pollution Control Act (the "Clean

Water Act" or the "Act"), 33 U.S.C. §

1311(a) and § 1342, by discharging into

the Genesee River more than 300,000

pounds per year of toxic pollutants that

are not “identified and authorized” by

Kodak's SPDES permit.

The District Court has subject

matter jurisdiction pursuant to 33 U.S.C.

§ 1365(a), which authorizes citizens to

bring actions ("citizen suits") against

persons alleged to be in violation of "an

effluent standard or limitation" under

the Act. For purposes of section 1365(a),

the term “effluent standard or

limitation" is defined to include an

unlawful act under (1) section 1311l(a),

or (2) a violation of a permit or permit

condition issued under section 1342. 33

U.S.C. 1365(f). Before commencing this

action, Atlantic States fulfilled all

applicable notice requirements pursuant

Co 33 U.9.C.- S65 tb):

On August 21, 1992, Atlantic States

moved for partial summary judgment on

Kodak's liability for discharging 16

pollutants not authorized by its permit.

On September 2, 1992, Kodak cross-moved

for summary judgment. The motions were

argued before the District Court on

September 16, 1992. The District Court

denied Atlantic States’ motion, and

3 All 16 of these unauthorized pollutants

are designated as toxic chemicals under

Section 213(c) of the Emergency Planning and

Community Right-to-Know Act, 42 U.S.C.

11023(c). Atlantic States moved for partial

summary judgment on liability with respect to

these pollutants because there is no genuine

issue of material fact with respect to their

discharge by Kodak. (A8).

granted Kodak's motion, on December 28,

1992. (A3S) .

In dismissing the action, the

District Court held that Kodak's

discharges of pollutants not expressly

identified and authorized by its SPDES

permit do not constitute violations of

the Clean Water Act enforceable via a

citizen suit pursuant to 33 U.S.C. §

1365.

The Second Circuit affirmed the

District Court on December 14, 1993. The

Second Circuit decision expanded the

District Court ruling by holding that the

discharge of pollutants not listed ina

SPDES permit is not unlawful under the

Clean Water Act. (A3,9-10). In the

alternative, the Second Circuit also held

that a state permit condition prohibiting

the discharge of pollutants not

specifically authorized in the permit was

broader than the scope of the Clean Water

Act and thus unenforceable by a citizen-

plaintiff. (A3,15).

REASONS FOR GRANTING THE WRIT

The Second Circuit's opinion

fundamentally misconstrues the control

provisions of the Clean Water Act. The

vast majority of courts interpreting the

Clean Water Act have found that the Act

prohibits permittees from discharging

pollutants not authorized in their

permits. The Second Circuit, however,

held that, once a discharger has a permit

to discharge limited quantities of

specified pollutants, it is then free to

discharge any other pollutants at any

other levels it desires.

The Second Circuit's decision

directly contradicts the plain language

of the Clean Water Act, conflicts in

principle with this Court's decision in

” —_—e

E.I. du Pont de Nemours V. Train, and

other Supreme Court decisions, and

directly conflicts with other federal

district court decisions. The Second

Circuit's decision, if allowed to stand,

will profoundly and negatively affect not

only the administration of the Act by the

Environmental Protection Agency (EPA) and

state regulatory agencies, but also the

ability to reach the Act's clear goal of

elimination of the discharge of

pollutants into the nation's waters.

POINT I. The decision below directly

contradicts the plain language and intent

of the Clean Water Act.

As Congress has clearly stated, and

this Court has previously recognized, "as

is the national goal that the discharge

of.pollutants into the navigable waters

be eliminated by 1985." 33 U.S.C.

125l1(a) (1); E.I. du Pont de Nemours and

Co. v. Train, 430 U.S. 112, 116 (1977)

(emphasis added). This language remains

in the Clean Water Act today, even though

the Act was amended in 1987, two years

after the statutory goal of pollution

elimination had passed.

The Second Circuit's holding that

the discharge of pollutants not listed in

a permit is lawful could not more clearly

contradict the plain language of the

statute.

As the court held:

Atlantic States treats permits

as establishing limited

permission for the discharge of

identified pollutants and a

prohibition on the discharge of

unidentified pollutants.

Viewing the regulatory scheme

as a whole, however, it is

clear that the permit is

intended to identify and limit

the most harmful pollutants

while leaving the control of

the vast number of other

pollutants to disclosure

requirements.

(A9). This interpretation of the

"regulatory scheme" by the Second Circuit

ignores the plain meaning and intent of

the “statutory scheme". The statute does

not authorize the regulatory

interpretation inferred by the Second

Circult.

A. The statutory scheme

The beginning point of the Act's

Statutory scheme is section 30l(a). 33

U.S.C. § 1311l(a). Section 301 (a)

provides, in part: "Except as in

compliance with [various sections of the

Act], the discharge of any pollutant by

any person shall be unlawful." Id. One

of the exceptions to this blanket

prohibition on the discharge of any

pollutant is section 402, 33 U.S.c. §

1342, which provides, in part, that "the

Administrator may ...issue a permit for

the discharge of any pollutant, or

combination of pollutants,

notwithstanding section [30l(a)] ...." 33

U.S.C. § 1342(a) (1). Together, sections

30l(a) and 402 establish the essential

structure for regulating point sources of

pollution; no discharge of a pollutant is

allowed without a permit

\s explained more fully below,

nagress intentionally included the

entire universe of polluters and

pollutants within the scope of the Act

Only a universal approach could possibly

achieve “the national goal that the

discharge of pollutants into the

navigable waters be eliminated by 1985

»” 33 UVSC. F 323913 (8) (3).

Consistent with the universal]

approach to controlling water pollution,

section 303 of the Act requires states,

with federal approval and oversight, to

adopt comprehensive standards to assure

protection of water quality. 33 U.S.C. §

Beads In general, state standards may be

more but

Standards.

Standards

fa] Lng pe

Caiifornia

Control Bd

(1976).

The A

administer

“sf a d

of the federa]

not

minimum,

el Our ige ) >t ite >

\ [ . —

NPDES programs fol]

a, C cf eg 7 e

7 an Pe De . ; i $47? '@) .

impiementing this provision

require state permit

meet the

See

program.

less strict than federa]

Id. State water quality

rovide a "supplementary basis

NMUMEerFOUS point sources,

livi Wa] mpilance witt

mitations, may be further

prevent water quality from

Ww a eptable levels" EPA v.

ex rel State Water Resources

programs

requirements

40 C.F.R. §6

os The Clean Water Act and polluters

Section 30l(a) of the Act prohibits

"the discharge of any pollutant by any

person" in the absence of a permit. 33

U.S.C. § 1311(a) (emphasis added). The

language clearly and unambiguously

applies to all persons and all

pollutants.

Despite this universal language, in

1973 EPA adopted regulations that

excluded "minor" polluters from the NPDES

program. In Natural Resources Defense

Council v. Costle, 568 F.2d 1369, 1372

n.5 (D.C. Cir. 1977) the District of

Columbia Circuit struck down EPA's

attempt et regulatory exclusion because

"Congress intended the NPDES permit to be

the only means by which a discharger from

a point source may escape the total

prohibition of § 301l(a)." The court

rejected EPA's argument that a more

Se ee Wars ARR Seer Mer ett

ee EY i aes Beta

8 yA eee oe MOTT de Si

limited program, focused exclusively on

significant polluters, would be more

efficient and better serve the purposes

of the Act. The court noted that

Congress had considered and rejected such

efficiency arguments when it enacted

section 301(a):

Under the EPA's interpretation

the Administrator would have

broad discretion to exempt

large classes of point sources

from any and all requirements

of the [Act]. This is a result

that legislators did not

intend. Rather they stressed

that the [Act] was a tough law

that relied on explicit

mandates to a degree uncommon

in legislation of this type.

Id. at 1375; see also, id. at 1377-82

(discussing legislative history). The

Court then concluded:

In sum, we conclude that the

existence of uniform national

effluent limitations is not a

necessary precondition for

incorporating into the NPDES

program pollution from

agricultural, silvicultural,

and storm water runoff point

sources. The technological or

administrative infeasibility of

such limitations may result in

adjustment in the permit

programs ... but it does not

authorize the Administrator to

exclu the relevant point

source’ from the NPDES program. 4

IG. at. i379.

Subsequent to the NRDC v. Costle

opinion, EPA significantly broadened the

4 In Natural Resources Defense Council,

Inc. v. Reilly, 22 Envtl. L. Rep. (Envtl. L.

Inst.) 20,108 (D.D.C. 1991), the court also

found that an attempt by EPA to exclude

certain categories of polluters from the

requirements of § 30l(m), 33 U.S.C. §

131l(m), was contrary to the comprehensive

coverage required by Congress. The court

found:

[U]nder [EPA's] interpretation of the

statute, EPA avoids altogether the

requirement to promulgate guidelines by

selectively omitting industries from the

agency's § 301(m) plan -- industries

which the agency knows discharge toxic

and non-conventional pollutants. Surely

the Congress which passed § 301(m) out

of frustration with the agency's

sluggishness did not intend to confer

upon the agency discretion to limit the

scope and set the pace of effluent

guidelines preparation simply by

refraining from "identifying" known

polluters.

22 Envtl. L. Rep. at 2G, iil.

ee ene See a eee Me Wc By

IN SEE SRI GOAL SS RE he Rages PF

aE AL

ONS i Lar

scope of its NPDES program to apply to

all point source polluters. In some

cases EPA issued "general" or "area"

permits for efficiency reasons, but it

was able, when pressed, to sweep all

point source polluters into the program

in some form, as required by the Act.

y - The Clean Water Act and pollutants

Just as the Act regulates all

polluters, the Act also clearly and

unambiguously targets all pollutants.

Section 301 does not provide that the

discharge of "some" pollutants shall be

unlawful in the absence of a permit. It

says the discharge of "any" pollutant by

"any" person shall be unlawful in the

absence of a permit. 33 U.S.C. §

1311(a).

Section 402 of the Act authorizes

EPA to issue NPDES permits allowing

discharges of pollutants notwithstanding

section 301(a), but narrowly

circumscribes EPA's discretion in issuing

such permits. 33 U.S.C. § 1342(a). To

achieve the zero discharge goal of the

Act, the National Pollutant Discharge

Elimination System is intended, as its

name suggests, to eventually eliminate

the discharge of all pollutants. The

universal language in the opening

provisions of sections 301 and 402 is

consistent with the subsequent

substantive provisions of these sections,

which plainly envision progressively

tighter regulation of each and every

pollutant discharged to the nation's

waters.

a. Section 301 and reasonable further

progress towards eliminating the

discharge of all pollutants

Subsection (b) of section 301 of the

Act makes clear that Congress intended

EPA to do much more than simply hold the

line when regulating pollutants being

discharged to the nation's waters.

Congress expected EPA to achieve progress

towards specific goals which are

described in the Act as applying to all

"pollutants."

Subsection (b) divides discharges

into two categories: direct dischargers

and indirect dischargers. See 33 U.S.C.

$$ 1311(b) (1) (A), (b) (1) (B). Direct

dischargers are subject to two phases of

effluent limitations: (1) best

practicable control technology (BPT),

which was to be achieved by July 1, 1977,

and (2) more stringent best available

technology economically achievable (BAT),

1969. 33 U.S.C. 1311 (5) (1) (A),

(b) (2) (A). See generally, Chemical Mfrs.

which was to be achieved by March 31,

Ass'n v. Natural Resources Defense

Council, Inc., 470 U.S. 116, 118 (1984)

(describing two categories of

dischargers). Effluent from indirect

discharges directly to the nation's

waters must meet requirements similar to

those imposed on direct dischargers.

In addition to requiring the

progressive tightening of effluent limits

through phased in BPT and BAT standards,

section 301(b) (2) (A) requires that "there

shall be achieved ... reasonable further

) NRDC successfully sued EPA to force the

agency to apply to indirect dischargers

essentially the same standards that apply to

direct dischargers. See Natural Resources

Defense Council, Inc. v. Train, 6 Envtl. L.

Rep. (Envtl. L. Inst.) 20,588 (D.D.C. 1976),

modified sub nom., Natural Resources Defense

Council, Inc. v. Costle, 9 Envtl. L. Rep.

(Envtl. L. Inst.) 20,176 {D.0D.C. 3979),

modified sub nom., Natural Resources Defense

Council, Inc. v. Gorsuch, No. /2<-2153 (D.D.C.

Oct. 26, 1982), modified sub nom., Natural

Resources Defense Council, Inc. v.

Ruckelshaus, No. 73-2153 (Aug. 2, 1983). See

generally Chemical Mfrs. Ass'n v. Natural

Resources Defense Council, Inc., 470 U.S...

116, 119 n.4 (1985); Environmental Defense

Fund, Inc. v. Costle, 636 F.2d 1229, 1243-44

(D.C. Cir. 1980) (describing the legislative

history of the 1977 Act amendments).

progress toward the national goal of

eliminating the discharge of all

pollutants ...." 33 U.S.C. § 1311 (b) (2)

(emphasis added). Section 301 (b) (2) (C)

requires that effluent standards be

established for "all toxic pollutants

referred to in [a specific list compiled

by Congress]... in no case later than

March 31, 1989...", 33 U.S.C. §

1311(b) (2) (C), and section 301 (b) (2) (D)

requires that effluent standards be

established and applied for “all toxic

pollutants listed ... [in] section 307 of

this title which are not referred to in

Subparagraph (C) ... in no case later

than March 31, 1969 ...." 33 U.S.C. §

1311(b) (2) (D). Finally, section

301(b) (2) (F) contains a residual clause

providing that "for all pollutants [other

than specified exceptions] ... compliance

with effluent limitations in accordance

with subparagraph (A) of this paragraph

[shall be achieved] ... in no case later

than March 31, 1989." 33 U.S.C. §

1311(b) (2) (F).

For conventional pollutants,

dischargers are allowed to use

"innovative technology," so long as that

technology "moves toward the national

goal of eliminating the discharge of all

poliutaents. «<.s” 322 U.8.6. @ 2gc618). — im

section 301l(m), Congress created an

exception from the "reasonable further

progress" requirement for biochemical

oxygen demand (BOD) and pH in discharges

to deep waters of the territorial sea. 33

U.S.C. § 1311(m).© The fact that

Congress carved out a narrow exception

from the "reduce to zero" goal for these

two pollutants reinforces the conclusion

6 Dischargers may take advantage of this

exception only by meeting a set of strict

conditions.

that when Congress directed reasonable

further progress towards eliminating all

pollutants, it indeed meant all

pollutants, and expected EPA to adopt a

universal regulatory approach.

b. Section 402 and limitations on

issuing permits.

Section 402 is equally clear that a

permit may be granted only after EPA

permits writers apply the standards of

the Act to all pollutants discharged by a

permit applicant. Section 402 provides

that only to the extent that EPA issues

"a permit for the discharge of any

pollutant or combination of pollutants”

will section 301(a)'s prohibition on

discharges be altered. 33 U.S.C. §

1342(a) (1). Congress plainly anticipated

that its permit program would sweep in

all pollutants. It did not say permits

are required for the discharge of

"significant pollutants" or "toxic

a tl

pollutants." It said permits are

required for the discharge of "any

pollutant.” Id.

Congress also carefully

circumscribed EPA's power to issue

permits. Permits may be issued only:

upon condition that such

discharge will meet either (A)

all applicable requirements

under sections 1311, 1312,

1316, 1317, 1318, and 1343 of

this Act, or (B) prior to the

taking of necessary

implementing actions relating

to all such requirements, such

conditions as the Administrator

determines are necessary to

carry out the provisions of

this Act.

This provision expressly limits

EPA's authority to grant permits to two

circumstances. If EPA has adopted a

national effluent limitation for a

particular pollutant, EPA may grant

permission to an applicant to discharge

that pollutant only in conformity with

ie ee a ee ee ,.

the national standard. If a national

standard has not yet been adopted for a

particular pollutant, EPA may grant

permission to discharge the pollutant

only by applying the relevant standards

of the Act (BPCT or BAT) under conditions

the EPA Administrator has determined are

necessary to carry out the purposes of

the act. 33 U.S.C. § 1342(a) (1) (B).

Based upon the language and legislative

history of the Act, the Administrator has

chosen to meet this requirement by

instructing permit writers to exercise

Best Professional Judgment (BPJ) on a

permit-by-permit basis to reguiate

pollutants for which no national effluent

Standard has been adopted.

Section 402(a)‘'s order that EPA

carry out the provisi

re)

—

wanted immediate movement, on a

pollutant-by-pollutant basis, towards the

zero discharge goal of the Act. Congress

recognized that national effluent

standards for all industrial categories

and all pollutants could not be imposed

immediately because such standards

require time to develop, but Congress was

not willing to wait for the development

of those standards before regulating all

pollutants. Therefore, the Act forbids

EPA from issuing permits without first

applying national effluent limitations or

exercising BPJ for each and every

pollutant.

To insure that discharges meet "such

conditions as the Administrator

determines are necessary to carry out the

provisions of [the Act]," permit writers

were directed by the Administrator to

apply BPJ on a permit-by-permit basis.

——

33 U.S.C. § 1342(a) (1). The "provisions

of the Act" referred to in the section

include the fundamental requirement that

standards applied to pollutants achieve

"reasonable further progress" towards the

zero discharge goal of the Act. 33 U.S.C.

§ 1311 (b) (2) (A).?

Indeed, EPA has conceded that

"technology based treatment requirements

under Section 301(b) of the Act represent

the minimum level of control that must be

imposed in a permit issued under Section

402 of the Act." 40 C.F.R. § 125.3(a) (2)

(1993). These standards are imposed on a

q EPA itself has recognized that the

"reasonable further progress" requirement

applies to both national effluent standards

and standards imposed by permit writers

exercising BPJ on a case-by-case basis. See

40 C.F.R. § 122, Appendix A (1993) (requiring

that any permit issued after June 30, 1981,

to dischargers in particular industrial

categories "shall include effiuent

limitations and a compliance schedule to meet

the requirements of section 301(b) (2) (A),

(C), (D), (E), and (F) of Act, whether or not

applicable effluent limitations [sic]

guidelines have been promulgated").

pollutant specific basis in setting

national standards, and are plainly

intended to be applied on the same basis

in setting permit-specific standards.

EPA has also recognized: "For effluent

limitations established on a case-by-case

basis based on Best Professional Judgment

(BPJ) under Section 402 (a) (1) (B) of the

Act in a permit issued after February 4,

1987," this means that the “best control

technology currently available” standard

must be achieved through permit

conditions by no later than March 31,

1989. 40 C.F.R. § 125.3(a) (2) (i) (B)

(1993).

Thus, EPA has allowed permit writers

to simply accept existing levels of

discharges for many pollutants in lieu of

applying BPJ to determine standards for

each pollutant. EPA requires the

disclosure of only a limited set of

pollutants in NPDES permit applications,

and only a limited number of these

disclosed pollutants are regulated

through the exercise of BPJ.

Furthermore, EPA imposes no regulatory

controls on pollutants that are not among

those that must be disclosed in a NPDES

permit application. EPA's passive

acquiescence in accepting existing

discharge levels for so many pollutants

violates section 402's requirement that

EPA exercise BPJ to impose the "best

control technology currently available”

and achieve “reasonable further progress”

towards the Act's zero discharge goal for

all pollutants.

In addition to limiting EPA's power

to issue permits by requiring that all

permits be based either on national

effluent guidelines or on the application

of case-by-case standards through the

exercise of BPJ, Congress inserted an

anti-backsliding provision into section

402 of the Act which prohibits permit

writers from including less restrictive

requirements in subsequent permits. This

provision applies even if the national

standards adopted for a particular

pollutant subsequent to the issuance of a

permit based on BPJ for that pollutant

are less strict than the permit-specific

BPJ derived standards. 33 U.S.C. §

1342(0). This anti-backsliding provision

focuses on pollutants and is consistent

with the “reasonable further progress"

requirements of section 301.

The Act's permitting scheme has a

number of advantages from a regulatory

perspective. It consistently places the

burden on the polluter to disclose all

pollutants contained in its effluent and

to seek permission to discharge those

pollutants. By making every discharge of

a pollutant illegal unless specifically

authorized, the Act provides strong

inéentives for polluters to disclose and

seek permission to discharge every

pollutant coming from a facility, and to

comply with all permit conditions imposed

by EPA. The scheme eliminates the need

foc EPA to prove that dischargers are

violating water quality standards, which

allows EPA to focus on pollutants as they

come out of the pipe. 8 The Act grants

EPA a reasonable measure of discretion in

setting effluent limitations for

pollutants on a permit-by-permit basis

pending promulgation of national effluent

guidelines, so long as the case-by-case

8 One of the main thrusts of the 1972

amendments to the Act was to shift the

emphasis in the Act from the protection of

water quality standards to the regulation of

end-of-the-pipe discharges. This strategy

lead to the Act's ultimate zero-discharge

goal.

effluent limitations in a permit reflect

the exercise of BPJ, apply the

appropriate Act standards, and advance

the goals of the Act. If a permit holder

desires an exception from this regulatory

scheme, the Act defines a Limited number

of conditions under which exceptions may

be allowed, and places the burden on the

permit holder to demonstrate its

eligibility for the exception.

POINT II. The Second Circuit's decision

conflicts in principle with this Court's

prior decisions involving the Clean Water

Act.

This Court has repeatedly recognized

that the Clean Water Act makes the

discharge of any pollutant unlawful

except as authorized by a permit issued

pursuant to section 1342. See, e.g.,

Milwaukee v. Illinois, 451 U.S. 304, 310-

311 (1981) ("it is illegal for anyone to

discharge pollutants into the nation's

waters except pursuant to a permit");

Saher’ idea PE SARA

Beate LOW

Rai i hh Di, OS tty Peale

Environmental Protection Agency v.

California ex rel, State Water Resources

Control Board, 426 U.S. 200, 205 (1976)

("it-is unlawful for any person to

discharge a pollutant without obtaining a

permit and complying with its terms").

In E.I. du Pont de Nemours v. Train, 430

U.S. 112, 119 (1977), this Court again |

recognized that section 301(a) prohibits

the discharge of any pollutant unless in

compliance with certain enumerated

provisions of the Act, including section

402. The Court acknowledged that an

enforceable "effluent standard or

limitation,” as defined by section 505(f)

of the Act, can be created by either

section 301 or section 402. Id. at 133.

In Duront, this Court rejected

industry arguments that section 402

“provides the only Statutory authority

for the issuance of enforceable

limitations on the discharge of

pollutant by existing plants.” IG. at

The Court expressly noted that

"slthough this section authorizes the

mp. tion of limitations in individual

per ts, the ection itself does not

ijate either the Administrator or the

ate to use permits as the method of

pre ribina effluent limitation." Id. [In

her words, effluent limitations other

+ > + } \« . KY 5 te .

thal hose in permits (for example,

t 30l1(a)'s prohibition on

1 thorized discharges) may be enforced

; ) 4 + : Q

parately from permit conditions.

FPA v. California, ex rel. State

Water Resources Control Board, 426 U.S.

y. ; 197€ this Court noted:

An NPDES permit serves. to

transform generally applicable

J Section 505(f) of the Act, 33 U.S.C. §

13¢€ f), defines “effluent standard” as

including an unlawful act under § 301(a).

Sectic 30l1(a) makes an unpermitted discharge

_ er

wa + 2aQawi .

effluent limitations and other

standards -- including those

based on water quaiity -- into

the obligations (including a

timetable for compliance) of

the individual discharger

Id. at 205. The Second Circuit opinion

describes NPDES permits as having a

different purpose than that described by

this Court in EPA v. California. Rather

than viewing NPDES permits as a means of

transforming general standards into

tate, — oa

specific limits tailored to individual

discharges, the Second Circuit views

permits as shields against enforcement

actions based upon matters not covered by

}

a permit. But as explained in E.I.

DuPont de Nemours & Co. V.- Train, 430

U.S. 112 (1977), a permit must be issued

in compliance with the Act before it can

be raised as a shield in a citizen (or

: EPA) enforcement action. This Court

} specifically rejected the argument that

section 402(k) of the Act shielded

dischargers from prosecution for

violations of other sections of the Act:

Petitioners attach some

Significance to the fact that

compliance with a § 402 permit

is "deemed compliance, for

purposes of sections 309 [the

federal enforcement section]

and 505 [the citizen suit

section], with section[n]...

SUG. cen” @ 4Getm > tnae

provision plainly cannot allow

deviations from § 306 standards

in issuing the permit. For,

after standards of performance

are promulgated, the permit can

only be issued "upon condition

that such discharge will meet

all applicable requirements

under sectio[n] ... 306. ..." §

402(a) (1); and one of the

requirements of § 306 is that

no new source may operate in

violation of any standard of

performance. § 306(e). The

purpose of § 402(k) seems to be

to insulate permit holders from

changes in various regulations

during the period of a permit

and to relieve them of having

to litigate in an enforcement

action the question whether

their permits are sufficiently

strict.19

10 The Second Circuit quoted this passage

from DuPont but omitted the words "from

changes in regulations." The Second

Id. at 138, n.28. When permit writers

fail to "transform" general standards

into specific standards tailored to

individual pollutants, that failure

should not shield permit holders from

lawsuits for discharging pollutants not

addressed in their permit.11

Circuit's omission significantly broadened

section 402(k)'s shield. (A9).

11 The legislative history of the Act

verifies that the focus of § 402(k) is

insuring permit stability in the face of new

regulations adopted after permit issuance.

The purpose of the shield provision

identified in the 1972 House Report "is to

assure that the mere promulgation of any

effluent limitation or other limitation, a

standard, or a thermal discharge regulation,

by itself will not subject a person holding a

valid permit to prosecution." H.R. Rep. No.

92-911, 92nd Cong., 2d Sess. 128 (1972).

Thus, neither § 402(k) on its face, nor its

legislative history lend any credence to the

argument that it can be used to shield a

polluter from enforcement action for any

reason cther than the post permit issuance

promulgation of a new effluent limitation.

"So construed, Section 402(k) addresses not

the problem of how to handle pollutants

unknown at the time of permit issuance but

rather the problem of rules changes for

pollution problems that were known." 2 W.

RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER, §

Under the reasoning of DuPont, a

permit that is issued in violation of a

requirement in the Act for permit

issuance, such as the requirement in

section 402(a) (1) that the issuing agency

apply either national effluent

limitations or use BPJ to set BAT or BCT

standards for all pollutants, would not

be protected by the section 402(k)

shield.12

POINT III. The Second Circuit's decision

conflicts with other district court

decisions and EPA's own interpretation of

the Act.

In United States v. Ketchikan Pulp

Co., No. A92-587 (D. Alaska Oct. 5, 1993)

(forwarded as supplemental authority by

4.30 at 443 (1986).

12 See United States v. Ketchikan Pulp Co.,

No. A92-587 (D. Alaska Oct. 5, 1993)

(refusing to find implicit authorization in

NPDES permit to discharge pollutants that

probably would not have been expressly

permitted) (copy of decision sent to Second

Circuit on Oct. 13, 1993 but was not

discussed in opinion).

™

Atlantic States to the Second Circuit on

October 13, 1993), EPA brought an

enforcement action against a polluter

that was discharging pollutants not

listed in its permit. The District Court

held that section 402(k) did not insulate

the polluter from liability for the

discharge of pollutants which were not

covered in its permit. EPA brought a

Similar case in Louisiana. See United

States v. Tennessee Gas Pipeline Co., No.

91-1428 slip op. (W.D. La. Oct. 8, 1991)

(appended to Brief of Atlantic States to

the Second Circuit, -Al-).

At the very least, there may be

division within EPA itself of the proper

statutory interpretation. It appears

that the enforcement department within

the EPA is following the plain language

of the statute, while the permit writing

department is attempting to relieve

itself of the obligation to follow the

statute by creating improper blanket

exemptions for the discharge of

pollutants. Nowhere in the statute did

Congress create a special class of

pollutants. Congress could not have made

it clearer that the Act was intended to

cover all pollutants. See 33 U.S.C. §

13ll(a).

Other District Courts have held in

citizen enforcement actions that

discharges of pollutants not listed in a

permit are illegal. See Atlantic States

Legal Foundation, Inc. v. Reynolds Metals

Co., 31 ERC (BNA) 1156 (N.D.N.Y. 1990)

(Appended to Second Circuit Brief of

Atlantic States, -A32-); Sparacino v.

Anadromous, Inc., No. 89-6417-E (D. Or.

Nov. 8, 1990). (Appended to Second

Circuit Brief of Amicus Curiae, Natural

Resources Defense Council, et al.,

Appendix A).

In the Reynolds case, in which New

York State intervened to support Atlantic

States, the District Court explicitly

upheld citizens' rights to enforce

against a polluter that was discharging a

pollutant not listed in its permit. The

court found the discharge constituted a

violation of "the plain language of

Section 131ll(a)" of the Act and "the

cleat and unambiguous terms of [the]

permit" and was therefore enforceable as

a violation of a permit condition

pursuant to section 1365(f). Atlantic

States Legal Foundation v. Reynolds

Metals Co., 31 ERC at 1158. (-A34-35-).

Reynolds had the exact permit condition,

General Condition 1(b), that Kodak has in

this case. New York law requires that

condition. NY-ECL § 17-0815(3).

The Second Circuit used two

arguments to dismiss the fact that EPA

has prosecuted permit holders for

discharging pollutants not specifically

authorized in a permit. First, the

Second Circuit argued that the Ketchikan

and Tennessee Gas Pipeline cases involved

only failures to report, and not EPA

prosecutions for violating § 301 by

discharging unauthorized pollutants.

(All). On this score the Second Circuit

was flatly wrong. United States v.

Ketchikan Pulp Co., slip op., p.3.

Second, the Second Circuit heavily

relied upon a 1976 unpublished internal

Deputy Assistant Administrator

memorandum. (All) The opinions stated

in the 1976 memo, however, were

contradicted by EPA the following year.

In a 1977 proposed rulemaking, EPA

stated:

Due to a gap in coverage under

current NPDES regulations, the

discharge of pollutants in

addition to those limited in an

NPDES permit is not clearly

unlawful, even where those

pollutants have been indicated

in a discharger's permit

application. Such a reading of

EPA permits, policy, and

regulations is inconsistent

with statutory directive of the

Federal Water Pollution Control

Act (i.e., that the discharge

of any pollutant is unlawful

except in compliance with the

terms of an NPDES permit

(Section 301(a)), and has

resulted in permit enforcement

problems, particularly with

respect to toxic and hazardous

pollutants. The proposed

regulations would clarify that

the limitations incorporated

into an NPDES permit are the

sole authorizations to

discharge.

42 Fed. Reg. 65,209 (1977) (emphasis

added).

In McClellan Ecological Seepage

Situation v. Weinberger, 707 F.Supp.

1182, 1201 (E.D. Cal. 1988), that court

determined that the discharges referred

to but not specifically regulated ina

NPDES permit were under the regulatory

ambit of the permit and were not subject

to enforcement. Id.

At least one Circuit Court decision

has also recognized the scope of the

Act's general discharge prohibition on

pollutant discharges. In Sierra Club v.

Union Oil, 813 F.2d 1480 (9th Cir. 1987),

the Ninth Circuit held, "[t]he language

of the Act indicates that striving for

the utter abolition of pollution is an

acceptable approach for states to take.

Id. at 1487, n.6. The Ninth Circuit's

ruling is entirely consistent with the

plain language of the Act and directly

conflicts with the Second Circuit's

ruling in the present case. Furthermore,

even assuming, arguendo, that New York

State's legislative prohibition against

discharges not specified in a permit is

stricter than the federal law, it is

eee

certainly within the contemplation of the

Act. The Second Circuit has misread not

only the Act's goal of pollution

elimination but also states’ rights to

adopt standards and conditions consistent

with that goal. [e@ 33 U.S.C. § 1370.

POINT IV. The issues presented impact all

waters of the United States, potentially

all dischargers of pollutants and all

| agencies charged with administering the

| Clean Water Act, including states' rights

and responsibilities of administering the

Act.

The Second Circuit's opinion in this

case has profound implications for the

administration of the Clean Water Act.

Should the Second Circuit's decision

stand, the goal of pollution elimination

can never be realized. Every waterway in

the United States into which a polluter

discharges could potentially be impacted.

Kodak is certainly not the only

polluter discharging pollutants not

listed in its permit. The Kodak example

does, however, present an egregious

example of this statutorily contradictory

practice. Kodak is discharging as many

as 300,000 pounds per year of toxic

chemical pollutants that are not listed

in its permit. The material facts in

this case are not in dispute. (AS).

If the Second Circuit is correct

that the Environmental Protection Agency

(EPA‘ has allowed the discharge of

pollutants not covered in a permit, then

the EPA is acting contrary to the Act.

The Act plainly does not allow or intend

to allow such discharges. As previously

discussed, section 402(k) does not

provide such a broad shield.

The Second Circuit noted that a

regulatory gap seems to exist with regard

to the discharge of pollutants not

limited in a permit. (Al10-11). EPA has

also struggled with the reality that the

Statute requires no discharge unless

authorized by the limits of a permit.

As established in the previous

section, EPA itself has brought cases

Similar to the case at bar based upon the

Same statutory grounds. See United

states v. Ketchikan Pulp Co. and United

states v. Tennessee Gas Pipeline, infra,

p.40. For the Second Circuit to say that

EPA has never acted in a way to Support

Atlantic States’ view of the Act is

Clearly erroneous. (A10-11).

Regardless of EPA's flip-flopping on

this issue, and the evident regulatory

gap, there is no statutory gap. The

language of section 301 (a) clearly

prohibits such discharges. 33 U.S.C.

13ll(a). The Second Circuit's opinion

contradicts this Court's often stated

principle that the starting point for

interpreting a statute is the statute

itself. See, e.g., Consumer Products

Safety Commission v. GTE Sylvania, Inc.,

447 U.S. 102, 108 (1980).

CONCLUSION

The decision of the Second Circuit

directly contradicts the plain language

of the statute and thwarts the

legislative scheme intended to move

towards the elimination of the discharge

of pollutants into the nation's waters.

The decision conflicts in principle with

previous Supreme Court decisions

interpreting the Clean Water Act,

particularly this Court's reading of the

scope of protection available under

section 402(k) of the Act. The differing

District Court opinions on this issue,

including actions brought by EPA, as well

as the Ninth Circuit's recognition of

states' rights to prohibit discharges

within the confines of the Clean Water

Act, all call for resolution of this

issue by the this Court. The issues

presented are fundamental to the

A AN a NE te Peewee

effective national implementation of the

Clean Water Act and provide compelling

reasons for this Court to grant this

petition for a writ of certiorari.

Respectfully submitted,

CHARLES M. TEBBUTT, Esq.

Counsel of Record

ALLEN, LIPPES & SHONN

1260 Delaware Avenue

Buffalo, New York 14209

(716) 884-4800

Attorneys for Petitioner

Of Counsel:

Michael D. Axline, Esq.

DATED: May 17, 1994

;

Before:

Court for the Western District of New York (Michael A.

Telesca, Chief Judge) granting summary judgment against

the plaintiff on the ground that there is no provision

authorizing a citizen suit alleging that discharges of efflu-

APPENDIX

Opinion of the United States Court of

Appeals for the Second Circuit

Dated December 14, 1993.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1624—August Term, 1992

(Argued: June 10, 1993 Decided: December 14, 1993)

Docket No. 93-7091

ATLANTIC STATES LEGAL FOUNDATION, INC.,

Plaintiff-Appellant,

—_—V—

EASTMAN KODAK COMPANY,

Defendant-Appellee.

WINTER, MCLAUGHLIN, and JACOBS,

Circuit Judges.

Appeal from an order of the United States District

7229

ents not listed in defendant's State Pollutant Discharge

Elimination System permit are unlawful.

We affirm.

CHARLES M. TEBBUTT, Buffalo, New York

(Edward Cooper, Allen, Lippes & Shonn,

Buffalo, New York, of counsel), for

Plaintiff-Appellant.

PHILIP H. GITLEN, Albany, New York (Eliz-

abeth M. Morss, Carl F. Patka, Whiteman

Osterman & Hanna, Albany, New York,

of counsel), for Defendant-Appellee.

Robert Abrams, Attorney General of the State

of New York, Peter Schiff, Deputy Solic-

itor General, James A. Sevinsky, Val

Washington, Assistant Attorneys General,

Albany, New York, of counsel, for the

State of New York as amicus curiae.

Michael Axline, Western Environmental Law

Clinic, Eugene, Oregon, Katherine

Kennedy, James Simon, National

Resources Defense Council, New York,

New York, James R. May, Widener Uni-

versity School of Law Environmental

Law Clinic, Wilimington, Delaware,

Matthew McKeown, Joel Morton, David

Simonaitis, Jennifer Wright, Law Stu-

dents, of counsel, for Natural Resources

Defense Council, et al. as amicus curiae

in support of appellant.

7230

4 a BOM A ID, Lik the CR cab stalls a

Ce ee

Theodore L. Garrett, Corinne A. Goldstein,

Covington & Burling, Washington, D.C.,

David F. Zoll, Sarah M. Brozena, Chem-

ical Manufacturers Association, Wash-

ington, D.C., Robin S. Conrad, National

Chamber Litigation Center, Washington,

D.C., Cindy Evans, American Forest and

Paper Association, Washington, D.C.,

Ellen Siegler, American Petroleum Insti-

tute, Washington, D.C., of counsel, for

Chemical Manufacturers Association, et

al. as amicus Curjae in support of

appellee.

WINTER, Circuit Judge:

This appeal raises the issue of whether Private groups

may bring a citizen suit Pursuant to Section 505 of the

Federal Water Pollution Control Act (commonly known as

the Clean Water Act), 33 U.S.C. § 1365, to Stop the dis-

Charge of pollutants not listed in a valid permit issued

Pursuant to the Clean Water Act (“CWA” or “the Act”),

33 U.S.C. § 1342 (1988). We hold that the discharge of

unlisted pollutants is not unlawful under the CWA. We

also hold that private groups may not bring such a suit to

enforce New York State environmental regulations.

BACKGROUND

Appellee Eastman Kodak Company (“Kodak”) operates

an industrial facility in Rochester, New York that dis-

charges wastewater into the Genesee River and Paddy Hill

Creek under a State Pollutant Discharge Elimination Sys-

7231

tem (“SPDES”) permit issued pursuant to 33 U.S.C.

§ 1342. Appellant Atlantic States Legal Foundation, Inc.

(“Atlantic States”) is a not-for-profit environmental group

based in Syracuse, New York.

Kodak operates a wastewater treatment plant at its

Rochester facility to purify waste produced in the manu-

facture of photographic supplies and other laboratory

chemicals. The purification plant employs a variety of

technical processes to filter harmful pollutants before dis-

charge into the Genesee River at the King’s Landing dis-

charge point (designated Outfall 001) pursuant to its

SPDES permit.

Kodak first received a federal permit in 1975. At that

time, the pertinent regulatory scheme was the National

Pollutant Discharge Elimination System (“NPDES”) that

was administered directly by the federal Environmental

Protection Agency (“EPA”). Subsequently, 33 U.S.C.

§ 1342(b), (c) delegated authority to the states to establish

their own programs in place of the EPA’s. As a result,

Kodak applied in July 1979 to renew its permit to the

New York State Department of Environmental Conser-

vation (“DEC”). The DEC declined to act on Kodak’s

renewal application, and Kodak’s NPDES permit

remained in effect. As part of the pending application for

a SPDES permit, in April 1982 Kodak provided the DEC

with a Form 2C describing estimated discharges of 164

substances from each of its outfalls. Kodak also submit-

ted an Industrial Chemical Survey (“ICS”) disclosing the

amounts of certain chemicals used in Kodak’s facility and

whether they might appear in the plant’s wastewater.

Although the ICS originally requested information on 144

substances, including some broad classes such as “unspec-

ified metals,” the DEC restricted the inquiry to chemicals

used in excess of specified minimum levels.

7232

Ee |

On the basis of these disclosures, DEC issued Kodak a

SPDES permit, number 000-1643, effective November 1,

1984, establishing specific effluent limitations for approx-

imately 25 pollutants.' The permit also included “action

levels”? for five other pollutants as well as for three of the

pollutants for which it had established effluent limits.?

DEC further required Kodak to conduct a semi-annual

scan of “EPA Volatile, Acid and Base/Neutral Fractions

and PCB’s priority pollutants on a 24-hr. composite sam-

ple.” In May 1989, Kodak applied to renew the SPDES

permit submitting a new Form 2C and ICS, but the 1984

permit will continue to remain in effect until DEC issues

a.final determination.

Kodak’s SPDES permit contains both “general provi-

sions” and “special reporting requirements” pursuant to

EPA policy directives devised to implement the Clean

Water Act and to DEC policy directives devised to imple-

ment both the Clean Water Act and New York law, N.Y.

Envtl. Conserv. Law § 17-0815 (McKinney 1984).

The present action arises out of an Ongoing dispute

between Atlantic States and Kodak during which Atlantic

States has claimed that Kodak both exceeded the effluent

limits imposed by its SPDES permit and discharged pol-

| _UOD, TKN, Ammonia, BODs, oil & grease, phosphorus, cyanide,

cadmium, chromium, copper, iron, lead, nickel, silver (total and ionic),

zinc, mercury, chloroform, 4-Chloro-3,5-dimethylphenol, 1,2-Dich-

loroethane, 1 ,2-Dichloropropane, N,N-Dimethylaniline, Dichlorome-

thane, Pyridine, and Xylene.

2 If the action level is exceeded, the permittee must undertake a “short-

term, high-intensity monitoring program.” If levels higher than the action

levels are confirmed, the permit is reopened for consideration of revised

action levels or effluent limits.

> The permit set action levels for arsenic, 4,4’ Butylidenebis-(6-t-buty|-

m-cresol), lsophorone, 1,2,4-Trichlorobenzene, and Tripheny! Phosphate,

as well as for Chromium, Copper, and Ammonia which already had

established efftuent limits.

7233

lutants for which Kodak had no discharge authorization.

The procedural history of this dispute is set out in full in

our previous decision, Atlantic States Legal Found., Inc.

v. Eastman Kodak Co., 933 F.2d 124 (2d Cir. 1991)

(“Atlantic States 1”), familiarity with which is assumed.

On Noveinber 14, 1991, Atlantic States filed the com-

plaint in the instant matter. The complaint alleged that

Kodak had violated Sections 301 and 402 of the Clean

Water Act, 33 U.S.C. §§ 1311, 1342, by discharging large

quantities of pollutants not listed in its SPDES permit.‘

The complaint alleged standing to bring suit under the

“citizen suits” provision of the Clean Water Act, 33

U.S.C. § 1365. The CWA authorizes any “person or per-

sons having an interest which is or may be adversely

affected,” to “commence a civil action on his own behalf

against any person. . . who is alleged to be in violation

of. . . an effluent standard or limitation under [the Clean

Water Act}” in the district court. 33 U.S.C. § 1365(a), (g).

As relief, Atlantic States requested a declaratory judgment

as to the alleged violations, an injunction against future

violations, authorization for Atlantic States itself to mon-

itor Kodak's wastewater discharges at Kodak’s expense

for a period of one year after Kodak ceases the alleged

violations, copies of all reports and documents filed with

EPA or DEC during the same time period, civil penalties

* Specifically, the complaint alleged that Kodak had discharged

“282,744 pounds of unpermitied pollutants in 1987, 308,537 pounds in

1988, 321,456 pounds in 1989[,] and 290,121 pounds in 1990,” and that

Auuntic States believed that Kodak continued to discharge such pollu-

tants. The 27 substances Atlantic States alleged that Kodak discharged

were acetonitrile, acetone, carbon tetrachloride, catechol, cyclohexane,

dibutyl phthalate, diethanolamine, ethylene glycol, glycol ethers,

formaldehyde, hydroquinone, manganese, methanol, methyl ethyl

ketone, methyl isobutyl ketone, n-butyl alcohol, nitrobenzene, |,1,1-

irichloroethane, |,1,2-trichloroethane, | ,4-dioxane, 2-ethoxyethanol, 2-

methoxyethanol, tert-butyl alcohol, toluene, and trichloroethylene.

7234

erties tinned anni alti enema me

of $25,000 per day of violation for each alleged violation,

and costs, including attorneys’ and witnesses’ fees.

After discovery, Atlantic States moved for partial sum-

mary judgment as to Kodak’s liability in relation to the

post-April 1, 19905 discharge of one or more of 16 of the

27 pollutants listed in the complaint. The 16 pollutants®

are all listed as toxic chemicals under Section 313(c) of

the Emergency Planning and Community Right-to-Know

Act, 42 U.S.C. § 11023(c). Atlantic States argued that

General Provision 1(b) of the SPDES permit and Section

301 of the CWA, 33 U.S.C. § 1311, prohibit absolutely

the discharge of any pollutant not specifically authorized

‘under Kodak’s SPDES permit. Kodak made a cross-

motion for summary judgment on the ground that neither

the CWA nor the federal regulations implementing it pro-

hibit discharge of pollutants not specifically assigned

effluent limitations in an NPDES or SPDES permit.

Kodak further argued that, to the extent the permit may

have prohibited discharges of these pollutants, this pro-

hibition is broader than that of the federal NPDES pro-

gram and therefore not enforceable through a citizen suit

under 33 U.S.C. § 1365. On December 28, 1992, the dis-

trict court denied Atlantic States’ motion for partial sum-

mary judgment, granted Kodak’s cross-motion for

summary judgment, and dismissed the case. Atlantic

States Legal Found., Inc. v. Eastman Kodak Co., 809 F.

Supp. 1040 (W.D.N.Y. 1992). Atlantic States appealed

from the judgment entered on that order.

> — The Order on Consent, entered into April 5, 1990, between Kodak

and DEC resolved the question of Kodak's liability for discharges before

April 1, 1990. See Atlantic States 1, 933 F.2d at 126-27.

® Acetonitrile, acetone, dibutyl phthalate, diethanolamine, ethylene gly-

col, glycol ethers, manganese, methanol, methy!| ethyl ketone, methy|

isobutyl ketone, n-buty! alcohol, 1,1,1 -trichloroethane, | ,1,2-trichloro-

ethane, 1,4-dioxane, 2-methoxyethanol, and toluene.

7235

DISCUSSION

None of the material facts are in dispute’ and this mat-

ter may be properly disposed of by summary judgment.

Atlantic States brought the present action under the cit-

izen suit provision of Section 505, which permits private

suits to enforce a CWA “effluent standard or limitation.”

33 U.S.C. § 1365(a)(1)(A). Section 505 defines such an

enforceable standard or limitation as, inter alia, “an

unlawful act under. . . section 1311,” and “a permit or

condition thereof issued under section 1342 of this title,

which is in effect under this chapter.” 33 U.S.C.

§ 1365(f)(1), (6). The question then is whether Atlantic

States” action seeks to enforce an “effluent standard or

limitation” imposed by the Act or by Kodak’s SPDES per-

mit issued by the DEC.

A. “Standards and Limitations” of the Clean Water Act

Atlantic States argues first that the plain language of

Section 301 of the CWA, 33 U.S.C. § 1311, prohibits the

discharge of any pollutants not expressly permitted. With

7 Atlantic States’ contentions regarding the number and amount of pol-

lutants discharged are not material given our disposition of this matter.

Of the 16 substances on which Adiantic States moved for partial sum-

mary judgment, seven were listed by Kodak in its permit application,

Form 2C, or ICS, of were specifically mentioned in the DEC's 1988

Notice Letter: dibuty! phthalate, ethylene glycol, manganese, 1 ,4-diox-

ane, 1,1,]-trichloroethane, 1,1,2-trichlorvethane, and toluene. These sub-

stances received specific regulatory inquiry. The remaining nine

substances appeared on Kodak's Form R's, the source of Atlantic States’

information. Kodak must file annually Form R's, a Toxic Chemical

Release Inventory Reporting Form, with both EPA and DEC, pursuant

ty 42 U.S.C. § 11023. Although not listed in Kodak’s SPDES permit,

these substances were subject to DEC regulation. Even had there been

no regulation of the particular substances, Atlantic States would still not

have standing to sue unless it could show violations of established reg-

ulatury limits.

7236

rrr

regard to this claim, therefore, Atlantic States’ Standing

to bring this action turns on the merits of the action itself,

Section 301(a) reads: “Except as in compliance with

this section and sections 1312, 1316, 1317, 1328, 1342,

and 1344 of this title, the discharge of any pollutant by

any person shall be unlawful.” This Prohibition is tem-

pered, however, by a self-referential host of exceptions

that allow the discharge of many Pollutants once a pol-

luter has complied with the regulatory program of the

CWA. The exception relevant to the instant matter is con-

tained in Section 402, which Outlines the NPDES, 33

U.S.C. § 1342(a), and specifies the requirements for sus-

pending the national system with the submission of an

approved state program, 33 U.S.C. § 1342(b), (c). Section

402(k) contains the so-called “shield provision,” 33

U.S.C. § 1342(k), which defines compliance with a

NPDES or SPDES permit as compliance with Section 301

for the purposes of the CWA’s enforcement provisions.

The Supreme Court has noted that “The purpose of [Sec-

tion 402(k)] seems to be. . . to relieve [permit holders]

of having to litigate in an enforcement action the question

whether their permits are sufficiently strict.” EJ. du Pont

de Nemours & Co. y. Train, 430 U.S. 112, 138 n.28

(1977).

Atlantic States’ view of the regulatory framework

stands that scheme on its head. Atlantic States treats per-

mits as establishing limited permission for the discharge

of identified pollutants and a prohibition on the discharge

of unidentified pollutants. Viewing the regulatory scheme

as 4 whole, however, it is clear that the permit is intended

to identify and limit the most harmful pollutants while

leaving the control of the vast number of other pollutants

to disclosure requirements. Once within the NPDES or

SPDES scheme, therefore, polluters may discharge pol-

7237

Al0

lutants not specifically listed in their permits so long as

they comply with the appropriate reporting requirements

and abide by any new limitations when imposed on such

pollutants.*

The EPA lists tens of thousands of different chemical

substances in the Toxic Substances Control Act Chemical

Substance Inventory pursuant to 15 U.S.C. § 2607(b)

(1988). However, the EPA does not demand even infor-

mation regarding each of the many thousand chemical

substances potentially present in a manufacturer's

wastewater because “it is impossible to identify and ratio-

nally limit every chemical or compound present in a dis-

charge of pollutants.” Memorandum from EPA Deputy

Assistant Administrator for Water Enforcement Jeffrey G.

Miller to Regional Enforcement Director, Region V, at 2

(Apr. 28, 1976). “Compliance with such a permit would

be impossible and anybody seeking to harass a permittee

need only analyze that permittee’s discharge until deter-

mining the presence of a substance not identified in the

permit.” /d. Indeed, Atlantic States conceded at oral argu-

ment that even plain water might be considered a “pol-

lutant” under its view of the Act.

The EPA has never acted in any way to suggest that

Atlantic States’ absolutist and wholly impractical view of

8 The cases Atlantic States cites are therefore inapposite because each

involves either a failure to correctly disclose accurately the discharge of

pollutants and thus comply with regulation or a failure to secure the req-

uisite NPDES or SPDES permit. Atlantic States Legal Found., Inc. v.

Reynolds Metals Co., 31 Env't Rep. Cas. (BNA) 1156, 1158 (N.D.N_Y.

1990) (failing to “apply proper detection”); United States v. Tom-Kat

Development, Inc., 614 F. Supp. 613 (D. Alaska 1985) (failing to obtain

permit); Kitlutsisti v. ARCO Alaska, Inc., 592 F. Supp. 832 (D. Alaska

1984) (failing to obtain permit), vacated on other grounds, 782 F.2d 800

(9th Cir. 1986); Love v. New York State Dep't of Envi'l Conservation, 529

F. Supp. 832 (S.D.N.Y. 1981) (failing to obtain proper permit).

7238

i ii isi ts

£0 wie’

All

the legal effect of a permit is valid.? In fact, the EPA’s

actions and policy statements have frequently contem-

plated discharges of pollutants not listed under a NPDES

or SPDES permit. It has addressed such discharges by

amending the permit to list and limit a pollutant when

necessary to safeguard the environment without consid-

ering pre-amendment discharges to be violations calling

for enforcement under the CWA. 33 U.S.C. §§ 1319,

1365. The EPA thus stated in its comments on proposed

40 C.F.R. § 122.68(a), which applied the “application-

based” limits approach to implementation of the CWA

reporting scheme,

There is still some possibility . . . that a [NPDES or

SPDES] permittee may discharge a large amount of a

pollutant not limited in its permit, and EPA will not

be able to take enforcement action against the per-

mittee as long as the permittee complies with the

notification requirements [pursuant to the CWA].

45 Fed. Reg. 33516, 33523 (1980). The EPA’s statement

went on to note that this possibility constituted a “regu-

latory gap,” and that, “the final regulations control dis-

charges only of the pollutants listed in the [NPDES or

SPDES] permit application, which consist primarily of the

listed toxic pollutants and designated hazardous sub-

stances.” /d. In a clarification of EPA policy on Section

9 Atlantic States’ citations to allegedly contrary authority are again

inapposite. Atlantic States relies on the court's summary of the U.S.

Attorney's argument in a footnote to an unpublished opinion in the West-

ern District of Louisiana, United States v. Tennessee Gas Pipeline Co.,

No. 91-1428, slip op. at 5 n.4 (W.D.La. Oct. 8, 1991), and a U.S. Attor-

ney’s brief in an Alaska case, not signed by any EPA lawyer, involving

inaccurate reporting of effluent data, Memorandum in Opposition to

Defendant's Motion for Partial Summary Judgment and in Support of

United States’ Cross-Motion for Partial Summary Judgment, United

States v. Ketchikan Pulp Co., No. A92-587 (D. Alaska Dec. 14, 1992).

7239

Al2

304, 33 U.S.C. § 1314, and water quality-based effluent

limitations, an EPA official recently stated that:

EPA did not intend to require water quality-based

permit limitations on all pollutants contained in a dis-

charge. . . . The proper interpretation of the regu-

lations is that developing water quality-based

limitations is a step-by-step process. . . . |WJater

quality-based limits are established where the per-

mitting authority reasonably anticipates the discharge

of pollutants by the permittee at levels that have the

reasonable potential to cause or contribute to an

excursion above any state water quality criterion

Memorandum from Director, Office of Wastewater

Enforcement and Compliance to Water Management Divi-

sion Directors, Regions I-X, at 2-3 (Aug. 14, 1992).

The EPA is the federal agency entrusted with adminis-

tration and enforcement of the CWA. 33 U.S.C. § 1251(d).

As such, EPA’s reasonable interpretations of the Act are

due deferential treatment in the courts. Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837,

844 (1984). As the Supreme Court has noted in regard to

EPA interpretation of the CWA,

we need not find that it is the only permissible con-

struction that EPA might have adopted but only that

EPA’s understanding of this very ‘complex statute’ is

a sufficiently rational one to preclude a court from

substituting its judgment for that of EPA.

Chemical Mfrs. Ass'n v. Natural Resources Defense Coun-

cil, 470 U.S. 116, 125 (1985) (quoting Train v. National

Resources Defense Council, 421 U.S. 60, 75, 87 (1975)).

Because the EPA’s implementation of the CWA is entirely

reasonable, we defer to it.

7240

eeeeeeeeeEeEeEeEE——E—————EE

+ eS Se AR

Al3

B. New York Environmental “Standards and Limitations”

Atlantic States argues alternatively that the permit itself

provides grounds for enforcement of New York State’s

regulations. States may enact stricter standards for

wastewater effluents than mandated by the CWA and fed-

eral EPA regulations. 33 U.S.C. § 1342(b). These states’

standards may be enforced under the CWA by the states or

the EPA, 33 U.S.C. § 1342(h), but private citizens have no

standing to do so. New York chose to implement its own

environmental policies through its DEC’s issuance of

SPDES permits pursuant to N.Y. Envtl. Conserv. Law

§ 17-0815 (McKinney 1984).

However, state regulations, including the provisions of

SPDES permits, which mandate “a greater scope of cov-

erage than that required” by the federal CWA and its

implementing regulations are not enforceable through a

citizen suit under 33 U.S.C. § 1365. 40 C.FR.

§ 123.1(i)(2). Cf. United States Dep't of Energy v. Ohio,

112 S. Ct. 1627, 1638 (1992) (holding that “penalties pre-

scribed by state statutes approved by EPA and supplant-

ing the CWA” did not “arise under federal law” and thus

could not be enforced under 33 U.S.C. § 1319).

Aulantic States relies heavily on General Provision 1(b)

of the SPDES permit to show a violation of the CWA. In

particular, Atlantic States points to the final clause of that

provision that requires, pursuant to N.Y. Envtl. Conserv.

Law § 17-0815(3), that

the discharge of any pollutant not identified and

authorized or the discharge of any pollutant more fre-

quently than or at a level in excess of that identified

and authorized by this permit shall constitute a vio-

lation of the terms and conditions of this permit.

7241

Al4

However, General Provision 1(b) itself contemplates

“new, increased or decreased discharges” that do not “vio-

late the effluent limitations specified in this permit.”'°

Moreover, Special Reporting Requirement 2(a) of the

SPDES permit specifically contemplates discharges of

pollutants not identified by the permit. It states, in rele-

vant part:

All existing manufacturing . . . dischargers must

notify the [DEC] as soon as they know or have rea-

son to believe. . . [t}hat they have begun or expect

to begin to use or manufacture as an intermediate or

final product or byproduct any toxic pollutant which

was not reported in the permit application.

Kodak also must file annually with both EPA and DEC

a Toxic Chemical Release Inventory Reporting Form

(“Form R”), pursuant to 42 U.S.C. § 11023. Form R’s

contain estimates of discharges of 317 chemicals and 20

“categories” of chemicals based on the amounts used in

the manufacturing process, 42 U.S.C. § 11023(g)(2), 40

C.F.R. § 372.65, but they do not include more precise

measurements based on actual discharges such as Non-

10 General Provision |(b) reads:

b. All discharges authorized by this permit shall be consistent with

the terms and conditions of this permit; facility expansions, pro-

duction increases, decreases, or process modifications which result

in new, increased or decreased discharges of pollutants must be

reported by submission of a new SPDES application or, if such new,

increased, or decreased discharge does not violate the effluent lim-

itations specified in this permit, by submission to the permit issuing

authority of notice of such new or increased discharges of pollutants

(in which case the permit may be modified to specify effluent limi-

tations or any pollutants not identified and limited herein); the dis-

charge of any pollutant not identified and authorized or the discharge

of any pollutant more frequently then or at a level in excess of that

identified and authorized by this peri... shall constitute a violation of

the terms and conditions of this permit.

7242

oe aoe

oh reed

Al5

Compliance Reports and monthly Discharge Monitoring

Reports required under 33 U.S.C. § 1318.

Like the SPDES permit, the DEC itself contemplates

the discharge of unlisted pollutants. In September 1988,

DEC notified Kodak that it was aware of 45 substances

“reported to have releases to the Genesee River” out of

which only 23 were “specifically limited or monitored by

the SPDES permit.” DEC advised Kodak that although the

bulk of these 23 substances either did not appear to be a

major concern, or at least did not “appear to be acutely

toxic to aquatic life at the levels of discharge indicated,”

the remaining four" should receive “additional attention.”

It thus appears that the DEC’s view of the SPDES per-

mit is the same as the EPA’s. If so, Atlantic States’ action

fails for reasons stated in Point A above. We need not

resolve the issue, however, for, even if Atlantic States is

right about New York law, the action would fail because

New York would be implementing a regulatory scheme

broader than the CWA, see Atlantic States Legal Found.,

Inc. v. Eastman Kodak Co., 809 F. Supp. at 1048, and

such broader state schemes are unenforceable through

Section 505 citizen suits. A citizen’s suit under Section

505 is thus barred either because Section 17-0815(3) and

the final clause of General Provision 1(b) implement a

program with broader scope than that promulgated under

the CWA and EPA regulations or because the permit more

narrowly interpreted shields Kodak from such an action.

CONCLUSION

For the reasons stated above, we affirm the order of the

district court granting summary judgment to Kodak.

1! Ethylene glycol, hydroquinone, manganese compounds, and

1 ,4-dioxane.

7243

Al6

Order Amending Opinion of December 14, 1993.

93-7091

UNITED STATES DISTRICT COURT

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 3 day of

February, one thousand nine hundred and four.

Present:

Honorable Ralph K. Winter,

Honorable Joseph M. McLaughlin,

Honorable Dennis G. Jacobs,

Circuit Judges.

ATLANTIC STATES LEGAL FOUNDATION, INC.,

Plaintiff-Appellant,

Vv.

EASTMAN KODAK COMPANY,

Defendant-Appellee.

ORDER

It is now hereby ordered that the opinion issued in this

case, Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Company, No. 93-7091, slip op. at 7229 (2d Cir.

Dec. 14, 1993), be amended as follows:

Al7

Change the sentence beginning at page 7238, line 20

from:

‘Indeed, Atlantic States conceded at oral argument that

even plain water might be considered a ‘pollutant’ under

its view of the Act.”

to:

‘Indeed, at oral argument Atlantic States could provide

no principled reason why water itself, which it conceded

to be a chemical, would not be considered a ‘pollutant’

under its view of the Act.”

RALPH K. WINTER

Hon. Ralph K. Winter, U.S.C.J.

JOSEPH M. MCLAUGHLIN

Hon. Joseph M. McLaughlin, U.S.C.J.

DENNIS G. JACOBS

Hon. Dennis G. Jacobs, U.S.C.J.

Al8

Decision and Order of Judge Telesca Denying Plaintiff's

Motion for Partial Summary Judgment and Granting

Defendant's Cross-Motion for Summary Judgment,

Filed on December 28, 1992.

91-CV-6471T

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ATLANTIC STATES LEGAL FOUNDATION, INC.,

658 West Onondaga Street,

Syracuse, New York 13204,

Plaintiff,

vs.

EASTMAN KODAK COMPANY,

1669 Lake Avenue,

Rochester, New York 14650,

Defendant.

INTRODUCTION

This action was commenced November 14, 1991,

pursuant to §505 of the Federal Water Pollution Control

Act (the “Clean Water Act” or “‘Act’’), as amended, 33

U.S.C.A. §1365 (West 1986 and Supp. 1992), which

authorizes citizens to commence actions (‘‘citizens suits’’)

against persons alleged to have violated ‘‘effluent

standards or fother limitations on the release of

pollutants into the nation’s navigable waters)”

established by the Act.

Al9

The plaintiff, Atlantic States Legal Foundation, Inc.

(“Atlantic States’’), is a not-for-profit corporation with

its principal place of business in Syracuse, New York. Its

members include residents of Rochester who either own

property or use recreation facilities in or near the

Genesee River and Paddy Hill Creek, which allegedly are

affected by the discharges of pollutants from defendant

Eastman Kodak Company, Inc. (“Eastman Kodak” or

‘‘Kodak’’) in violation of the Act. Atlantic States alleges

that such discharges emanate from Kodak Park, one of

defendant's major industrial facilities located in

Rochester, New York.

Atlantic States has moved for partial summary

judgment on the issue of the liability of defendant

Eastman Kodak Company for violating the Clean Water

Act by discharging, since April 1, 1990, one or more of

16 pollutants’ into the water supply. Defendant Kodak

has cross-moved for summary judgment dismissing the

complaint on various grounds. Upon review of the Clean

Water Act itself, its legislative history and current

regulatory scheme, and the relevant case law, I find that,

when an alleged polluter is subject to a pollution

discharge permit issued pursuant to the Clean Water

Act, a citizen suit under the Act against the polluter

may only address discharges of pollutants expressly

regulated by such permit. Accordingly, and for the

reasons discussed below, plaintiff's motion is denied,

defendant’s cross-motion is granted, and the complaint

dismissed in accordance with this decision.

‘Namely, acetonitrile, acetone, dibutyl phthalate, diethanolamine,

ethylene glycol. glycol ethers, manganese, methanol, methyl ethyl

ketone, methyl isobutyl ketone, n-butyl alcohol, 1,1,1-trichloroethane,

1,1,2-trichlorethane, 1,4-dioxane, 2-methoxyethanol, and toluene.

A20

BACKGROUND

The Earlier Action—‘**Kodak I”

Atlantic States commenced an earlier action against

Kodak in August 1989.? That complaint alleged that

New York State (the ‘‘State’’), through its Department of

Environmental Conservation (““‘DEC’’), issued to Kodak a

permit under the National Pollutant Discharge

Elimination System pursuant to §$402(b) of the Act, 33

U.S.C. §$1342(b) (a “State NPDES Permit"’ or SPDES

Permit’). This SPDES Permit authorizes Kodak to

discharge limited quantities of certain pollutants from its

Kodak Park facility into both the Genesee River and the

Paddy Hill Creek. The complaint alleged that Kodak's

discharges of pollutants had exceeded the limitations of

its SPDES Permit on numerous occasions between

March 1987 and May 1989. In a decision filed September

18, 1990, I dismissed Kodak I as precluded by a prior

settlement with the State. On appeal, the Second Circuit

vacated that dismissal and remanded Kodak I for a

determination whether the prior settlement between

Kodak and the State had ‘“‘caused the violations alleged

by Atlantic States to cease and eliminated any realistic

prospect of their recurrence.’”

After remand, Atlantic States moved pursuant to Fed.

R. Civ. P. 15 to amend its complaint to include both

violations of Kodak's SPDES Permit (‘‘exceedances’’)

which had occurred after the filing of the complaint and

* Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., Inc,

89-CV-1050 ("Kodak J").

* Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., Inc.,

933 F.2d 124, 128 (2d Cir. 1991).

A21

discharges by Kodak of pollutants which are not

expressly mentioned in the SPDES Permit. In a decision

filed September 27, 1991, I granted Atlantic States’s

motion insofar as it sought to include in the complain*

more recent exceedances of the SPDES Permit and

denied the motion insofar as it sought to include

discharges of pollutants which are not mentioned in the

Permit. Kodak I has since settled, and these discharges

concerning pollutants not mentioned in Kodak’s SPDES

Permit form the basis of the complaint in the instant

action (‘‘Kodak II’’).

This Complaint

The complaint in Kodak II alleges that information

submitted by Kodak in the form of “toxic chemical

release forms” (“Form Rs’’)* establishes that Kodak is

discharging pollutants which it is not authorized to

discharge under its SPDES Permit, and that Kodak is,

accordingly, violating both its Permit and the Act.

Plaintiff seeks a declaration that these discharges violate

the Clean Water Act; an injunction against Kodak's

continuing discharge of these pollutants; mandatory

disclosure to plaintiff by Kodak concerning its activities

at Kodak Park relevant to these discharges; and both the

maximum civil penalties permitted under the Act and

attorney’s fees.

‘ Form Rs are reporting devices which Kodak is required to submit to

both the EPA and the State pursuant to §313 of the Emergency

Planning and Community-Right-To-Know Act (“EPCRA”), also

known as Title III of the Superfund Amendments and

Reauthorization Act (“SARA”), 42 U.S.C.A. §11023 (West Supp.

1992).

A22

Plaintiff's Motion for Partial Summary Judgment

In its motion for summary judgment on the issue of

Kodak's liability under the Act, Atlantic States relies

almost exclusively upon information in Form Rs

submitted by Kodak to both the United States

Environmental Protection Agency (“EPA”) and the

State, and upon affidavits interpreting the significance of

the Form Rs. Atlantic States argues that Kodak’s Form

Rs, submitted for the years 1989-91, constitute

admissions of violations of the Act sufficient to warrant

granting of its motion.

Facilities, such as Kodak Park, which are known to

have released toxic chemicals into the environment, must

submit Form Rs annually. 42 U.S.C. §11023(a). Form Rs

contain detailed information concerning toxic discharges

which occur in the normal course of a facility's business.

While the Forms are based on chemicals known to be

used and/or produced in the ordinary course of business,

the information contained therein is essentially the result

of a sophisticated process of estimation, including

computer models, rather than of precise actual

measurement. In this regard, and for purposes of a

summary judgment motion, Form Rs differ significantly

from the discharge monitoring reports (“‘DMRs’’) and

non-compliance reports (‘‘NCRs”’) which formed the basis

of Atlantic States’ complaint in Kodak I. DMRs and

NCRs are regular reports of actual discharges which a

permit holder is required to submit to both the state and

the EPA. Courts have consistently found that

undisputed DMRs and NCRs constitute sufficient

evidence of a permit holder's liability under the Act to

warrant granting a motion for summary judgment on

that issue. See, eg. Chesapeake Bay Found ov.

Bethlehem Steel Corp., 608 F. Supp. 440, 451 (D.Md.

A23

1985); Nat. Resource Defense Council v. Texaco Refining,

719 F. Supp. 281, 289 (D. Del. 1989), vacated in part on

unrelated ground, 906 F.2d 934 (3d Cir. 1990); cf. Friends

of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532,

536 (W.D.N.Y. 1984) (Summary judgment inappropriate

when defendant disputes DMRs.) Thus, even if I were to

consider the merits of plaintiff's motion for summary

judgment, I would find that plaintiff's submission of

Form Rs fails to establish by a preponderance that

Kodak has violated the Act as alleged in the complaint.

Defendant's Cross-Motion for Summary Judgment

Kodak does not directly oppose Atlantic States’s

summary judgment motion; it cross-moves for summary

judgment on bases initially pled as affirmative defenses.°

Kodak argues that this action should be dismissed

because the complaint alleges discharges only of

pollutants which are not expressly regulated by its

SPDES Permit and that such discharges are not the

proper subject of a citizen suit under the Clean Water

Act. With respect to this argument Kodak relies almost

exclusively on the EPA's interpretation of the Act as

evidenced in various internal EPA memos.

Alternatively, Kodak argues that the Clean Water Act

itself precludes this citizen suit, because it bars such

suits when a state ‘has commenced and is diligently

prosecuting an action under a [comparable] state law’

and when a state “has issued a final order not subject to

* Kodak's thirteenth affirmative defense states that ‘discharges of

pollutants not specifically limited in the SPDES Permit by an

effluent limitation for the specified chemical does not violate either

the Act or the SPDES Permit.” Kodak's fourteenth affirmative

defense states that the instant citizen suit is precluded by the

Consent Order entered into between Kodak and the State, effective

April 1, 1990.

A24

further judicial review and the violator has paid a

penalty assessed under ... [a] comparable state law." 33

U.S.C. §1319(6A). Kodak argues that the same Consent

Order which formed the basis for this Court's dismissal

of Kodak I also precludes the instant suit. If 1 were to

reach this alternative argument, I would, on the basis of

the record before me, be obliged to deny the motion,

because disputed issues of fact remain as to whether

Kodak's settlement with the State has actually ‘‘caused

the violations alleged by Atlantic States to cease and

eliminated any realistic prospect of their recurrence.”’

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., Inc., 933 F.2d at 128.

As discussed below, these motions turn on the

meaning of the relevant provisions of the Act, a meaning

which emerges only upon reading the provisions

conjunctively and in light of both the Act’s legislative

history and its regulatory scheme.

DISCUSSION

Relevant Provisions of the Clean Water Act

The Citizen Suit Provision—33 U.S.C. § 1365

The citizen suit provision under which Atlantic States

sues is found in 33 U.S.C. $1365, which provides that

... amy citizen may commence a civil action on his

own behalf—

(1) against any person ... who is alleged to be in

violation of (A) an effluent standard or limitation

under [the Act] or (B) an order issued by .. . a State

with respect to such a standard or limitation. . .

This citizen suit provision is modeled after a similar

nrovision in the Clean Air Act, and they “share the

common central purpose of permitting citizens to abate

pollution when the government cannot or will not

A25

command compliance.” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.

Ct. 376, 384, 98 L.Ed.2d 306 (1987). In providing for

citizen suits under these Acts, ‘‘Congress [has] made clear

that citizen groups are not to be treated as nuisances or

troublemakers, but rather as welcomed participants in the

vindication of environmental interest."’ Friends of the

Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976) (Clean

Air Act); see also Friends of the Earth v. Conrail Corp.,

168 F.2d 57, 63 (2d Cir. 1985) (Clean Water Act).

Notwithstanding the importance of citizen suits, the

Act imposes certain restrictions on their commencement

and prosecution, 33 U.SC. §1365(b)1)A)-(B), which

restrictions reflect the fundamental purpose of citizen

suits under the Act: They are ‘‘meant to supplement

rather than to supplant governmental action.’’ Gwaltney,

108 S.Ct. at 383, emphasis added. The citizen suit is

intended as a remedy to pollution of which the

appropriate governmental agencies have knowledge and

which they have taken no meaningful action to abate.

The Purpose of the Act and Its General

Prohibition on Pollution—

33 U.S.C. $1311

The first section of the 1972 amendments to the

Federal Water Pollution Control Act (the ‘Clean Water

Act” or the “Act’) deelares the congressional intent of

the legislation: [T]o restore and maintain the chemical,

physical, and biological integrity of the Nation's waters

fone goal of which is] that the discharge of pollutants

into the navigable waters be eliminated by 1985j.|" 33

U.S.C. §1251(a),(a1). In furtherance of this goal, the Act

A26

makes unlawful the discharge of any pollutants into the

nation’s navigable waters except as authorized by

specified sections of the Act. See 33 U.S.C. $131 1(a).®

The language of §1311(a) is plaintiff's first line of

defense against this motion; on its face it appears to

prohibit any discharge of a pollutant which is not in

compliance with certain other sections of the Act.

Plaintiff argues that §1311(a)’s prohibition certainly

extends to a permit holder's discharge of a pollutant

which is either (i) in excess of the limitation set by the

permit or (ii) not mentioned, i.e., not permitted, by the

permit. Plaintiff's argument relies heavily on a case from

the Northern District of New York, Atlantic States Legal

Foundation v. Reynolds Metals Co., 31 E.R.C. 1156

(1990), in which the court held that a permit holder

violated the Act when it discharged a pollutant (PCBs)

not referenced in its permit. Jd. at 1158. This

interpretation of §1311(a) cannot be sustained, however,

when that section is viewed in the larger context of the

Act itself.

The Purpose of the Act and the

NPDES/SPDES Provision--

33 U.S.C. 1342

Prior to the enactment of the 1972 amendments, the

Clean Water Act had emphasized improving water

quelity rather than preventing water pollution. Water

quality standards had been set

to serve both to guide performance by polluters and

to trigger legal action to abate pollution, ... .

... [These] standards ... focused on the tolerable

effects rather than the preventable causes of water

pollution ....

* Except as in compliance with this section and sections 1312, 1316,

1317, 1328, 1342, and 1344 of this title, the discharge of any

pollutant by any person shall be unlawful.”’

A27

EPA v. California, 426 U.S. 200, 96 S. Ct. 2022, 2023, 48

L.Ed.2d 578 (1976).

The 1972 amendments to the Act were an express

acknowledgement that water quality standards had not

proven effective in eliminating water pollution, /d., 96 S.

Ct. at 2023-24, and

introduced { ] major changes in the methods to set

and enforce standards to abate and control water

pollution. [Direct restrictions on discharge facilitate

enforcement by making it unnecessary to work

backward from an over-polluted body of water to

determine which point sources are responsible and

which must be abated. In addition, a discharger’s

performance is now measured against strict

technology-based [restrictions|—specified levels of

treatment—to which it must conform, rather than

against limitations derived from water quality

standards to which it and other polluters must

collectively conform.

Second, the amendments establish(ed] the

National Pollutant Discharge Elimination System

(NPDES) as a means of achieving and enforcing the

[new restrictions]. Under the NPDES, it is unlawful

for any person to discharge a pollutant without

obtaining a permit and complying with its terms.

An NPDES permit serves to transform generally

applicable [restrictions|—including those based on

water quality—into the obligations (including a

timetable for compliance) of the individual

discharger, and the amendments provide{d] for

direct administrative and judicial enforcement of

permits. Jd., 96 S. Ct. at 2024-2025, citations and

footnotes omitted.

The single most significant change effected in the

Clean Water Act by the 1972 amendments is their

“primary reliance on the NPDES as a means to abate

and control water pollution [which effectively makes

A28

NPDES/SPDES permits] the principal means of

enforcing the [Act's] pollution control and abatement

provisions.” Jd., 96 S. Ct. at 2033. Given this focus on

the SPDES permit, a citizen suit brought against a

permit holder such as Kodak ‘‘will necessarily be brought

[to enforce the permit or a condition thereof and] unless

the plaintiff can show a violation of the permit condition,

violation of [the Act as amended] cannot be established.”’

Id., emphasis added. Thus, I find that Kodak's liability

in this case must be determined in light, not of the Act's

general prohibition of the discharge of pollutants, 33

U.S.C. §131 l(a), but of the conditions of Kodak's SPDES

Permit.’

Atlantic States counters that, even if the alleged

discharges are evaluated solely under Kodak’s Permit,

and not under the general prohibition against the

discharge of pollutants at §1311(a), they constitute a

violation of the Act. Plaintiff's argument is syllogistic:

Every violation of a permit is a violation of the Act;

Kodak violated its Permit when it discharged unlisted

pollutants; therefore, Kodak violated the Act. At the

heart of these motions, then, is the scope of a SPDES

permit under the Act: Whether a permit prohibits only

discharges of pollutants which it expressly restricts and

only when they are discharged in excess of the levels

permitted in the permit, or whether a permit prohibits

every single discharge except those in express

compliance with the limits imposed by the permit. The

Act, its administrative framework, and its legislative

history require the adoption of the former interpretation.

"The SPDES Permit presently in effect at Kodak Park is the permit

issued in October 1984 with an effective date of November 1, 1984.

By its terms, this Permit would have expired Nov. 1, 1989. At that

time, and continuing to date, Kodak's application to renew its permit

is pending, and the 1984 Permit remains in effect.

A29

In relevant part, 33 U.S.C. §1342 provides that a

permit® may be issued

For the discharge of any pollutant, or combination

of pollutants, notwith g $1311(a) of this Title,

upon condition that such discharge will meet either

(A) all applicable requirements under §§1311, 1312,

1316, 1317, 1318, and 1343 of this Title, or (B) prior

to the taking of necessary implementing actions

relating to all such requirements, such conditions as

the administrator determines are necessary to

carrying out the provisions of this Chapter.

33 U.S.C.A. $1342(a\1). (West Supp. 1992).

Thus, the Act expressly authorizes the issuance of a

SPDES permit, “notwithstanding §131l(a) of this

Titlel.[’ (Emphasis added.) While this language of the

statute indicates that discharge of a pollutant by the

holder of a SPDES permit is not to be considered under

§1311(a)’s general prohibition of all discharges of

pollutants, it does not definitively resolve the issue of

the scope of such a permit.

Section 1342 is certainly one more “provision in which

Congress’ limpid prose [does not] put [ | an end to all

dispute.” Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, Inc., 484 U.S. 49, 108 S. Ct. 376, 381,

98 L.Ed.2d 306 (1987) (noting the ambiguity of the

language of 33 U.S.C. $1365, the Clean Water Act citizen

suit provision.) Nevertheless, merely “to acknowledge

ambiguity is not to conclude that all interpretations are

*The Act provides for the issuance of both National Pollution

Discharge Elimination System permits (“NPDES”) and State

Pollution Discharge Elimination System permits (“SPDES’). As

i discussed, Kodak Park is currently operating under a

SPDES permit. Any differences between the permits are not relevant

to this discussion.

A30

equally plausible.” Jd. As_ discussed earlier,

NPDES/SPDES permits are “the principal means of

enforcing the [Clean Water Act's] pollution control and

abatement provisions.’ EPA v. California, 96 S. Ct. at

2033. The Act itself, see 33 U.S.C. §1342, and the

regulations promulgated thereunder, see 40 C.F.R.

$122.41 et seq. (1991), prescribe such detailed and

involved procedure for the establishment of discharge

limits under permits, that it strains all credulity to

propose that Congress, having enacted such detailed

legislation, and having authorized the EPA to adopt

such detailed regulations, could have contemplated that

a discharge by a permit holder of a pollutant never even

referenced in its permit would form the basis of a permit

violation cognizable under the Act's citizen suit

provision. In coming to this conclusion, I acknowledge

that it is nowhere explicitly stated in the Act itself.

Nevertheless, | find that this interpretation comports

not only with the statutory scheme of the Act but also

with its legislative history.

Relevant Legislative History

Senate Report 92-414 discusses at some length the

parameter: of a citizen suit under the Act:

[The citizen suit provision] would not substitute a

‘common law’ or court-developed definition of

water quality. An alleged violation of an effluent

control limitation or standard, (sic) would not

require reanalysis of technological in (sic) other

considerations at the enforcement stage. These

matters will have been settled in the administrative

procedure leading to the establishment of such

effluent control provision. Therefore, an objective

evidentiary standard will have to be met by any

citizen who brings an action under this section.

S. Rep. No. 92-414, 92d Cong., 2d Sess. 1972, reprinted in

1972 U.S.C.C.A.N. 3668, 3745 (1972).

A3l

The Senate Report further provides that:

[wJhether abatement is sought by an agency or by a

citizen, there should be a considerable record

available to the courts and any enforcement

resulting from the Federal and State

administrative standard-setting rocedures.

Consequently, the factual basis for enforcement of

pe ser ney would be available at the time

enforcement is sought, and the issue before the

courts would be a factual one of whether there had

been compliance.

Id. at 3746.

The Senate Report further reflects Congress's

understanding that, ‘‘{ujnder the Bill, citizens themselves

may go to United States District Courts against those

who violate effluent standards or compliance orders.’’ Jd.

at 3677.

There is simply no reconciling this legislative history

with plaintiff's broad interpretation of the permit scheme

as sweeping within its regulation not only those

pollutants which were considered throughout the

administrative procedure of issuing permits, but also any

other discharge of pollutants. See also U.S. v. Hooker

Chemicals and Plastics Corp., 749 F.2d 968, 979-80 (2d

Cir. 1984); State of New York v. U.S., 620 F. Supp. 374,

383-85 (E.D.N.Y. 1985) (citizen suits must concern

violations of standards already established

administratively.)

Relevant Administrative Regulations

Finally, as Kodak vigorously argues, the EPA itself

has recognized that ‘a permittee may discharge a...

pollutant not limited in its permit, and EPA will not be

able to take enforcement action against the permittee as

A32

long as the permittee complies with the notification

requirements of [the regulations]."” 45 Fed. Reg. 33516,

33523 (May 19, 1980). This view is confirmed by various

internal EPA memoranda submitted by Kodak in

support of this motion, and plaintiff has provided no

evidence of any contrary position on the part of the

EPA.

Atlantic States argues that, insofar as this regulation

and the agency internal memoranda would preclude this

citizen suit, they contradict the Clean Water Act on its

face and are accordingly unreasonable and unenforceable.

Atlantic States’s challenge to the reasonableness of the

EPA's position is founded on the Act's general

prohibition against the discharge of pollutants, 33 U.S.C.

131 l(a). As previously discussed, however, the statutory

and regulatory scheme of the Act takes enforcement

actions against permit holders outside that general

prohibition, and I have neither found nor been cited to

any language in the Act or in the applicable case law

which would render unreasonable the EPA's view on this

issue. See Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778,

2781-82, 81 L.Ed.2d 694 (1984).°

*'When a court reviews an agency's construction of the statute

which it administers, it is confronted with two questions. First,

always, is the question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is clear, that is the

end of the matter: for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress. If,

however, the court determines Congress has not directly addressed

the precise question at issue, the court does not simply impose its

own construction on the statute, as would be necessary in the absence

of an administrative interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the question for the

court is whether the agency's answer is based on a permissible

construction of the statute. ... [A] court may not substitute its own

construction of a statutory provision for a reasonable interpretation

made by the administrator of an agency.”

A33

Alternative Bases for Liability Under the Act

Atlantic States alternatively argues that New York

Environmental Conservation Law $17-0815(3) and the

corresponding language in Kodak's SPDES Permit

provide bases for this citizen suit. Section 17-0815(3)

requires New York State SPDES permits to include the

provision that “the discharge of any pollutant not

identified and authorized by such permit ... shall

constitute a violation of the permit{.|’’ General Condition

l(b) of Kodak's SPDES Permit incorporates that

requirement.

Kodak argues, however, that federal regulation

precludes enforcement under the Act and its regulatory

scheme of restrictions which are broader in scope than

federal law requires; that General Condition l(b) of

Kodak's Permit is broader in scope than is required

under the Act; and that General Condition 1(b) is,

therefore, not part of a program enforceable under the

Act. See 40 C.F.R. 123.1(i4241991) (Where ‘‘an approved

State program has greater scope of coverage than

required by Federal law the additional coverage is not

part of the Federally approved program..’’)

Atlantic States counters that the requirements of

N.Y.E.C.L. $17°0815(3) are not broader, but only stricter,

than the express conditions of Kodak’s permit, and that

such stricter enforcement is contemplated by both 33

U.S.C. §1342 and the regulations promulgated

thereunder, see 40 C.F.R. 123.1(i1) (‘Nothing ...

precludes a State from fajdopting or enforcing

requirements which are more stringent or more extensive

than those required under [federal regulation.|"’ Such a

the Act against a permit holder for the. discharge of

pollutants not expressly regulated by such permit, and

A34

not only for the discharge of regulated pollutants in

excess of any limits established either by permit or by

federal law or regulation.

Neither linguistic analysis nor logic supports Atlantic

States’s interpretation of N.Y.E.C.L. §17-0815(3) as

merely a stricter version of the applicable federal law and

regulations. Imposing liability for any discharge of a

pollutant, whether it has been the subject of the

administrative permit procedure or not, would clearly

broaden the parameters of enforcement of a citizen suit

under the Act. That kind of expansion is simply not

cognizable under the Act and the applicable case law.

See McLellan Ecological Seepage Situation (MESS) v.

Weinberger, 707 F. Supp. 1182, 1199 (E.D.Cal. 1988), and

cases cited supra at 14. (Citizen Suits limited to seeking

enforcement of administratively established ‘effluent

standards or limitations.’’)

CONCLUSION

The abatement of all contamination of our precious

water supply by pollutants is the goal of the Clean

Water Act. Congress chose to effect that goal through a

permit system which is founded on the administrative

determination of levels of pollution which are, given our

present state of technological knowledge, acceptable or

unacceptable. Plaintiff's frustration with this system,

and with the level of pollution discharge it continues to

permit, is understandable. Nevertheless, accepting

plaintiff's view of the reach of the Act would effectively

circumvent the permit system and expand the scope of a

citizen suit under the Act; it ““would change the nature

of the citizens’ role from interstitial to potentially

intrusive.’ Gwaltney, 108 S.Ct. at 383. I cannot agree

that Congress intended such a result.

A35

WHEREFORE, plaintiff's motion for partial summary

judgment is denied; defendant’s cross-motion for

summary judgment is granted; this case is dismissed.

ALL OF THE ABOVE IS SO ORDERED.

MICHAEL A. TELESCA

Michael A. Telesca

United States District Judge

DATED: Rochester, New York

December 28, 1992

A36

Judament by Court Clerk Dismissing th» Action,

Filed on December 28, 1992

CASE NUMBER: 91-CV-6471T

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ATLANTIC STATES LEGAL FOUNDATION, INC.,

[ ]

[xx]

Vv.

EASTMAN KODAK COMPANY.

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before

the Court for a trial by jury. The _ issues

have been tried and the jury has rendered its

verdict.

Decision by Court. This action came

to -triat or hearing before the Court. The issues

have been -tried—or heard and a decision has

been rendered.

IT IS ORDERED AND ADJUDGED that this case is

dismissed.

December 28, 1992 Rodney C. Early

Date Clerk

LEIGH ANN LESTER

Leigh Ann Lester

(By) Deputy Clerk

‘

33 usc § 1251

Congressional declaration of goals and

policy

(a) Restoration and maintenance of

chemical, physical and biological

integrity of Nation's waters;

national goals for achievement of

objective.

The objective of this Act is to

restore and maintain the chemical,

physical, and biological integrity of the

Nation's waters. In order to achieve this

objective it is hereby declared that,

consistent with the provisions of this

Act

(1) it is the national goal that the

discharge of pollutants into the

navigable waters be eliminated by 1985;

(2) it is the national goal that

wherever attainable, an interim goal of

water quality which provides for the

protection and propagation cf fish,

shellfish, and wildlife and provides for

A38

recreation in and on the water be

achieved by July 1, 1983;

(3) it is the national policy that

the discharge of toxic pollutants in

toxic amounts be prohibited;

(4) it is the national policy that

Federal financial assistance be provided

to construct publicly owned waste

treatment works;

(5) it is the national policy that

areawide waste treatment management

planning processes be developed and

implemented to assure adequate control of

sources of pollutants in each State;

(6) it is the national policy that a

major research and demonstrietion effort

be made to develop technology necessary

to eliminate the discharge of pollutants

into the navigable waters, waters of the

contiguous zone, and the oceans; and

Tite or eke aA ES

A39

(7) it is the national policy that

programs for the control of nonpoint

sources of pollution be developed and

implemented in an expeditious manner so

as to enable the goals of this Act t> be

met through the control of both point and

nonpoint sources of pollution.

(b) Congressional recognition,

preservation, and protection of

primary responsibilities and rights

of States.

It is the policy of the Congress to

recognize, preserve, and protect the

primary responsibilities and rights of

States to prevent, reduce, and eliminate

pollution, to plan the development and

use (including restoration, preservation,

and enhancement) of land and water

resources, and to consult with the

Administrator in the exercise of his

authority under this Act. It is the

A40

policy of Congress that the States manage

the construction grant program under this

Act and implement the permit programs

under sections 402 and 404 of this Act

(33 USC §§ 1342, 1344]. It is further the

policy of the Congress to support and aid

research relating to the prevention,

reduction, and elimination of pollution,

and to provide Federal technical services

and financial aid to State and interstate

agencies and municipalities in connection

with the prevention, reduction, and

elimination of pollution.

e 8 7

(e) Public participation in development,

revision, and enforcement of any

regulation, etc.

Public participation in the

development, revision, and enforcement of

any regulation, standard, effluent

limitation, plan, or program established

‘4

A4l

by the Administrator or any State under

this Act shall be provided for,

encouraged, and assisted by the

Administrator and the States. The

Administrator, in cooperation with the

States, shall develop and publish

regulations specifying minimum guidelines

for public participation in such

processes.

* *« &

33 USC § 1311. Effluent limitations

(a) Illegality of pollutant discharges

except in compliance with law.

Except as in compliance with this

section and sections 302, 306, 30/7, 318,

402, and 404 of this Act [33 USC §§1312,

1316, 1317, 1328, 1342, 1344], the

discharge of any pollutant by any person

shall be unlawful.

A42

(b) Timetable for achievement of

objectives.

In order to carry out the objective

of this Act there shall be achieved--

(1) (A) not later than July 1, 1977,

effluent limitations for point sources,

other than publicly owned treatment

works, (1) which shall require the

application of the best practicable

control technology currently available as

defined by the Administrator pursuant to

section 304(b) of this Act [33 USC

§1314(b)], or (ii) in the case of a

discharge into a publicly owned treatment

works which meets the requirements of

subparagraph (B) of this paragraph, which

shall require compliance with any

applicable pretreatment requirements and

any requirements under section 307 of

this Act [33 USC $1317]; and

x *« *

AAZ3

1977, any more stringent limi‘.ation,

including those necessary to meet water

quality standards, treatment standards,

or schedules of compliance, established

pursuant to any State law or regulations

(urder authority preserved by section 510

(33 USC §1370]) or any other Federal law

or regulation, or required to implement

any applicable water quality standard

established pursuant to this Act.

(2) (A) for pollutants identified in

subparagraphs (C), (D), and (F) of this

paragraph, effluent limitations for

categories and classes of point sources,

other than publicly owned treatment

works, which (i) shall require

application of the best available

technology economically achievable for

such category or class, which will result

in reasonable further progress toward the

A44

national goal of eliminating the

discharge of all pollutants, as

determined in accordance with regulations

issued by the Administrator pursuant to

section 304(b) (2) of this Act [33 USC

§1314(b) (2)], which such effluent

limitations shall require the elimination

of discharges of all pollutants if the

Administrator finds, on the basis of

information available to him (including

information developed pursuant to section

315 (33 USC $1325}), thet Suen

elimination is technologically and

economically achievable for a category or

class of point sources as determined in

accordance with regulations issued by the

Administrator pursuant to section

304(b) (2) of this Act [33 USC

§1314(b) (2)], or (ii) in the case of the

introduction of a pollutant into a

publicly owned treatment works which

A45

meets the requirements of subparagraph

(B) of this paragraph, shall require

compliance with any applicable

pretreatment requirements and any other

requirement under section 307 of this Act

[33 USC $131 7/7)3

(B) [Repealed]

pollutants referred to in table 1 of

Committee Print Numbered 95-30 of the

Committee on Public Works and

Transportation of the House of

Representatives compliance with effluent

limitations in accordance with

Subparagraph (A) of this paragraph as

expeditiously as practicable but in no

case later than three years after the

date such limitations are promulgated

under section 304(b) [33 USC § 1314(b)],

and in no case later than March 3l, 1989;

A46

(D) for all toxic pollutants

listed under paragraph (1) of subsection

(a) of section 307 of this Act which are

not referred to in subparagraph (C) of

this paragraph compliance with effluent

limitations in accordance with

Subparagraph (A) of this paragraph as

expeditiously as practicable, but in no

case later than three years after the

date such limitations are promulgated

under section 304(b) [33 USC §1314(b)],

and in no case later than March 31, 1989;

‘~E) as expeditiously as

practicable but in no case later than

three years after the date such

limitations are promulgated under section

304(b) [33 USC §1314(b)], and in no case

later than March 31, 1989, compliance

with effluent limitations for categories

and classes of point sources, other than

publicly owned treatment works, which in

: = |

AA7

the case of pollutants identified

pursuant to section 304 (a) (4) of this Act

(33 USC § 1314(a) (4)] shall require

application of the best conventional

pollutant control technology as

determined in accordance with regulations

issued by the Administrator pursuant to

section 304(b) (4) of this Act [33 USC §

1314(b) (4) J]; and

(F) for all pollutants (other

than those subject to subparagraphs (C),

(D), or (E) of this paragraph) compliance

with effluent limitations in accordance

with subparagraph (A) of this paragraph

as expeditiously as practicable but in no

case later than 3 years after the date

such limitations are established, and in

no case later than March 31, 1989.

(3) (A) for effluent limitations

under paragraph (1) (A) (i) of this

subsection promulgated after January l,

A48

1982, and requiring a level of control

substantially greater or based on

fundamentally different control

technology than under permits for an

industrial category issued before such

date, compliance as expeditiously as

practicable but in no case later than

three years after the date such

limitations are promulgated under section

304(b) [33 USC §1314(b)], and in no case

later than March 31, 1989; and

(B) for any effluent limitation

in accordance with paragraph (1) (A) (i),

(2) (A) (i), or (2) (E) of this subsection

established only on the basis of section

402(a) (1) [33 USC §1342(a)(1)] ina

permit issued after enactment of the

Water Quality Act of 1987 [enacted Feb.

4, 1987], compliance as expeditiously as

practicable but in no case later than

three years after the date such

€x.

A49

limitations are established, and in no

case later than March 31, 1989.

The Administrator may modify the

requirements of subsection (b) (2) (A) of

this section with respect to any point

source for which a permit application is

filed after July 1, 1977, upon a showing

by the owner or operator of such point

source satisfactory to the Administrator

that such modified requirements (1) will

represent the maximum use of technology

within the economic capability of the

owner or operator; and (2) will result in

reasonable further progress toward the

elimination of the discharge of

pollutants.

A50

(e) All point discharge source

application of effluent limitations.

Effluent limitations established

pursuant to this section or section 302

of this Act [33 USC §1312] shall be

applied to all point sources of discharge

of pollutants in accordance with the

provisions of this Chapter.

33 § 1314. Information and Guidelines

procedures

The Administrator, after

consultation, with appropriate Federal

and State agencies and other interested

persons, shall issue to the States and

appropriate water pollution control

agencies within 270 days after October

18, 1972 (and from time to time

thereafter) information on the processes,

procedures, or operating methods which

result in the elimination or reduction of

the discharge of pollutants to implement

A51

standards of performance under section

1316 of this title. Such information

shall include technical and other data,

including costs, as are available on

alternative methods of elimination or

reduction of the discharge of pollutants.

Such information, and revisions thereof,

shall be published in the Federal

available to the public.

, 33 USC § 1312. Water quality related

| effluent limitations

(a) Establishment.

Whenever, in the idgment of the

Administrator or as identified under

section 304 (1) (33 USC $1314 Lyi,

discharges of pollutants from a point

source or group of point sources, with

the application of effluent limitations

A52 |

with the attainment or maintenance of

that water quality in a specific portion

of the navigable waters which shall

assure protection of public health,

public water supplies, agricultural and

industrial uses, and the protection and

propagation of a balanced population of

shellfish, fish and wildlife, and allow

recreational activities in and on the

water, effluent limitations (including

alternative effluent control strategies)

for such point source or sources shall be

established which can reasonably be

expected to contribute to the attainment

Or maintenance of such water quality.

(b) Modifications of effluent

limitations.

(2) Permits.

(A) No reasonable relationship.

aa einen

A53

The Administrator, with the

concurrence of the State, may issue a

permit which modifies the effluent

limitations required by subsection (a) of

this section for pollutants other than

toxic pollutants if the applicant

demonstrates at such hearing that

(whether or not technology or other

alternative control strategies are

available) there is no reasonable

relationship between the economic and

social costs and the benefits to be

obtained (including attainment of the

objective of this Act) from achieving

such limitation.

x *« ®

limitations.

The establishment of effluent

limitations under this section shall not

operate to delay the application of any

A54

effluent limitation established under

section 301 of this Act [33 USC §131l].

33 USC § 1312. Water quality related

effluent limitations

(June 30, 1948, ch 758, Title III, §302,

as added Oct. 18, 1972, P. L. 92-500, §2,

86 Stat. 846.)

(As amended Feb. 4, 1987, P. L. 100-4,

Title III, $308(e), 101 Stat. 39.)

33 U.S.C. 1342 National pollutant

discharge elimination system

x* * *

(a) Permits for discharge of pollutants

(1) Except as provided in sections

1328 and 1344 of this title, the

Administrator may, after opportunity for

public hearing, issue a permit for the

discharge of any pollutant, or

combination of pollutants,

notwithstanding section 13ll(a) of this

title, upon condition that such discharge

BAST

A55

will meet either (A) all applicable

requirements under sections 1311, 1312,

1316, 1317, 1318, and 1343 of this title,

or (B) prior to the taking of necessary

implementing actions relating to all such

requirements, such conditions as the

Administrator determines are necessary to

carry out the provisions of this chapter.

(b) State permit programs

At any time after the promulgation

of the guidelines required by subsection

(i) (2) of section 1314 of this title, the

Governor of each State desiring to

administer its own permit program for

discharges into navigable waters within

its jurisdiction may submit to the

Administrator a full and complete

description of the program it proposes to

establish and administer under State law

Or under an interstate compact. In

addition, such State shall submit a

A56

statement from the attorney general (or

the attorney for those State water

pollution control agencies which have

independent legal counsel), or from the

chief legal officer in the case of an

interstate agency, that the laws of such

State, or the interstate compact, as the

case may be provide adequate authority to

carry out the described program. The

Administrator shall approve each such

submitted program unless he determines

that adequate authority does not exist:

(1) To issue permits which --

(A) apply, and insure

compliance with, any applicable

requirements of sections 1311, 1312,

1316, 1317, and 1343 of this title;

(B) are for fixed terms not

exceeding five years; and

A57

modified for cause including, but not

limited to, the following:

(i) violation of any

condition of the permit;

(ii) obtaining a permit by

misrepresentation, or failure to disclose

fully all relevant facts;

(iii) change in any

condition that requires either a

temporary or permanent reduction or

elimination of the permitted discharge;

(D) control the disposal of

pollutants into wells;

(2) (A) To issue permits which

apply, and insure compliance with, all

applicable requirements of section 1318

of this title; or

(B) To inspect, monitor, enter, and

require reports to at least the same

A58

extent as required in section 1318 of

this title;

(3) To insure that the public, and

any other State the waters of which may

be affected, receive notice of each

application for a permit and to provide

an opportunity for public hearing before

a ruling on each such application;

(4) To insure that the

Administrator receives notice of each

application (including a copy thereof)

for a permit;

(5S) To insure that any State (other

than the permitting State), whose waters

may be affected by the issuance of a

permit may submit written recommendations

to the permitting State (and the

Administrator) with respect to any permit

application and, if any part of such

written recommendations are not accepted

by the permitting State, that the

— so

—

ae eee ee ae a

fae

— Se

A59

permitting State will notify such

affected State (and the Administrator) in

writing of its failure to so accept such

recommendations togetner wi th its reasons

for so doing;

(6) To insure that no permit will

be issued if, in the judgment of the

Secretary of the Army acting through the

Chief of Engineers, after consultation

with the Secretary of the department in

which the Coast Guard is operating,

anchorage and navigation of any of the

navigable waters would be substantially

impaired thereby,

(7) To abate violations of the

permit or the permit program, including

civil and criminal penalties and other

—_

ways and means of enforcement;

(8) To insure that any permit tor a

discharge from a publicly owned treatment

works includes conditions to require the

A60

identification in terms of character and

volume of pollutants of any significant

source introducing pollutants subject to

pretreatment tandards under section

L317 (tk of this title into such works and

a program to assure compliance with such

pretreatment standards by each such

source, in addition to adequate notice to

the permitting agency of (A) new

—. a: SAD 5 _* ‘ 7... ~

LNntCroauctlilons int S uf h works of

pollutants from any source which would be

a new source a iefined in section 1316

Or tnis : irce were

Jischarg ints, B new

introducti . _lutants into such

works from a irce which would be

subject t ection 1311 of this title if

}

cr?

;

uch pollutants, or

Cc) a@ substantial change in volume or

character of pollutants being introduced

‘Ss by a source introducing

nrTr c ~~, LJ Yr <

a1 h WOT K

A61

pollutants into such works at the time of

issuance of the permit ‘ Such notice

chall include information on the quality

a oe . }

i! j Jual t r / f f i 1}eT f r } if i A\A i

nt ich treatment WOrr mda any

ni r,t r +} ry - y

4 int pated impa t i ] na J

; £ aa

d / ar? , ee vr) sf ¢ » * / a 1 ar? - 7 re

: jUanti y r {Uuail j I rriueti De

discharged from such publicly owned

wilco. *

treatment works; and

; (9) To insure that any industria:

t A er of if / Pp Ii AG 2 f OW! ed C reatment

; , ;

works will comply with sections 1284(bD),

L3l/, and 1318 Ol tnis titie.

* * ®

(k) Compliance with permits

Compliance with a permit issued

pursuan to this section snail De leemecd

i compliance, for purposes 5f sections 1519

;

4 9

”

1311, 1312, 1316, 1317, and 1343 Of CALS

—

WwW

—

“i

(Dd

‘?

A62

section 1317 of this title for a toxic

pollutant injurious to human health.

Until December 31, 1974, in any case

where a permit for discharge has been

applied for pursuant to this section, but

final administrative disposition of such

application has not been made, such

discharge shall not be a violation of (1)

section 1311, 1316, or 1342 of this

title, or (2) section 407 of this title,

unless the Administrator or other

plaintiff proves that final

administrative disposition of such

application has not been made because of

the failure of the applicant to furnish

information reasonably required or

requested in order to process the

application. For the 180-day period

beginning on October 18, 1972, in the

case of any point source discharging any

pollutant or combination of pollutants

A63

immediately prior to such date which

source is not subject to section 407 of

this title, the discharge by such source

shall not be a yiolation of this chapter

if such a source applies for a permit for

discharge pursuant to this section within

such 180-day period.

32 U.S.C. 1362(6) & (12) Definitions

(6) The term "pollutant" means

dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological

materials, radioactive materials, heat,

wrecked Or discarded equipment, rock,

sand, cellar dirt and industrial,

municipal, and agricultural waste

discharged into water. This term does

not mean (A) "sewage from vessels" within

the meaning of section 1322 of this

title; or (B) water, gas, OF other

material which is injected into 4 well to

A64

facilitate production of oil or gas, or

water derived in association with oil or

gas production and disposed of ina well,

if the well used either to facilitate

production or for disposal purposes is

approved by authority of the State in

which the well is located, and if such

State determines that such injection or

disposal will not result in the

degradation of ground or surface water

resources.

(12) The term "discharge of a

pollutant” and the term "discharge of

pollutants" each means (A) any addition

of any pollutant to navigable waters from

any point source, (B) any addition of any

pollutant to the waters of the contiguous

zone or the ocean from any point source

other than a vessel or other floating

eractt.

A65

33 U.S.C. 1365(a) Citizen Suits

(a) Authorization; jurisdiction

Except as provided in subsection (b)

of this section and section 1319(g) (6) of

this title, any citizen may commence a

Civil action on his own behalf --

(1) against any person (including

(1) the United States, and (ii) any other

governmental instrumentality or agency to

the extent permitted by the eleventh

amendment to the Constitution) who is

alleged to be in violation of (A) an

effluent standard or limitation under d

this chapter or (B) an order issued by

the Administrator or a State with respect

to such a standard or limitation, or

(2) against the Administrator where

there is alleged a failure of the

Administrator to perform any act or duty

under this chapter which is not

discretionary with the Administrator.

A66

The district courts shall have

jurisdiction, without regard to the

amount in controversy or the citizenship

of the parties, to enforce such an

effluent standard or limitation, or such

an order, or to order the Administrator

to perform such act or duty, as the case

may be, and to apply any appropriate

Civil penalties under section 1319(d) of

this title.

33 U.S.C. 1365(f)

(f) Effluent standard or limitation

For purposes of this section, the

term "effluent standard or limitation

under this chapter" means (1) effective

July 1, 1973, an unlawful act under

subsection (a) of section 1311 of this

title; (2) an effluent limitation or

other limitation under section 1311 or

1312 of this title; (3) standard of

performance under section 1316 of this

A67

title; (4) prohibition, effluent standard

or pretreatment standards under section

1317 of this title; (5) certification

under section 1341 of this title; or (6)

a permit or condition thereof issued

under section 1342 of this title, which

is in effect under this chapter

(including a requirement applicable by

reason of section 1323 of this title).

33 § 1370. State authority

Except as expressly provided in this

chapter, nothing in this chapter shall

(1) preclude or deny the right of any

State or political subdivision thereof or

interstate agency to adopt or enforce (A)

any standard or limitation respecting

discharges of pollutants, or (B) any

requirement respecting control or

abatement of pollution; except that if an

effluent limitation, or other limitation,

effluent standard, prohibition,

Se a a,

ic aa

A68

pretreatment standard, or standard of

performance is in effect under this

chapter, such State or political

subdivision or interstate agency may not

adopt or enforce any effluent Limitation,

or other limitation, effluent standard,

prohibition, pretreatment standard, or

standard of performance which is less

stringent than the effluent limitation,

or other limitation, effluent standard,

prohibition, pretreatment standard, or

tandard of performance under this

chapter; or (2) be construed as impairing

Or in any manner affecting any right or

jurisdiction of the States with respect

he waters (including boundary waters

(June 30, 1948, c. /58, Title V, §$ 510,

18, 1972, Publ.L. 92-500, §

—

2, 86 State. 893.)

A69

ENVIRONMENTAL CONSERVATION LAW

§ 17-0815. SPDES permits; additional

terms and conditions

SPDES permits shall include the

following provisions, terms, requirements

and conditions;

he that all discharges authorized

by the permit shall be consistent with

the provisions, terms, requirements and

conditions of such permit.

Le that facility expansions,

production increases or process

modifications by the permittee which

result in new or increased discharges of

pollutants into the waters of the state

shall be reported by the permittee by

submission of a new SPDES application.

: that the discharge of any

pollutant not identified and authorized

by such permit or the discharge of any

pollutant more frequently than or at a

nea ae Se

epemenananyee: wine eee area

PA i

A70

level in excess of that permitted by such

permit shall constitute a violation of

the terms of the permit.

: =F

40 CFR § 122.4 Prohibitions

(applicable to State NPDES programs, see

S 123.25).

No permit may be issued:

(a) When the conditions of the

permit do not provide for compliance with

the applicable requirements of CWA, or

regulations promulgated under CWA;

(b) When the applicant is required

to obtain a State or other appropriate

certification under section 401 of CWA

and § 124.53 and that certification has

ot been obtained or waived;

Regional Administrator has objected to

issuance of the permit under § 123.44;

(d) When the imposition of

conditions cannot ensure compliance with

A71

the applicable water quality requirements

of ali affected States;

(e) When, in the judgment of the

Secretary, anchorage and navigation in or

on any of the waters of the United States

would be substantially impaired by the

discharge;

(f) For the discharge of any

radiological, chemical, or biological

warfare agent or high-level radioactive

waste;

(g) For any discharge inconsistent

with a plan or plan amendment approved

under section 208(b) of CWA;

(_h) For any discharge to the

territorial sea, the waters of the

contiguous zone, or the oceans in the

following circumstances:

(1) Before the promulgation of

guidelines under section 403(c) of CWA

(for determining degradation of the

A72

waters of the territorial seas, the

contiguous zone, and the oceans) unless

the Director determines permit issuance

to be in the public interest; or

(2) After promulgation of guidelines

under section 403(c) of CWA, when

insufficient information exists to make a

reasonable judgment whether the discharge

complies with them.

1) To a new source or a new

discharger, if the discharge from its

construction or operation will cause or

contribute to the violation of water

quality standards. The owner or operator

of a new source or new discharger

proposing to discharge into a water

segment which does not meet applicable

water quality standards or is not

expected to meet those standards even

after the application of the effluent

ions required by sections

Pe AS I A ee Re. Ay eh) er eae ed ce

Ree

A73

301 (b) (1) (A) and 301 (b) (1) (B) of CWA, and

for which the State or interstate agency

has performed a pollutants load

allocation for the pollutant to be

discharged, must demonstrate, before the

Close of the public comment period, that:

(1) There are sufficient remaining

pollutant load allocations to allow for

the discharge; and

(2) The existing dischargers into

that segment are subject to compliance

schedules designed to bring the segment

into compliance with applicable water

quality standards.

(48 FR 14153, Apr. 1, 1983, as

amended at 50 FR 6940, Feb. 19, 1985]

40 CFR § 122.41 Conditions applicable to

all permits

(applicable to State programs, see §

823,29) «

The following conditions apply to all

NPDES permits. Additional conditions

A74

applicable to NPDES permits are in §

122.42. All conditions applicable to

NPDES permits shall be incorporated into

the permits either expressly or by

reference. If incorporated by reference,

a specific citation to these regulations

must be given in the permit.

(a) Duty to comply. The permittee

must comply with all conditions of this

permit. Any permit noncompliance

constitutes a violation of the Clean

Water Act and is grounds for enforcement

action; for permit termination,

revocation and reissuance, or

modification; or denial of a permit

renewal application.

(b) Duty to reapply. If the

permittee wishes to continue an activity

reguiated by this permit after the

expiration date of this permit, the

A75

permittee must apply for and obtain a new

permit.

not a defense. It shall not be a defense

for a permittee in an enforcement action

that it would have been necessary to halt

or reduce the permitted activity in order

to maintain compliance with the

conditions of this permit.

40 CFR § 122.41 Conditions applicable to

all permits

(applicable to State programs, see §

b2ae80) «

x* &

(f) Permit actions. This permit may

be modified, revoked and reissued, or

terminated for cause. The filing of a

request by the permittee for a permit

modification, revocation and reissuance,

or termination, or a notification of

planned changes or anticipated

A76

noncompliance does not stay any permit

condition.

(g) Property rights. This permit

does not convey any property rights of

any sort, or any exclusive privilege.

(h) Duty to provide information. The

permittee shall furnish to the Director,

within a reasonable time, any information

which the Director may request to

determine whether cause exists for

modifying, revoking and reissuing, or

terminating this permit or to determine

compliance with this permit. The

permittee shall also furnish to the

Director upon request, copies of records

required to be kept by this permit.

Se @ @

(1) Reporting requirements. (1)

Planned changes. The permittee shall give

notice to the Director as soon as

possible of any planned physical

es Ft ee ee Et eS ee ey ae OP eee ee a re af —_—

3 ¢ % > =}

A77

alterations or additions to the permitted

facility.

Notice is required only when:

(i) The alteration or addition to a

permitted facility may meet one of the

criteria for determining whether a

facility is a new source in § 122.29(b);

(ii) The alteration or addition

could significantly change the nature or

increase the quantity of pollutants

discharged.

This notification applies to

pollutants which are subject neither to

effluent limitations in the permit, nor

to notification requirements under §

122.42(a) (1).

(iii) The alteration or addition

results in a significant change in the

permittee's sludge use or disposal

practices, and such alteration, addition,

A78

or change may justify the application of

permit conditions that are different from

or absent in the existing permit,

including notification of additional use

or disposal sites not reported during the

permit application process or not

reported pursuant to an iereved land

application plan;

e @ @

(Information collection requirements are

approved by the Office of Management and

Budget under control number 2040-0004,

2040-0110 and 2040-0068)

(Clean Water Act (33 U.S.C. 1251 et

seq.), Safe Drinking Water Act (42 U.S.C.

300f et seq.), Clean Air Act (42 U.S.C.

7401 et seq.), Resource Conservation and

Recovery Act (42 U.S.C. 6901 et seq.))

{48 FR 14153, Apr. 1, 1983, as

amended at 48 FR 39620, Sept.

A79

1, 1983; 49 FR 38049, Sept. 26,

1984; 50 FR 4514, Jan. 31, 1985; 50 FR

6940, Feb. 19, 1985; 54 FR 255, Jan. 4,

1989; 54 FR 18783, May 2, 1989]

Effective Date Note: Information

collection requirements in paragraph

(1) (1) have not been approved by the

Office of Management and Budget, and are

not effective, pending OMB approval.

40 CFR § 122.41 Conditions applicable to

all permits (applicable to State

programs, see § 123.25).

40 CFR § 123.1 Purpose and scope.

(a) This part specifies the

procedures EPA will follow in approving,

revising, and withdrawing State programs

and the requirements State programs must

meet to be approved by the Administrator

under sections 318, 402, and 405

(National Pollutant Discharge Elimination

System-NPDES) of CWA.

A80

(b) These regulations are

promulgated under the authority of

sections 304(i), 10l(e), 405, and 518 (e)

of the CWA, and implement the

requirements of those sections.

State programs which conform to the

applicable requirements of this part. A

State NPDES program will not be approved

by the Administrator under section 402 of

CWA unless it has authority to control

the discharges specified in sections 318

and 405(a) of CWA. Permit programs under

sections 318 and 405(a) will not be

approved independent of a section 402

program. (Permit programs under section

405(f) of CWA (sludge management

programs) may be approved under 40 CFR

part 501 independently of a section 402

permit program.)

ee ae Le | a ee a

A81

(d) (1) Upon approval of a State

program, the Administrator shall

suspend the issuance of Federal permits

for those activities subject to the

approved State program. After program

approval EPA shall retain jurisdiction

over any permits (including general

permits) which it has issued unless

arrangements have been made with the

State in the Memorandum of Agreement for

the State to assume responsibility for

these permits. Retention of jurisdiction

Shall include the processing of any

permit appeals, modification requests, or

variance requests; the conduct of

inspections, and the receipt and review

of self-monitoring reports. If any permit

appeal, modification request or variance

request is not finally resolved when the

federally issued permit expires, EPA may,

with the consent of the State, retain

A82

jurisdiction until the matter is

resolved.

x * *&

(f) Any State program approved by

the Administrator shall at all times be

conducted in accordance with the

requirements of this part.

(g) (1) Except as may be authorized

pursuant to paragraph (g) (2) of this

section or excluded by § 122.3, the State

program must prohibit all point source

discharges of pollutants, all discharges

into aquaculture projects, and all

disposal of sewage sludge which results

in any pollutant from such sludge

entering into any waters of the United

States within the State's jurisdiction

except as authorized by a permit in

effect under the State program or under

section 402 of CWA. NPDES authority may

be shared by two or more State agencies

A83

but each agency must have Statewide

jurisdiction over a class of activities

or discharges. When more than one agency

is responsible for issuing permits, each

agency must make a submission meeting the

requirements of § 123.21 before EPA will

begin formal review.

x* * *

(i) Nothing in this part precludes a

State from:

(1) Adopting or enforcing

requirements which are more stringent or

more extensive than those required under

this part;

40 CFR § 123.1 Purpose and scope.

(2) Operating a program with a

greater scope of coverage than that

required under this part. If an approved

State program has greater scope of

coverage than required by Federal law the

A84

additional coverage is not part of the

Federally approved program.

Note: For example, if a State

requires permits for discharges into

publicly owned treatment works, these

permits are not NPDES permits.

[48 FR 14178, Apr. l, 1983, as

amended at 54 FP 256, Jan. 4, 1989; 54 FR

18784, May 2, 1989]

40 CFR § 123.25 Requirements for

permitting.

(a) All State Programs under this

part must have legal authority to

implement each of the following

provisions and must be administered in

conformance with each, except that a

State which chooses not to administer a

sludge management program pursuant to

section 405(f) of the CWA as part of its

NPDES program is not required to have

legal authority to implement the portions

i ‘al

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of the following provisions which were

promulgated after the enactment of the

Water Quality Act of 1987 (Pub. L. 100-4)

and which govern sewage Sludge use and

disposal. In all cases, States are not

precluded from omitting or modifying any

provisions to impose more stringent

requirements:

(1) § 122.4-(Prohibitions) :

(2) § 122.5(a) and (b)-(Effect of

permit);

(3) § 122.7(b) and (c)-(Confidential

information) ;

(4) $122.21 (a)-(b), (c) (2), (e)-

(k), and (m)-(p)-(Application for a

permit);

(S) § 122.22-(Signatories) ;

(6) § 122.23-(Concentrated animal

feeding operations) ;

(7) § 122.24-(Concentrated aquatic

animal production facilities) ;

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(8) § 122.25-(Aquaculture projects);

(9) § 122.26-(Storm water

discharges);

(10) § 122.27-(Silviculture) ;

(11) § 122.28-(General permits),

Provided that States which do not seek to

implement the general permit program

under § 122.28 need not do so.

(12) Section 122.41-(Applicable

permit conditions) (Indian Tribes can

satisfy enforcement authority

requirements under § 123.34).

(13) § 122.42-(Conditions applicable

to specified categories of permits);

(14) § 122.43-(Establishing permit

conditions) ;

(15) § 122.44-(Establishing NPDES

permit conditions);

(16) § 122.45-(Calculating permit

conditions) ;

(17) § 122.46-(Duration);

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(18) § 122.47(a)-(Schedules of

compliance) ;

(19) § 122.48- (Monitoring

requirements) ;

(20) § 122.50-(Disposal into wells);

(21) § 122.61-(Permit transfer) ;

(22) § 122.62-(Permit modification);

(23) § 122.64-(Permit termination) ;

(24) § 124.3(a)-(Application for a

permit);

(25) § 124.5 (a), (c), (d), and (f)-

(Modification of permits);

(26) § 124.6 (a), (c), (d), and (e)-

(Draft permit);

(27) § 124.8-(Fact sheets) ;

(28) § 124.10 (a) (1) (ii),

(a) (1) (iii), (a) (1) (v), (b), (c), (da),

and (e)-(Public notice);

(29) § 124.11-(Public comments and

requests for hearings) ;

(30) § 124.

and

(31) § 124.

to comments) ;

(32) § 124

(33) § 124.

(34) § 124.

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12(a)-(Public hearings);

17 (a) and (c)-(Response

.56-(Fact sheets);

57(a)-(Public notice);

59-(Comments from

government agencies) ;

(35) § 124.62-(Decision on

variances);

(36) Subparts A, B, C, D, H, I, J, K

and L of part 125; and

(37) 40 CFR parts 129, 133,

subchapter N and 40 CFR part 503.

Note: States need not implement

provisions identical to the above listed

provisions: Implemented provisions must,

however, establish requirements at least

as stringent as the corresponding listed

provisions. While States may impose more

stringent requirements, they may not make

— ee ae — as

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one requirement more lenient as a

tradeoff for making another requirement

more stringent; for example, by requiring

that public hearings be held prior to

issuing any permit while reducing the

amount of advance notice of such a

hearing.

State programs may, if they have

adequate legal authority, implement any

of the provisions of parts 122 and 124.

See, for example, § 122.5(d)

(continuation of permits) and § 124.4

(consolidation of permit processing).

For example, a State may impose more

stringent requirements in an NPDES

program by omitting the upset provision

of § 122.41 or by requiring more prompt

notice of an upset.

(b) State NPDES programs shall have

an approved continuing planning process

under 40 CFR 35.1500 and shall assure

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that the approved planning process is at

all times consistent with CWA.

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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.