# Petition for Writ of Certiorari — Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0981%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 811 ## Text ‘\) ae No. 931839 may 18 0M 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. ii 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 11 17 18 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 CAROUSE 6 occ sha bea scien meee weeet 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 14 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 15 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. 16 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 17 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 18 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) 19 (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 + } \« . 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 | i j 3 : } 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 36 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, § 37 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). 38 ™ 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). 41 a 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 43 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 45 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 47 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 48 | 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 49 : ; / : : 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- Al 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 A2 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 ee ok 4 a BOM A ID, Lik the CR cab stalls a Ce ee A3 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 A4 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 | i, A5 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 A6 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 A7 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 A8 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 ay 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 A9 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. - 3 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). a 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 q i ‘ 8 A 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 8 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 (C) not later than July i, 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] (C) with respect to all toxic 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. (c) Modification of timetable. 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 (c) Pollution discharge elimination 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 Register and otherwise shall be made 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 *« ® (c) Delay in application of other 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 (C) can be terminated or 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 sy introducti . _lutants into such works from a irce which would be subject t ection 1311 of this title if } cr? mM | tv {2 ; in f , a r~ i , * Ad i uch pollutants, or Cc) a@ substantial change in volume or character of pollutants being introduced ‘Ss by a source introducing nrTr c ~~, LJ Yr =} 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); or (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. (c) The Administrator shall approve 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 A85 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) ; A86 (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); A87 (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. A88 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 A89 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 A90 that the approved planning process is at all times consistent with CWA. x* * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0981%3A1. Public record. Not legal advice.