# Opposition Brief — Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 811

## Text

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/ gUR 17 1994
No. 93-1839 ue
Seen aie taaie “oe eemaeed
IN THE

Supreme Court of the United States

Ocroser TerM, 1993

ATLANTIC STATES LEGAL FOUNDATION, INC.,

Petitioner,
vs.
EASTMAN KODAK COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

Puitie H. GITLeN

Counsel of Record

WHITEMAN OSTERMAN & HANNA
Attorneys for Respondent

One Commerce Plaza

Albany, New York 12260

(518) 487-7600

Of Counsel:
ELIZABETH M. Morss

QUESTIONS PRESENTED

I. Does the Clean Water Act prohibit the discharge of
pollutants not specifically limited in a facility’s National/State
Pollutant Discharge Elimination System permit?

II. Can a citizen suit under the Clean Water Act be premised
solely upon a provision of a state permit program which pro-
hibits the discharge of pollutants not specifically limited in a
state permit, where that provision lacks a counterpart in federal
law and is therefore broader than federal law?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.1 of the Rules of the Supreme Court of
the United States, Defendant-Respondent Eastman Kodak Com-
pany discloses that the following companies are subsidiaries and
affiliates of Eastman Kodak Company that have issued shares
to the public:
India Photographic Company Limited
Nippon System House Co., Ltd.
Sterling Products (Ghana) Ltd.

Sterling Products (Nigeria) Ltd.

Sterling Products Pakistan (Private) Ltd.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..-----------* °°"
CORPORATE DISCLOSURE STATEMENT ....
TABLE OF AUTHORITIES ......-----+:::0°"°
CITATION OF OPINIONS ....------ssss00
RELEVANT STATUTES AND REGULATIONS .
STATEMENT OF THE CASE .....--------° °°"
I. The Kodak Facility ......------.:ss00'
I]. The Permit Approval Process .....-------°:
III]. The Current Lawsuit ......-----:s0000"
SUMMARY OF ARGUMENT.....-------s000

ARGUMENT

POINT I

NEITHER THE CLEAN WATER ACT
ITSELF NOR EPA’S IMPLEMENTING
REGULATIONS PROHIBIT THE
DISCHARGE OF POLLUTANTS NOT
SPECIFICALLY LIMITED IN AN NPDES

WUE, ccc cccccccccccccevcccccserses®
A. The Clean Water Act Contemplates the

Discharge of Pollutants Not Specifically

Limited in an NPDES Permit .....----

B. ASLF’s View of the Statutory
Framework of the Clean Water Act
“Stands the [CWA] Scheme on its

iv

Page

C. The Second Circuit’s Decision is
Consistent in Principle with the
Supreme Court’s Prior Clean Water Act
Decisions and Does Not Conflict with
Recent District Court Decisions........ 12

D. EPA Consistently has Concluded that
the Clean Water Act Authorizes the
Discharge of Pollutants Not Specifically
Limited in an NPDES Permit ......... 14

Se . ccceeae 14

2. EPA’s Clean Water Act
Implementing Regulations ........ 15

3. NYSDEC’s Interpretation of the
Clean Water Act is Similar to that
Adopted by EPA ................ 20

4. EPA’s Approach to Regulating
“Non-Limited” Pollutants Protects
Against Excessive Discharges ...... 21

5. ASLF’s Citizen Suit Represents an
Improper Challenge to EPA’s
Permitting Regulations ........... 21

E. ASLF’s Interpretation of the Clean
Water Act Would Cripple the NPDES

PURINE WOME 0 ov vs ccccccisecees 23
POINT II

A CITIZEN SUIT UNDER SECTION 1365

OF THE CLEAN WATER ACT MAY NOT

BE PREMISED SOLELY UPON A

PROVISION OF STATE LAW WHICH IS
BROADER THAN FEDERAL LAW ....... 25

ET Srvdevevcvusveveueseckescsubes. 28

an. et a ee nc MN eee ok

Page
APPENDIX

Federal Statutes
93 U.S.C. § 195] .... ccc cere reer tere tere Al
ote Coan ©) |) ooo A2
tk Con |) See A8
93 U.S.C. § 1942 ...... cere cece e rete r eee Al0
en 2) eee ooo Al6
On 2. Alg
93 U.S.C. § 1970... cece creer eee e er eeeeees A2l
Federal Regulations
40 C.F.R. § 192.21. .....6- ec c cere rece ereee: A23
40 C.F.R. § 122.42... ..-- eer ee cece re erreee: A29
40 C.F.R. § 129.44......--- ec cece errr renee: A32
40 C.F.R. § 122.62.......---- eer e eee: ? A36
ion SD eB) Seer eee eee A39
40 C.F.R. $ 193.25...... 0c ccc c cece ee eeeeee: A42
AO C.F.R. § 194.5... - cece cee cece eee eceeees A47
40 C.F.R. § 194.10.......- 2c ccc e cere reer: A48
40 C.F.R. § 194.11..... 6-6 e cece eter eee: A49

40 C.F.R. § 194.12... 2... ccc cee r eee ererees A50

vi

@ U.F.M. § U06.59. ccs cee
C.F. § EAE. cs ice
® C.F. § SRB. cists esac

New York State Statutes

N.Y. Envtl. Conserv. Law § 17-0815

Page
A52
A53

A53

A61

TABLE OF AUTHORITIES
Federal Cases

American Association of Meat Processors v.
Costle, 556 F.2d 875 (8th Cir. 1977).......--.

Atlantic States Legal Foundation, Inc. v.
Eastman Kodak Co., 809 F. Supp. 1040
(W.D.N.Y. 1902) ....-- 0 0c creer eee re eer ees

Atlantic States Legal Foundation, Inc. v.
Eastman Kodak Co., 12 F.3d 353 (2d. Cir.
ev crecageccasereercesscoce:

Atlantic States Legal Foundation, Inc. v.
Reynolds Metals Co., 31 E.R.C. 1156
(N.D.N.Y. 1900) .....-- 00 cece reece reer eres

Chemical Manufacturers Association v. Natural
Resources Defense Council, Inc., 470 U.S. 116
(IQBB) oo cece ccccvccccccceveverescsccceeess

Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) ....

Citizens for a Better Environment v. Gorsuch,
718 F.2d 1117 (D.C. Cir. 1983), cert. denied
sub nom., Union Carbide Corp. v. Natural
Resources Defense Council, Inc., 467 U.S. 1219
(1GBA) oc cc ccecccccccccccccscseeecreersess

City of Milwaukee v. Illinois, 451 U.S. 304 (1981)

E.1. du Pont de Nemours & Co. v. Train, 430
U.S. 112 (1977)... ee cee eee e neers

Environmental Defense Fund, Inc. v. Costle, 636
F.2d 1229 (D.C. Cir. 1980), cert. denied sub
nom., Union Carbide Corp. v. Natural
Resources Defense Council, Inc., 467 U.S. 1219
(10B4) occ cece cece creercccecrcneeeercecess

14

1]
12

Page
Environmental Protection Agency v. California ex
rel. State Water Resources Control Board, 426
Op, SE as Ca vadsdcveaceuneateeeea. 7, 8, 12
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49 (1987) ........ 27

Homestake Mining Co. v. Environmental
Protection Agency, 584 F.2d 862 (8th Cir.
i ees oadbneene Cuma ee nees 0208 22

McClellan Ecological Seepage Situation (MESS) v.
Weinberger, 707 F. Supp. 1182 (E.D. Ca.
EEE Kirkee.ccs band eaeAS ea eOhanes : 13, 14

Natural Resources Defense Council, Inc. v.
Environmental Protection Agency, 673 F.2d
400 (D.C. Cir.), cert. denied sub nom.,
Chemical Manufacturers Association v.
Environmental Protection Agency, 459 U.S. 879
Ns oh rd ou a reer ae ae wis 6 xo 6 640-06 22, 23

Natural Resources Defense Council, Inc. v.
Environmental Protection Agency, 822 F.2d
Be es WD oc nec cedccncccdesesces: 10

Natural Resources Defense Council, Inc. v.
Costle, 568 F.2d 1369 (D.C. Cir. 1977) ...... ll

Natural Resources Defense Council, Inc. v. Train,
8 E.R.C. 2120 (D.D.C. 1976), modified sub
nom., Natural Resources Defense Council, Inc.
v. Costle, 12 E.R.C. 1833 (D.D.C. 1979) ..... 10, 11

Public Interest Research Group of New Jersey,
Inc. v. Powell Duffryn Terminals Inc., 913
F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S.

REE obo 0 6s ce rele CdaTS cr VCs boone. 27
State of New York v. United States, 620 F. Supp.
ee I, ME wan cdeveugenwaetuss ceed 25

cen rene

cc, Seale =

a se al es

ix

Sun Enterprises, Ltd. v. Train, 532 F.2d 280 (2d
oe. SPP

United States v. Hooker Chemicals & Plastics
Corp., 749 F.2d 968 (2d Cir. BOBE) .. wc cecee:

United States v. Ketchikan Pulp Co., No. A92-587
Civ. (D. Alaska Oct. 5, 1993) ....----+ss00>:

United States v. Tennessee Gas Pipeline Co., No.
91-1428 (W.D. La. Oct. 8, 1991) ...------+>:

Federal Statutes

15 U.S.C. § 2607(b) ....--- see eee eee
93 U.S.C. § 1251(a)(1).....--eee eee eeee eee
A OM MIR oy inconsecevsserseressees:
93. U.S.C. § 1S1Na) ....-eeeec eee eee eee eee
93. U.S.C. § 1B1N(b)(1)...-- eee eee eee
83 U.S.C. § 1311(b)(2)....--- eee cere eee
33 U.S.C. § 1311(b)(2)(A) ....-- eee eee
33 U.S.C. § 1311(b)(2)(A)-(F)...- 0. - seer
O85 U.S.C, 8 BUM «0... e eee e cen e eer eeen
95 U.S.C. § ISIB(O) .. 2... ec eee e cece eeeeeees
oT Te |) i eeerrrrrrrrrrrrTriitrt

9 UGC. § 1DDIA) .. ooo cece cece cree eeesecees

33 U.S.C. § 1342(a)(1)(B) .... 6000 e rere ee

Page

14

14

~)

~

Page

- pe FoR ye ar 20
ee Rs OE + 9 0vc.ceyseeebeucedanieine 8, 13
ee nT ED 6 6.4 6 cveunetccaudbateass eae passim
Se oo 05-00 0.6 bends conse sense cen 2
Se a ccc veccccveacedeseriae 22
Se Dr ORI wv cc ecsccescsessieens 23
Se a EN gb asceccevetéucssenuea’ 22
EE anavascavenuy sche shutue tes 2, 26
GE as, SEO, occa snccceséunees ey. 27
ee ED i See bccceccccceveudedbnuess 24
Legislative History
Water Quality Act of 1965, Pub. L. No. 89-234,

RR Pte nen eee 6
Pub. L. No. 92-500, 86 Stat. 816 (1972)......... 7
Pub. L. No. 95-217, 91 Stat. 1566 (1977)........ 7, 10
Pub. L. No. 100-4, 10] Stat. 39 (1987).......... 22
S. Rep. No. 414, 92d Cong., Ist Sess. (1971),

reprinted in 1972 U.S.C.C.A.N. 3668, 3730.... 24, 25

117 Cong. Rec. S$38800 (Nov. 2, 1971) (statement
es I 6 6b 0.0.4.0.6.003 0040) ee 6, 7, 12

Federal Regulations Page
40 CFR. § 122.21(g) ...------20eee reer 2
40 C.F.R. § 122.21(g)(7) .---- 00-22 eeee eee 16
40 C.F.R. § 122.21(g)(7)(i) ....-- 22ers 16
40 C.F.R. § 122-21(g)(7)(ii) ...--- 02 seer 14, 16
40 C.F.R. § 122.21(g)(7) (iii) ....-.-- 0202s 16
40 C.F.R. § 122.21(g)(7)liv) ...-- 620s errr 16
40 C.F.R. § 122.21(g)(9) .-.---- 20-20 ee eee 16
4 CFR. § 122.490) ...----0e ccc eee rece ee ees passim
4 CFR. § 122.44(d) ...------ eee eee eee ere 2,17
40 CFR. § 122.44(€) ..----- eee eeeee reer 2
PPT. aT eee 17
40 C.F.R. § 122.61(a) (revised and renumbered as

@ CFR. § 198.480)... - ec eee eee eeeeeee: 18
40 C.F.R. § 122.62(a) ....--.-- 200 00ee eee 2, 18
yon DS DS err 2
a a ener rrrrrr rrr 27, 28
4 C.F.R. § 193.25....---- eee cecc cree 2, 20
40 C.F.R. § 123.25(a)(13) .... 6-20-20 e eee 18
40 C.F.R. Part 124.....-----eeeecc errr 22
AO C.F.R. § 194.5. ... 2. cece cece ccc ceeseerees 2

Page
gh a RE YF PUT eUPeeTe rr rere ee oe 17
ee Is 040 65.0050 40 pea eae eee ees 2,17
Cg eG re eee te 2,17
I eI 5 0-50 6a wecceare cenetaeeees 2,17
eo Wis cone cane veckeccnceekureae 2,9
re ID kk vk cb sec eck cavaevavenses 2,9
ye ne oo code skd cn onknee wee 2,9
i yw vicccc ds cicceusesiuessoss 27
Regulatory History
42 Fed. Reg. 65209 (1977)..................4.. 19, 20
43 Fed. Reg. 37078 (1978)..................4.. 18
44 Fed. Reg. 34393 (1979)..................... 16, 19
20, 21
45 Fed. Reg. 33516 (1980)..................... 17, 19
20
49 Fed. Reg. 37998 (I984)..................... 18, =

New York State Statutes

N.Y. Envtl. Conserv. Law Art. 17, tit. 8........ 2, 25, 26
N.Y. Envtl. Conserv. Law § 17-0815 ........... 2, 26, 27
New York State Regulations

N.Y. Comp. Codes R. & Regs. tit. 6, Parts
Nh sir ethno heap ame Maka aeeie ade 2, 26

Miscellaneous Page
Memorandum from EPA Deputy Administrator
for Water Enforcement to Regional
Enforcement Director, Region V (Apr. 28,
16

Bi chavcasessuscssosccsserssceees

No. 93-1839

IN THE

Supreme Court of the United States

Ocroser Term, 1993

ATLANTIC STATES LEGAL FOUNDATION, INC.,
Petitioner,

vs.

EASTMAN KODAK COMPANY,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

CITATION OF OPINIONS

The opinion of the United States District Court for the
Western District of New York in this matter is set forth at 809
F. Supp. 1040 (W.D.N.Y. 1992). The opinion of the United States
Court of Appeals for the Second Circuit in this matter is set forth
at 12 F.3d 353 (2d Cir. 1994).

RELEVANT STATUTES AND REGULATIONS

The applicable federal statutes in this case are 33 U.S.C. § 1251
et seq., and more specifically 33 U.S.C. §§ 1251(a)(1), 1311,

1312(a), 1342, 1365, 1369 and 1370. Applicable federal regula-
tions include 40 C.F.R. Parts 122-125, and more specifically 40
C.F.R. §§ 122.21(g), 122.42(a), 122.44(d)-(e), 122.62(a), 123.1,
123.25, 124.5, 124.10-.12, 125.1 and 125.3(c)-(d). Applicable New
York State statutes are New York Environmental Conservation
Law (“ECL’) Article 17, title 8, and more specifically ECL §
17-0815. Applicable New York State regulations are New York
Code of Rules and Regulations, Title 6, Parts 750-758. The rele-
vant sections of the above statutes and regulations are reprinted
as an Appendix to this brief.

STATEMENT OF THE CASE
I. The Kodak Facility

Kodak operates an industrial facility known as Kodak Park
in Rochester, New York. Kodak Park is an approximately 2,100
acre, 480-building facility at which over 20,000 people are
employed. The facility manufactures sensitized film and paper,
laboratory chemicals, and other products. (JA.95)' Wastewater
from Kodak Park is collected by an industrial sewer system and
treated on-site at Kodak’s King’s Landing Wastewater Purifica-
tion Plant (the “Plant”). (JA.95-96)

The treated wastewater is discharged to the Genesee River
pursuant to a permit (the “Permit”) issued by the New York State
Department of Environmental Conservation (“NYSDEC”) under
the State Pollutant Discharge Elimination System (“SPDES”)
program. (JA.96) The Permit contains limitations on the
discharge of certain substances, as well as sampling, analytical
and reporting requirements. In particular, pursuant to the Per-
mit, Kodak analyzes the Plant’s discharge for specified substances
and reports the results of these analyses to NYSDEC in month-
ly discharge monitoring reports. The permit also requires Kodak
to conduct periodic analyses for additional substances not sub-
ject to specific discharge limitations. (JA.55-72, 96)

' Citations to the Joint Appendix on file with the United States Court of Ap-
peals for the Second Circuit are identified as “JA._”.

Il. The Permit Approval Process

Kodak obtained its first wastewater discharge permit for
Kodak Park in 1975 from the United States Environmental Pro-
tection Agency (“EPA”) under the National Pollutant Discharge
Elimination System (“NPDES”) program. In July 1979, Kodak
submitted a timely application to renew that permit to
NYSDEC, which had been delegated authority by EPA to issue
NPDES permits. (JA.97) Over the next five years, Kodak pro-
vided NYSDEC with extensive information concerning the use
and discharge of chemicals at Kodak Park. In particular, Kodak
provided NYSDEC with a completed copy of EPA Form 2C,
which solicited monitoring data for 164 pollutants. (JA.97-98,
120-42) Kodak also submitted information concerning over 140
specific chemicals as part of an Industrial Chemical Survey

those chemicals were likely to be present in the facility's
wastewater. (JA.98-99, 143-50) Kodak also provided NYSDEC
with data concerning other organic chemicals found in its ef-
fluent. (JA.99-100)

Based on this information, NYSDEC issued a renewed per-
mit to Kodak, effective November 1, 1984. (JA.55-72, 100) The
Permit established specific effluent limitations for only 25
pollutants (JA.56), despite the fact that the information sub-
mitted by Kodak showed that the facility was discharging at
least 45 substances and was likely to be discharging many others.
(JA.97-103, 124-34, 141) The Permit also contained “action levels”
for five other pollutants.’ (JA.58) Finally, the Permit required
Kodak to “semi-annually perform a scan. . _of EPA Volatile, Acid
and Base/Neutral Fractions and PCB's priority pollutants on a
24-hr. composite sample.” (JA.58, 102).

: An action level is a numerical reporting standard. If the action level is ex-
ceeded, the permit holder must undertake a short-term, high intensity monitor-
ing program to determine if higher than expected levels of the pollutant are,
in fact, being discharged. An action level is not an effluent limit. (JA.58)

Kodak submitted an application to renew the Permit in 1989.
The 1984 permit will remain in effect until NYSDEC issues a
final determination regarding Kodak’s pending application.
(JA.102-03) NYSDEC solicited public comments concerning a
draft permit in July, 1992. The agency re-noticed a revised draft
permit in October 1993 and is expected to issue a final permit
shortly.

Ill. The Current Lawsuit
This action is citizen suit commenced by ASLF pursuant to

section 505 of the Clean Water Act (“CWA or the “Act”). 33
U.S.C. § 1365. ASLF alleges that:

Kodak has discharged and continues to discharge the
pollutants listed below in violation of section 301(a)
of the Act, 33 U.S.C. 1311(a), and the express terms
and conditions of its NPDES/SPDES Permit No. NY
0001643. Such conditions prohibit the discharge of any
pollutants not identified or authorized in the permit.
(JA.L1, 15)

ASLF’s list of 28 “prohibited” pollutants included 13 substances
for which Kodak provided information to NYSDEC. (JA.101,
124-34) Eight of the 28 substances are included in the priority
pollutant scan required by the Permit. (JA.58, 102)

ASLF filed its complaint in this action in November 1991.
(JA.2, 4-10) In August 1992, after extensive discovery, ASLF
moved for partial summary judgment as to Kodak's liability
under the CWA with respect to 16 of the 28 pollutants included
in the complaint. (JA.33) Kodak then moved for summary judg-
ment on the ground that the CWA does not prohibit the
discharge of pollutants for which there are no specific effluent
limitations contained in an NPDES permit. Kodak further
argued that, to the extent the Permit or State law required that
no pollutant could be discharged unless it was subject to a
specific discharge limitation, any such requirement would be
broader than the federal NPDES permit program and thus not
enforceable via a citizen suit under the CWA.

Ee

The District Court for the Western District of New York
denied ASLF’s motion for partial summary judgment and
granted Kodak’s motion for summary judgment, concluding that
“when an alleged polluter is subject to a pollution discharge per-
mit 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.” 809 F. Supp. at
1042. The Court of Appeals for the Second Circuit affirmed,
holding first, that the discharge of pollutants for which there
are no specific effluent limitations in an NPDES permit is not
unlawful under the Clean Water Act and second, that if under
state law such a discharge was unlawful, any such requirement
would be broader than federal law and, hence, not enforceable
under a citizen suit authorized only under federal law. 12 F.3d
at 354.’

SUMMARY OF ARGUMENT

The Clean Water Act is premised on the notion that impos-
ing discharge limitations on every individual substance dis-
charged from a facility, regardless of quantity or toxicity, is
neither feasible nor required. EPA, the agency charged with
responsibility for implementing this very complex and technical
statute, has interpreted the Act to authorize the discharge of
pollutants not specifically limited in an NPDES permit. Con-
sistent with the CWA, EPA solicits information (and establishes
effluent limits) for those substances which pose the greatest en-
vironmental concern. Discharges of substances not subject to
a specific effluent limit are addressed via notification and per-
mit modification provisions.

Based on its review of the Clean Water Act and its implement-
ing regulations, the Second Circuit concluded that EPA's inter-
of the Act is “a sufficiently rational one to preclude

a court from substituting its judgment for that of EPA.” 12 F.3d
at 358 (quoting Chemical Manufacturers Ass'n o. Natural

' The Second Circuit also concluded that NYSDEC's view of the NPDES.
SPDES permit is the same as that adopted by EPA 12 F.3d at 359

Resources Defense Council, Inc., 470 U.S. 116, 125 (1985)).
Neither this Court, nor the lower courts have issued any deci-
sions which cast doubt on the Second Circuit's conclusion. To
the contrary, as set forth below, the statutory, regulatory and
judicial history of the Act overwhelmingly support the conclu-
sion that the CWA does not prohibit the discharge of pollutants
not specifically limited in an NPDES permit. To the extent that
New York State prohibits the discharge of such pollutants (and
evidence suggests it does not), those provisions are broader than
the federal program and thus are not enforceable via a citizen
suit. For the foregoing reasons, ASLF’s Petition for a Writ of
Certiorari should be denied.

ARGUMENT
POINT I

NEITHER THE CLEAN WATER ACT ITSELF NOR
EPA IMPLEMENTING REGULATIONS PROHIBIT
THE DISCHARGE OF POLLUTANTS NOT SPECIF-.
ICALLY LIMITED IN AN NPDES PERMIT.

A. The Clean Water Act Contemplates the Discharge of
Pollutants Not Specifically Limited in an NPDES Permit

Prior to 1972, the federal government regulated water pollu-
tion solely through water quality standards.* Congress subse-
quently rejected this approach as unworkable, enacting in its
place the Clean Water Act (the “CWA” or “Act”) which directly
regulates the discharge of pollutants. In enacting the CWA, Con-
gress declared that it was the national goal to eliminate the
discharge of pollutants to navigable waters by 1985. 33 U.S.C.
§ 1251(a)(1). Congress recognized, however, that this goal might
not be achievable. As Senator Edmund Muskie, the primary force
behind the CWA noted:

* Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903. Under this ap-
proach, states were required to classify streams and rivers based on their highest
and best use (e.g., drinking water vs. recreation). These uses dictated the level
of pollutants which could be discharged.

[T]he 1985 deadline for achieving no-discharge of
pollutants is a policy objective. It is not locked in con-
crete. It is not enforceable. It simply establishes what
the committee thinks ought to be done on the basis
of present knowledge.

117 Cong. Rec. $38800 (Nov. 2, 1971). Accordingly, Congress did
not require the elimination of all discharges. Instead, it required
industries to install the “best available technology economical-
ly achievable.” 33 U.S.C. § 1311(b)(2) (emphasis added). This
provision required EPA to establish effluent limitations which
would result in “reasonable further progress” toward the elimina-
tion of pollutants, taking into account economic and
technological limitations.’ To the extent these technological stan-
dards were insufficient to protect water quality, the Act required
EPA to establish effluent limitations based on water quality stan-
dards. Id. § 1312(a).

These effluent limitations are incorporated into an NPDES
permit issued pursuant to section 402 of the CWA. 33 U.S.C.
§ 1342. As this Court noted in Environmental Protection Agency
v. California ex rel. State Water Resources Control Board, 426
USS. 200 (1976), the NPDES permit “serves to transform generally
applicable effluent limitations and other standards — including
those based on water quality — into the obligations. . .of the
individual discharger.” Id. at 205. Under the CWA, EPA deter-
mines the applicable technology-based effluent limitations as
well as limitations required to protect water quality. It then issues
an NPDES permit to the facility which sets forth specific

pollutant sources were required to apply the “best practicable technology cur-
rently available”. 33 U.S.C. § 1311(b)(1). During the second phase, to be im-
Slemented by 1983, industries were required to apply “the best available
technology economically achievable”. 33 U.S.C. § 1311(b)(2). See Pub. L. No.
92-500, 86 Stat. 816 (1972). Congress subsequently amended this section of
the CWA to impose a new schedule which addressed, among other things,
the discharge of toxic pollutants. See 33 U.S.C. § 1311(b)(2)(A)-(F). See Pub.
L. No. 95-217, 91 Stat. 1566 (1977).

discharge limits, monitoring requirements, and other conditions
which the facility must meet in order to comply with the CWA.
The permit thereafter serves as the “principal means of enforc-
ing the [CWA’s] pollution control and abatement provisions.”
Id. at 223.

Section 402(k) of the CWA further clarifies the obligations
of NPDES permit holders. That section provides that:

Compliance with a permit issued pursuant to this sec-
tion shall be deemed compliance, for purposes of sec-
tion 309 and 505 [of the Act], with sections 301, 302,
306, 307 and 403 [of the Act]. ...

33 U.S.C. § 1342(k). In E.I. du Pont de Nemours & Co. v. Train,
430 U.S. 112 (1977) this Court concluded that:

The purpose of § 402(k) seems to be to insulate per-
mit holders from changes in various regulations dur-
ing the period of a permit and to relieve them of hav-
ing to litigate in an enforcement action the question
whether their permits are sufficiently strict. In short,

§ 402(k) serves the purpose of giving permits finality.

Id. at 138 n.28 (emphasis added). This so-called “shield” provi-
sion reflects Congress’ desire to incorporate all of a facility's
obligations under the CWA into a single document — the
NPDES permit — and to establish that compliance with the
permit constitutes compliance with the CWA.

B. ASLF’s View of the Statutory Framework of the Clean
Water Act “Stands the [CWA] Scheme on its Head.”

ASLF, by focussing on certain provisions of the CWA to the
exclusion of others, loses sight of this basic framework and thus
concludes, erroneously, that the CWA prohibits the discharge
of all pollutants not specifically limited in an NPDES permit.
Section 301(a) of the CWA provides that “[e]xcept as in com-
pliance with this section and sections 302, 306, 307, 318, 402,
and 404 of this Act, the discharge of any pollutant by any per-
son shall be unlawful.” 33 U.S.C. § 1311(a). Section 402(a), mean-
while, authorizes EPA to issue a permit, notwithstanding section

Ee a a eee, To tT ee a

301(a), “upon condition that such discharge will meet . . . all
applicable requirements under sections 301, 302, 306, 307, 308
and 403 of th{e] Act.” 33 U.S.C. § 1342(a). Based on these two
provisions, ASLF leaps illogically to the conclusion that the CWA
prohibits the discharge of all pollutants not subject to specific
effluent limitations in an NPDES permit. (ASLF Pet. 11-12)* As
previously noted, however, the entire CWA is premised on Con-
gress granting to EPA the discretion to establish effluent limita-
tions for a given source category by taking into account en-
vironmental, economic and technological considerations. 33
US.C. § 1311(b)(2)(A). This means that EPA can decline to limit
discharges of certain pollutants if it concludes that the en-
vironmental threat posed by the pollutants does not justify
regulation. Under these circumstances, ASLF cannot reasonably
argue that a permittee, such as Kodak Park, can subsequently
be subject to a citizen suit for discharging these same
“unregulated” pollutants without an NPDES permit.’

The Court of Appeals for the Second Circuit recognized the
fallacy of ASLF’s approach. According to the Court,

Atlantic States’ view of the regulatory framework
stands the [CWA] scheme on its head. Atlantic States

* Citations to ASLF’s Petition for Writ of Certiorari are identified as “ASLF
ie

’ ASLF also argues that where no effluent limitations have been established,
the permitting agency must establish effluent limits based on best professional
judgment (“BPJ”) “for each and every pollutant,” pursuant to CWA §
402(a)(1)(B). (ASLF Pet. 26) Section 402(a)(1)(B) authorizes EPA to issue an
NPDES discharge permit for the discharge of any pollutant on the condition
that the discharge will meet either applicable effluent standards and re-
quirements or “prior to the taking of necessary implementing actions relating
to such requirements, such conditions as the Administrator determines are
necessary to carry out the provisions of this Act.” 33 U.S.C. § 1342(a)(1)(B).
In effect, ASLF suggests that any pollutant not governed by a specific stan-
dard must be the subject of a separate BP] review. This argument misinter-
prets section 1342(a)(1)(B). In exercising BPJ, the permitting agency will be
guided by the same considerations which govern development of effluent
limitations. The agency thus may conclude that certain pollutants do not justify
agency regulation. See 40 C.F.R. §§ 125.1; 125.3(c), (d).

10

treats permits as establishing limited permission for
the discharge of identified pollutants and a prohibi-
tion on the discharge of unidentified pollutants. View-
ing the regulatory scheme as a whole, however, it is
clear that the permit is intended to identify and limit
the most harmful pollutants while leaving the con-
trol of the vast number of other pollutants to disclosure
requirements. Once within the NPDES or SPDES
scheme, therefore, polluters may discharge pollutants
not specifically listed in their permits as long as they
comply with the appropriate reporting requirements
and abide by any new limitations when imposed on
such pollutants. 12 F.3d at 357.

The history of the CWA’s regulation of toxic pollutants il-
lustrates that imposing limits on every individual pollutant is
neither feasible nor required by the Act. In the mid 1970's,
the Natural Resources Defense Council (“NRDC”) and other en-
vironmental groups brought suit against EPA challenging the
agency’s failure adequately to regulate toxic pollutants. The
result of this lawsuit was a consent decree (the “NRDC Con-
sent Decree”) which has guided the agency’s control of toxic
pollutants ever since. NRDC v. Train, 8 E.R.C. 2120 (D.D.C.
1976), modified sub nom., NRDC v. Costle, 12 E.R.C. 1833
(D.D.C. 1979), modified by Orders dated October 26, 1982,
August 2, 1983, January 6, 1984, July 5, 1984, January 7, 1985,
April 24, 1986, and January 8, 1987. The NRDC Consert Decree
required EPA, among other things, to adopt limits based on best
available control technology economically achievable (“BAT”)
for toxic pollutants from a list of source categories in accordance
with a court-ordered schedule. Appendix A to the Decree iden-
tifies the toxic pollutants EPA has to consider in promulgating
the BAT limits. The toxics program set forth in the Decree, in-
cluding the list of toxic pollutants, was incorporated into the
CWA by Congress in 1977.* See Pub. L. No. 95-217 § 53, 91 Stat.
1566, 1589 (1977).

* See 12 E.R.C. at 1834-36; NRDC ov. EPA, 822 F.2d 104, 118 (D.C. Cir. 1987);
Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1238-45 (D.C.
(Footnote continued)

11

Paragraph 8 of the NRDC Consent Decree, as modified,
authorizes EPA to exclude the following pollutants from
regulation:

(1) not detected in industry effluents by state-of-the-art
analytical methods,

(2) detected in the effluent from only a small number of
sources and uniquely related to those sources,

(3) resent only in trace amounts not causing or likely
to cause toxic effects,

(4) sufficiently controlled by existing technologies on
which other applicable guidelines or standards are
based, or

(5) present in amounts too small to be effectively controll-
ed by known technologies. See 12 E.R.C. at 1842.

This agreement reflects a recognition by both citizen groups and
EPA that imposing limits on every individual pollutant is neither
feasible nor required by the Act. It also reflects a recognition
that discharging these “unregulated” pollutants does not violate
the Act.

In support of its argument that CWA § 301(a) prohibits the
discharge of “any” pollutant without a permit, ASLF cites
Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369
(D.C. Cir. 1977), in which the Court of Appeals for the District
of Columbia Circuit struck down an EPA proposal to exclude
“minor” polluters from the NPDES program. (ASLF Pet. 14-17)
That decision is inapposite. NRDC v. Costle involved the
wholesale exclusion of a category of dischargers from regula-
tion. In the present case, by comparison, the permitting agen-
cy has been afforded ample opportunity to evaluate the facili-
ty’s discharges and has simply elected not to regulate certain
pollutants.

Cir. 1980), cert. denied sub nom., Union Carbide Corp. v. NRDC, 467 WS.
1219 (1984); Citizens for a Better Environment v. Gorsuch, 718 F.2d 1117 (D.C.
Cir. 1983), cert. denied sub nom., Union Carbide Corp. v. NRDC, 467 LS.
1219 (1984).

12

ASLF repeatedly cites 33 U.S.C. § 1251(a) for the proposition
that the goal of the CWA is to eliminate the discharge of
pollutants into the navigable waters by 1985. According to ASLF,
the interpretation of the CWA advocated by Kodak makes
achievement of that goal impossible and must therefore be re-
jected. As previously noted, however, the 1985 date is a goal only
and is not enforceable. See 117 Cong. Rec. $38800 (Nov. 2, 1971)
(statement of Sen. Muskie). More important, the scheme de-
scribed above should, in fact, result ultimately in the elimina-
tion of discharges of pollutants from point sources. Under 33
U.S.C. § 1311(d), EPA is required to review effluent limitations
every five years and, if necessary, revise them. This and other
provisions ensure that standards will become increasingly strict
as water pollution control technology improves.

C. The Second Circuit’s Decision is Consistent in Principle
with the Supreme Court’s Prior Clean Water Act
Decisions and Does Not Conflict with Recent District
Court Decisions.

To date, the Second Circuit is the only federal appeals court
to address whether the CWA prohibits the discharge of pollutants
for which the permit issuing agency has not developed a
discharge limitation. There is thus no conflict between circuit
courts concerning this issue.

Moreover, contrary to ASLF’s «ssertions, the Second Circuit’s
decision does not conflict in principle with this Court’s prior
decisions involving the CWA. The decisions cited by ASLF ad-
dress unrelated CWA issues. See, e.g., City of Milwaukee v. II-
linois, 451 U.S. 304 (1981) (whether federal common law can
be used to impose more stringent effluent standards than those
set forth under the CWA); Environmental Protection Agency
v. California ex rel. State Water Pollution Resources Control
Board, 426 U.S. 200 (1976) (whether federal facilities must ob-
tain an NPDES permit from a state with a federally approved
permit program). Although this Court declared in Milwaukee
v. Illinois, that “it is illegal for anyone to discharge pollutants
into the nation’s waters except pursuant to a permit,” this state-
ment merely restates a basic CWA proposition — that discharges
from a point source require an NPDES permit. It does not resolve

|

13

the more complex question at issue here — whether the discharge
of a pollutant not limited in an NPDES permit violates the CWA.

E.1. du Pont de Nemours ¢ Co. v. Train, 430 U.S. 112 (1977),
which ASLF cites extensively, does not support its narrow in-
terpretation of the CWA. The Court in DuPont hed that CWA
§ 301(b) authorizes EPA to establish effluent limitations for
classes of plants; in so holding, the Court rejected petitioners’
argument that CWA § 402(a) provides the sole authority for set-
ting effluent limitations for existing plants. This holding does
not dictate the result advocated by ASLF. To the contrary, many
of the considerations which prompted the Court’s decision in
DuPont justify the opposite result. In particular, the Court in
DuPont noted that “(t]he petitioners’ view of the Act would place
an impossible burden on EPA” by requiring the agency to con-
sider individually “the circumstances of each of more than 42,000
dischargers who have applied for permits.” Id. at 132. The ap-
proach advocated by ASLF would go one step farther, effec-
tively requiring EPA individually to consider and set standards
for each pollutant discharged from each individual facility,
regardless of quantity or toxicity.”

The District Court opinions cited by ASLF either support
Kodak or are inapposite. In McClellan Ecological Seepage Situa-
tion (MESS) v. Weinberger, 707 F. Supp. 1182 (E.D. Ca. 1988),
the District Court for the Eastern District of California held
that the discharge of volatile organics, which were not referenced
in the facility’s NPDES permit, did not violate the CWA. In so
holding, the court noted that federal regulations adopted by the
state require the defendant to submit quantitative data for
volatile organics in wastewater and to notify the state if the

° Moreover, ASLF misapprehends the significance of the DuPont Court's discus-
sion of the “permit shieda” provision set forth in CWA § 402(k). The decision
merely noted that the permit shield provision could not be used to allow devia-
tions from CWA § 306,. which requires EPA to set standards for newly con-
structed sources. 43) U.S. at 138 n.28. As discussed in Section B above, the
effluent limitations at issue here were issued in full compliance with the rele-
vant provisions of the CWA. The case thus does not run afoul of the DuPont
decision.

14

facility has or will discharge pollutants not identified in the per-
mit above specified levels. Jd. at 1201-02 (citing 40 C.F.R. §§
122.21(g)(7)(ii); 122.42(a)). According to the court, these provi-
sions make clear that:

discharges of volatile organics are not automatically
prohibited just because they are not specifically al-
lowed in an NPDES permit. Rather, NPDES ap-
plicants and permittees are required by regulation to
keep the permit authorities fully informed of any past
or potential discharges of volatile organics, and those
authorities then determine the appropriate treatment
of the discharges. [The defendant] has fully complied
with this regulatory scheme. Furthermore, the state
has never established a ban or even an effluent limita-
tion for volatiles in [the defendant’s] discharges.

Id. at 1202. Under these circumstances, the court concluded that
it “is obvious that [the defendant] is not prohibited from
discharging volatile organics.” Id. The remaining decisions cited
by ASLF are unreported and can be readily distinguished. See
Atlantic States Legal Four.dation, Inc. v. Reynolds Metals Co.,
31 E.R.C. 1156 (N.D.N.Y. 1990) (constitutional overbreadth
challenge to New York’s CWA implementing statute); United
States v. Tennessee Gas Pipeline Co., No. 91-1428 (W.D. La. Oct.
8, 1991) (involved allegations that the defendant failed to disclose
in its permit application. that it would discharge a particular
substance); United !:tate. «. Ketchikan P*i» Co., No. A92-587
Civ. (D. Alaska Oct. 5, 1993) (involve: ‘arge “unintentional”
discharges of pollutants which could not have been permitted
expressly).

D. EPA Consistently has Concluded that the Clean Water
Act Authorizes the Discharge of Pollutants Not
Specifically Limited in an NPDES Permit.

1. Introduction

Since the adoption of the CWA in 1972, EPA consistently has
interpreted the Act to authorize the discharge of pollutants not

15

specifically limited in an NPDES permit. EPA does not require
facilities to submit information concerning every pollutant
potentially discharged from a facility nor does it establish ef-
fluent limitations for every pollutant discharged. Numerous
statements issued by the agency confirm that the discharge of
such “non-limited” pollutants does not violate the CWA.

Citing this Court, the Second Cscuit concluded that, “EPA's
reasonable interpretations of the Act are due deferential treat-
ment in the courts” since EPA is the “federal agency entrusted
with administration and enforcement of the CWA.” 12 F.3d at
358 (citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844
(1984)). The standard for reviewiny, EPA regulations was ar-
ticulated by this Court in Chemical Manufacturers Association
v. NRDC, 470 U.S. 116 (1985), a case which also involved inter-
pretation of section 301 of the CWA. According to the Court,
in reviewing the EPA's interpretation of the CWA, the Court

need not find that it is the only permissible construc-
tion that EPA might have adopted but only that EPA's
understanding of this very ‘complex statute’ is a suffi-
ciently rational one to preclude a court from
substituting its judgment for that of EPA.

470 US. at 125. Quoting this language, the Second Circuit stated
that “because EPA’s implementation of the CWA is entirely
reasonable, we defer to it.” 12 F.3d at 358. ASLF has provided
no basis for disturbing that conclusion.

ASLF is using this lawsuit to challenge EPA's and NYSDEC’s
approach to administering the NPDES/SPDES permit program.
In effect, ASLF seeks to punish Kodak for decisions made by

both EPA and NYSDEC. As set forth below, such a challenge
cannot properly be brought under the citizen suit provisions of
the CWA.

9. EPA’s Clean Water Act Implementing Regulations

Since the adoption of the CWA in 1972, EPA consistently has
interpreted the Act to authorize the discharge of pollutants not

16

specifically limited in an NPDES permit. As the Second Cir-
cuit noted, EPA declared as early as 1976 that both agency policy
and the standard permit form provide “for a general authoriza-
tion to discharge subject only to the conditions and limitations
contained in the permit.” Memorandum from EPA Deputy
Assistant Administrator for Water Enforcement to Regional En-
forcement Director, Region V, at 1 (Apr. 28, 1976). (JA.176-77)
In support of its position, EPA noted that:

[I]t is impossible to identify and rationally limit every
chemical or compound present in a discharge of
pollutants. Compliance with such a permit would be
impossible and anybody seeking to harass a permit-
tee need only analyze that permittee’s discharge un-
til determining the presence of a substance not iden-
tified in the permit. The permittee then would be in
technical violation of his permit. (JA.177, emphasis
added)

Consistent with the CWA, the NPDES permitting program
developed by EPA focuses on soliciting information and
establishing effluent limitations for those pollutants which pose
the greatest environmental risk. Using a form known as “EPA
Form 2C”, EPA seeks monitoring data from dischargers concern-
ing a specific list of pollutants identified in 40 C.F.R. §
122.21(g)(7)." In addition, pursuant to 40 C.F.R. § 122.21(g)(9),

” All existing manufacturers seeking a permit must provide effluent monitor-
ing data for seven specific conventional pollutants. 40 C.F.R. § 122.21(g)(7)(i).
Applicants in specific industry categories (such as — in Kodak’s case —
photographic equipment and supplies) also must provide monitoring data for
certain organic toxic pollutants, toxic metals, and other pollutants listed in
the regulations. Id. § 122.21(g)(7)(ii). Applicants also must indicate whether
there is reason to believe that certain other specifically listed pollutants are
being discharged and to provide monitoring data as specified. Id.
§ 122.21(g)(7)(iii), (iv).

In developing the NPDES permit application, EPA “recognize[d] that the
proposed list of pollutants for which effluent data must be provided is not
exhaustive.” 44 Fed. Reg. 34393, 34399 (1979). According to EPA, this approach

(Footnote continued)

~’ tin Cepia ae tdete. caiias. a =a

17

applicants must provide EPA with a list of toxic chemicals which
the applicant currently uses or manufacturers.”

Using the information in the application, the permitting agen-
cy (i.e., EPA or the delegated state agency) proposes limitations
on pollutants discharged by the facility at significant levels. Con-
sistent with the CWA, EPA’s NPDES permit regulations require
the establishment of limits on (1) all toxic pollutants which are
or may be discharged at a level greater than the level which can
be achieved by the application of the best available technology
economically achievable, 40 C.F.R. § 122.44(e)(1), and (2) all
pollutants which have the reasonable potential to cause or con-
tribute to a violation of a state water quality standard. 40 C.F-R.
§ 122.44(d). These EPA rules do not require permits to contain
limits on other pollutants, even though the permit application
may indicate that other pollutants are routinely discharged.

Citizens faced with the potential discharge of “non-limited”
pollutants can voice their objections throughout the permit is-
suance process. All draft NPDES/SPDES permits are subject to
notice and public comment. See 40 C.F.R. §§ 124.10-.12. Citizens
thus can comment on the permit before it is issued. (In fact,
ASLF availed itself of this option with respect to Kodak's pend-
ing SPDES renewal application.) Members of the public also
may request that a permit be modified to contain new or more
stringent limits. See 40 C.F.R. § 124.5(a).

was dictated, in part, by constraints on agency resources. “Consistent with
the NRDC Decree and the 1977 amendments [to the Act], the Agency. . .con-
centrated its limited resources upon the worst problem, that is, the section
307(a) toxic pollutants.” Jd. In the same notice, EPA proposed to require per-
mit applicants to submit data on all pollutants in their discharges. EPA subse-
quently eliminated this requirement, agreeing with commenters that it was
“burdensome” and “not useful.” 45 Fed. Reg. 33516, 33536 (1980). According-
ly, permit applicants are required only to submit data specifically called for
by the permit application or the regulatory agency.

" In New York State, applicants comply with this requirement by completing
an Industrial Chemical Survey form (“ICS”) furnished by NYSDEC. The ICS
requests information concerning approximately 144 “substances of concern.”
These substances of concern include specific chemicals as well as broad
categories such as “unspecified metals,” which potentially encompass numerous
chemicals. (JA.98-99, 143-50)

18

To prevent future significant discharges of non-limited
pollutants, EPA adopted 40 C.F.R. § 122.42(a), which requires
dischargers to notify the permitting agency as soon as they know
or have reason to believe that any activity has occurred or will
occur which would result in the discharge above specified
notification levels “of any toxic pollutant which is not limited
in the permit.” This provision provides the permitting agency
with the information necessary to determine whether to modify
the permit pursuant to 40 C.F.R. § 122.62(a). In adopting the
notification/modification scheme, EPA clearly contemplated that
certain discharges of pollutants were so insignificant that no
limitations were necessary. In fact, once the permit is issued,
the permittee need not even notify the agency concerning these
discharges unless they exceed certain specified thresholds.

The history of the section 122.42(a) notification provision
illustrates the problem with ASLF’s interpretation of the
CWA. Originally, EPA proposed to adopt “application-based”
effluent limits for pollutants which were reported or required
to be reported in the NPDES application, but which were
not specifically limited by the permit.” 43 Fed. Reg. 37078,
37079 (1978). Shortly thereafter, however, EPA rejected the
“application-based” approach on the ground that it did not ac-
count for normal variability of pollutant levels in industrial waste

” This provision was originally adopted as 40 C.F.R. § 122.61(a). EPA later
renumbered this provision as section 122.42 and amended it (1) to establish
different standards for routine and non-routine discharges, and (2) to eliminate
a requirement that facilities notify EPA “[t]hat they have begun or expect to
begin to use or manufacture as an intermediate or final product or byproduct
any toxic poliutant which was not reported in the permit application under
§ 122.53(d)(9).” See 49 Fed. Reg. 37998 (1984). Section 122.42 is applicable
to state administered permit programs. See 40 C.F.R. § 123.25(a)(13). The
general provisions of Section 122.61(a), the predecessor to Section 122.42, were
incorporated in Kodak’s Permit as General Condition 2(a). (JA.64)

" This proposal would have limited the discharge of such pollutants to levels
reported in the applicant’s permit application. In addition, permittees would
have been prohibited from discharging any pollutant for which information
was requested in the permit application if no discharge was detected or

reported.

2
4
f

Li, Pa Raj A thn ai ce lhe

A mah SPOT SRCHE ID iti owes

19

streams. In its place, EPA proposed to establish effluent limits
based on a multiple of either the amount reported in the ap-
plication or of the detection limit. See 44 Fed. Reg. 34393, 34404
(1979).* Ultimately, EPA dropped even this minimum “appli-
cation-based limit” requirement, concluding that such limits are
unworkable because of anticipated variations in waste streams
and exorbitant monitoring costs. 45 Fed. Reg. 33516, 33522
(1980). In place of the “application-based” standards originally
proposed, EPA adopted the notification provision discussed
above. See 40 C.F.R. § 122.42(a).

As the Second Circuit noted, in adopting this approach, EPA
recognized that “a 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 permittee as long as the
permittee complies with the notification requirements [of the
regulations].” 45 Fed. Reg. at 33523 (emphasis added). EPA also
acknowledged that “the final regulations control discharges only
of the pollutants listed in the permit application” and that this
list “is by no means exhaustive of all chemicals which may be
discharged”. Id. (emphasis added.) Subsequent EPA pro-
nouncements reaffirm the notion that permit holders are allowed
to discharge substances not specifically limited in their permits.*

ASLF criticizes the Second Circuit for relying on the 1976
EPA Memorandum discussed above, arguing that EPA con-
tradicted it in a subsequent rulemaking. In support, ASLF quotes
from the Federal Register notice issued by EPA in 1977 announc-
ing EPA’s intent to develop “application-based” limits. 42 Fed.

“ In making this proposal, EPA acknowledged that “/nJo explicit limits are
set for pollutants which are not required to be reported in the application.”
44 Fed. Reg. at 34404 (emphasis added).

‘* In the preamble to the amended NPDES regulations, EPA stated that
“pollutants not prohibited or limited by the permit can be discharged unless
and until the permit is modified.” 49 Fed. Reg. 37998, 38002 (1984). As the
Second Circuit noted, EPA issued guidance as recently as 1992 reaffirming
this approach with respect to water quality-based effluent limitations. 12 F.3d
at 358.

20

Reg. 65209 (1977). In so doing, however, ASLF conveniently ig-
nores the subsequent history of that rulemaking in which the
agency abandoned the proposal as unworkable. See 44 Fed. Reg.
34393, 34404 (1979); 45 Fed. Reg. 33516, 33522 (1980). ASLF
also ignores EPA’s numerous other statements indicating that
the discharge of “non-limited” pollutants is not prohibited. See,
e.g., 49 Fed. Reg. 37998, 38002 (1984).

3. NYSDEC’s Interpretation of the Clean
Water Act is Similar to that Adopted by
EPA.

Authority to issue NPDES permits may be delegated to the
states pursuant to 33 U.S.C. § 1342(b). All state programs must
have legal authority to implement specific provisions of the
federal NPDES regulations. These provisions, which are specified
in 40 C.F.R. § 123.25, include all of the regulations discussed
above.

As the Second Circuit stated, “[NYS)DEC’s view of the SPDES
permit is the same as EPA’s.” 12 F.2d at 359. In support of this
statement, the Second Circuit noted, among other things, that
General Condition 1(b) of Kodak’s permit itself contemplates
“new, increased or decreased discharges”. (JA.64) The court also
noted that the Permit contains General Condition 2(a), a
notification provision similar to 40 C.F.R. § 122.42(a). This fact
suggests that Kodak need not even notify NYSDEC of the
discharge of toxic pollutants not limited in the permit if they
are below certain concentrations. Based on this and other
evidence, the court effectively concluded that NYSDEC im-
plemented the SPDES program in the same manner as EPA —
using the SPDES permit to identify and limit the most harmful
pollutants while leaving the control of others to disclosure re-
quirements. (See also JA.175 [addressing NYSDEC guidance
documents concerning issuance of SPDES permits]; JA.126, 162
[discussing NYSDEC’s decision not to establish a discharge limit
for manganese, despite monitoring data showing it was being
discharged]; JA.170-72 [September 1988 letter from NYSDEC
discussing its decision not to regulate certain pollutants iden-
tified in Kodak’s “Form R” reports discussed below]).

2a ee

.
5
:
j
;
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21

4. EPAs Approach to Regulating “Non-Limit-
ed” Pollutants Protects Against Excessive
Discharges.

The regulatory scheme developed by EPA to implement the
CWA ensures that the quality of the nation’s waters is protected.
Under the NPDES regulations, the permitting agency identifies
those pollutants which pose the greatest environmental threat
and establishes appropriate limitations. The permittee must then
notify the agency in the event discharges of non-limited
pollutants exceed specified threshold levels; if these discharges
pose a concern, EPA can modify the permit to establish addi-
tional limitations.

Moreover, as EPA has recognized, the treatment required to
meet BAT for pollutants specifically limited by the facility's
NPDES permit indirectly controls other pollutants. See 44 Fed.
Reg. 34393, 34400 (1979) (“even without direct controls on many
pollutants, their levels will often by reduced incidentally by treat-
ment equipment .. . ”). The existing scheme thus prevents the
uncontrolled discharge of pollutants.

5. ASLF’'s Citizen Suit Represents an Improper
Challenge to EPA’s Permitting Regulations.

The Second Circuit, in addressing the regulatory history of
the CWA, concluded that “EPA has never acted in any way to
suggest that Atlantic States’ absolutist and wholly impractical
view of the legal effect of a permit is valid.” 12 F.3d at 357. To
the extent ASLF believes that Kodak’s discharge violated the
CWA, its dispute is with EPA and NYSDEC, not with Kodak.
Kodak complied fully with the requirements for obtaining an
NPDES/SPDES permit. Kodak submitted all of the informa-
tion requested by NYSDEC and cooperated fully with the agency
during the permit review process. No evidence exists in the record
to suggest that Kodak withheld any information from NYSDEC,
nor does ASLF assert that Kodak in any way misled NYSDEC.

In effect, ASLF is using this citizen suit to challenge EPA's
and NYSDEC’s approach to administering the NPDES/SPDES

22

permit program. Such a challenge is clearly not authorized under
the Act’s citizen suit provision. See Sun Enterprises, Ltd. v. Train,
532 F.2d 280, 287-88 (2d Cir. 1976) (citizen suit could not be
maintained to challenge manner in which EPA exercised its
discretion in promulgating effluent limitations and issuing
NPDES permits).

ASLF, like any member of the public, had several oppor-
tunities to challenge either the NPDES regulations generally,
or the Kodak permit, in particular. CWA § 509(b) authorizes
citizens to petition the United States Court of Appeals to review
any effluent limitation promulgated under section 301. 33 U.S.C.
§ 1369(b)(1). However, any such action must be commenced
within 120 days from the date of the relevant determination,
unless the petition is based solely on information that arises after
the 120th day.* Jd. Any action that could have been reviewed
under this section cannot be challenged in a civil or criminal
enforcement action. 33 U.S.C. § 1369(b)(2).

In addition, as set forth above, the CWA implementing regula-
tions contain extensive public notice and comment provisions.
See 40 C.F.R. Part 124. To the extent citizens are concerned about
the agency’s approach to drafting a particular permit, they can
raise their objections then.

As the above summary suggests, ASLF had at least two alter-
natives for addressing the concerns raised by the current lawsuit.
First, they could have challenged the NPDES permitting regula-
tions themselves. In the alternative, they could have raised objec-
tions to Kodak’s permit during the public review period. ASLF
failed to pursue either alternative; accordingly, this action is
barred under 33 U.S.C. § 1369(b)(2). See NRDC v. EPA, 673 F.2d

* Congress amended the statute in 1987 to extend the time period for filing
from 90 to 120 days. Pub. L. No. 100-4, 101 Stat. 39 (1987). Courts have inter-
preted this requirement strictly, and have dismissed petitions filed after the
statutory deadline. See, e.g., American Ass'n of Meat Processors v. Costle, 556
F.2d 875 (8th Cir. 1977); Homestake Mining Co. v. EPA, 584 F.2d 862 (8th
Cir. 1978).

Sa ny re ERE SS SoG) OE Oe Sede

Se ee es

23

400 (D.C. Cir.), cert. denied sub nom., Chemical Manufacturers
Ass’n v. EPA, 459 U.S. 879 (1982) (holding that NPDES rules are
“other limitations” under 33 U.S.C. § 1369(b)(1)(E) and thus are
reviewable only within the specified time period or not at all).
Any other conclusion would effectively punish Kodak for deci-
sions made many years ago by EPA and NYSDEC.

E. ASLF’s Interpretation of the Clean Water Act Would
Cripple the NPDES Permitting Program.

ASLF’s petition identifies several “advantages” to its inter-
pretation of the NPDES permitting scheme, chief among them
that it “provides strong incentives for polluters to disclose and
seek permission to discharge every pollutant coming from a
facility.” (ASLi* Pet. 30-32) As discussed above, however, neither
the federal nor State NPDES permit program solicits informa-
tion concerning every pollutant potentially discharged from a
facility nor do they establish limits for every pollutant poten-
tially discharged. To the contrary, the success of the program
hinges on EPA’s ability to exercise discretion not to regulate “in-
significant” discharges.

As the Second Circuit noted, “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).” 12 F.3d at 357. If permittees were prohibited
from discharging any substance not specifically limited in per-
mits, permittees would inevitably insist that regulatory agen-
cies develop limits for every substance that could conceivably
be discharged, regardless of amount or toxicity. For large
facilities such as Kodak Park, this list could theoretically include
hundreds of substances. Since any permit limits would have to
be based on the required treatment technology (e.g., BAT) or
applicable water quality standards, the issuance of each per-
mit would be significantly delayed. Multiply this delay by the
several thousand NPDES permits issued in New York State alone
and the permitting process would inevitably grind to a halt.

The interpretation advocated by ASLF also raises significant
technological obstacles. Under ASLF’s approach, the discharge

24

of minute quantities of an “unauthorized” pollutant — non-
detectable using EPA-approved analytical methods — would
violate the CWA. Under these circumstances, courts would be
forced to decide based on constantly evolving scientific stan-
dards whether the discharge of a tiny quantity of a substance,
in fact, occurred. This result would be contrary to Congress’
intent when it adopted the NPDES program (and abandoned
reliance on water quality standards) — to provide for swift and
direct enforcement of the CWA based on simple numerical stan-
dards. See S. Rep. No. 414, 92d Cong., Ist Sess. reprinted in 1972
U.S.C.C.A.N. 3668, 3730 (“One purpose of these new require-
ments is to avoid the necessity of lengthy fact finding, investiga-
tions, and negotiations at the time of enforcement. Enforcement
of violations of requirements under this Act should be based on
relatively narrow fact situations requiring a minimum of discre-
tionary decision making or delay.”)"’

This need for certainty is particularly important in citizen
suits. The legislative history of the CWA makes clear that citizen
suits under 33 U.S.C. § 1365 are intended to enforce effluent
limitations established administratively during the permit pro-
cess. In particular, Senate Report 92-414 provides that the citizen
suit provision under the CWA

would not substitute a “common law” or court
developed definition of water quality. An alleged

" The problem with ASLF’s approach is illustrated by its reliance on Kodak's
Toxic Chemical Release Inventory Reporting Forms (“Form Rs”) as evidence
of “nonauthorized” discharges. (JA.31-33) These forms, which must be filed
annually with EPA and NYSDEC under the Emergency Planning and Com-
munity Right-to-Know Act, attempt to quantify releases of several hundred
chemicals during normal business operations. 42 U.S.C. § 11023. The Form
Rs generally do not measure actual! releases of chemicals, but instead estimate
releases based on the arnount of a particular chemical used and its fate dur-
ing processing. (jA.103-06) In its notice letters and complaint, ASLF alleges
annual “discharges” of pollutants as low as 2 pounds per year using informa-
tion contained in Kodak's Form Rs. Since the discharges occurred over a period
of a year, the amount discharged on a given day would be undetectable using
EPA-mandated analytical methods. More important, ASLF could not hope
to establish whether a particular chemical was actually discharged during
a given day, week, month or year.

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 ad-
ministrative procedure leading to the establishment
of such effluent control provision. Therefore, an objec-
tive evidentiary standard will have to be met by any
citizen who brings an action under this section. . . .

S. Rep. supra, reprinted in 1972 U.S.C.C.A.N. at 3745. See United
States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968 (2d
Cir. 1984) (rejecting plaintiff's effort to intervene to prevent an
“imminent and substantial endangerment” from a pollution
source on the ground that 33 U.S.C. § 1365 was carefully
restricted to actions where violations of standards and regula-
tions are alleged); State of New York v. United States, 620 F.
Supp. 374, 384 (E.D.N.Y. 1985) (rejecting citizen suit to enforce
state water quality standards on the ground that “Congress in-
tended that § 505 would create a private right of action only
to enforce effluent limitations and standards that are ad-
ministratively predetermined through NPDES permits issued
under §§ 301, 302, 404, 306, and 307 [of the CWA]”). The cur-
rent suit runs contrary both to the Act’s limitations on citizen
suits as well as to its more general goal of providing for swift
and direct enforcement based on simple numerical standards.

POINT II

A CITIZEN SUIT UNDER SECTION 1365 OF THE
CLEAN WATER ACT MAY NOT BE PREMISED
SOLELY UPON A PROVISION OF STATE LAW
WHICH IS BROADER THAN FEDERAL LAW.

As previously noted, New York State has been delegated
authority to issue NPDES permits under the State Pollutant
Discharge Elimination System (“SPDES”) program, which is set
forth at New York Environmental Conservation Law (“ECL’)

26

Article 17, title 8.* Section 17-0815 of the ECL requires SPDES
permits to state that “the discharge of any pollutant not iden-
tified and authorized by [the] permit. . . shall constitute a viola-
tion of the terms of the permit.” This language was included
as General Condition 1(b) of the Kodak permit. ASLF appears
to be contending that this provision establishes that the Permit
prohibits the discharge of any sut)stance for which there is no
express effluent limit.” The Secow Circuit rejected this argu-
ment, concluding that |

even if Atiantic States is right about New York law,”
the action would fail because New York would be im-
plementing 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 Sec-
tion 505 citizen suits. 12 F.3d at 359-60.

That conclusion should not be disturbed.

Under 33 U.S.C. § 1370, states may adopt and enforce their
own effluent limitations or standards provided they are at least
as “stringent” as comparable provisions under the CWA. Federal
regulations governing EPA review and approval of state NPDES
programs clarify this requirement, providing that:

Nothing in this part precludes a State from: (1) Adopt-
ing or enforcing requirements which are more
stringent or more extensive than those required under

“ The State’s NPDES implementing regulations are set forth at N.Y. Comp.
Codes R. & Regs. tit. 6, Parts 750-758.

* It is unclear from ASLF’s petition whether it is, in fact, contesting the Sec-
ond Circuit's findings with respect to ECL § 17-0815. Although ASLF has
included a “Question Presented” addressing this subject, the petition includes
only a passing discussion of the impact of the New York statute. (See ASLF
Pet. 44-45) In the interest of completeness, Kodak has addressed this issue
briefly.

* As the Second Circuit noted, despite ECL § 17-0815 “[NYS]DEC’s view of
the SPDES permit is the same as EPA's.” 12 F.2d at 359.

27

this part; (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 additional
coverage is not part of the Federally approved
program.

40 C.FE.R. § 123.1(i). Although EPA has not yet issued any
guidance on the question of what constitutes a “more stringent”
requirement and what constitutes “greater scope of coverage”
under 40 C.F.R. § 123.1(i), the agency has interpreted an iden-
tical requirement under the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 et seq. See 40 C.F.R. § 271.1(i). (JA.174-75,
178-87) The agency concluded that a state program is broader
in scope than the federal if (1) the state requirement increases
the size of the regulated community beyond that of the Federal
program or (2) the requirement lacks a direct counterpart in
the Federal regulatory program. (JA.186). These “broader” re-
quirements are not part of the federal program and thus are
not enforceable by EPA. (JA.185)

In the present case, ECL § 17-0815 (and, by extension, General
Condition 1(b) of the Permit), lacks a counterpart in the federal
regulatory program — indeed, it is arguably contrary to the
federal program, which authorizes the discharge of pollutants
not specifically limited in an NPDES permit. Since ASLF, as
a citizen “stands in the shoes of EPA” it cannot enforce a viola-
tion of ECL § 17-0815 (or General Condition 1(b)) under the
federal citizen suit statute.”

* As this Court has noted, plaintiffs in a citizen suit act as “private attorneys
general” in place of the government. See Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 60-61 (1987) (citizen suit “is meant
to supplement rather than to supplant governmental action”). Since citizen
plaintiffs “effectively stand in the shoes of the EPA,” they cannot pursue citizen
suits where EPA itself would be barred. See Public Interest Research Group
of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 74 (3d
Cir. 1990) (prohibiting citizen suit where EPA would be time barred), cert.
denied, 498 U.S. 1109 (1991).

28

In its brief discussion of this issue, ASLF asserts that the Sec-
ond Circuit “has misread not only the Act’s goal of pollution
elimination but also states’ rights to adopt standards and con-
ditions consistent with that goal.” (ASLF Pet. 45). Kodak does
not, however, question the State’s authority to implement stricter
provisions designed to achieve the goal of pollution elimination;
it merely asserts that the CWA does not grant citizens the
authority to enforce those provisions under 33 U.S.C. § 1365
unless the provisions have a federal counterpart. See 40 C.F.R.
§ 123.1(i). Exclusive authority to enforce such provisions rests
instead with the state.

CONCLUSION

ASLF has failed to raise any arguments to suggest that its ab-
solutist and wholly impractical view of the legal effect of an
NPDES permit is valid and that the decision reached by the
United States Court of Appeals for the Second Circuit was
wrong. ASLF’s Petition for a Writ of Certiorari should therefore
be denied.

Respectfully submitted,

Puiuip H. GIr_en

Counsel of Record

WHITEMAN OSTERMAN & HANNA
Attorneys for Respondent

One Commerce Plaza

Albany, New York 12260

(518) 487-7600

Of Counsel:
ELIZABETH M. Morss

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0981%3A2. Public record. Not legal advice.