Prologue — INDIANA WATER QUALITY COALITION v. Environmental Protection Agency

Suprans Cost

a A 3 j Se a.

No. 05- O51 095FEB 21 2006

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

INDIANA WATER QUALITY COALITION,

Petitioner,

b

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COuRT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DanicL P. ALBERS*

FREDRIC P. ANDES

Davip T. BALLARD

Barnes & THORNBURG, LLP

Suite 4400

1 N. Wacker Dr.

Chicago, Illinois 60606

(312) 357-1313

* Counsel of Record Counsel for Petitioner

199876 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

The United States Environmental Protection Agency

(“EPA”) regulation 40 C.F.R. § 132.4(h) (“section 132.4(h)”)

applies to “any pollutant other than those in Table 5” of

40 C.FR. part 132. Contrary to the plain language of the

regulation, EPA de facto amended section 132.4(h) via an

informal guidance document and the preamble of a proposed

rule to limit the regulation’s scope to only those pollutants

identified in the future, thereby excluding all currently

identified pollutants. EPA applied its own restrictive

interpretation to disapprove the State of Indiana’s use of

section 132.4(h) to regulate the currently identified pollutant

whole effluent toxicity (“WET”). The Sixth Circuit accepted

EPA’s restrictive interpretation of section 132.4(h) — in

square conflict with long-established regulatory principles

established by Supreme Court and federal circuit court

precedent, as well as the plain language of section 132.4(h)

itself.

The question presented is:

Whether an agency interpretation limiting the scope of

a regulation is entitled to deference where it is contrary to

the unambiguous language of the regulation.

il

PARTIES TO PROCEEDING AND RULE 29.6

CORPORATE DISCLOSURE STATEMENT

The Indiana Water Quality Coalition (““IWQC”) is the

Petitioner in this case. The United States Environmental

Protection Agency (“EPA”) is the Respondent in this case.

IWQC originally filed its Petition for Review in the Seventh

Circuit. On April 11, 2001, the Seventh Circuit transferred

IWQC’s Petition for Review to the Sixth Circuit. On May

15, 2001, the Sixth Circuit accepted the transfer, and

consolidated IWQC’s Petition with a Petition for Review

filed on behalf of the Northeast Ohio Regional Sewer District;

the City of Cincinnati, Ohio; the City of Akron, Ohio; the

City of Columbus, Ohio; and the City of Toledo, Ohio. None

of these parties are involved with this petition for a writ of

certiorari.

IWQC does not have a parent corporation, and there is

no publicly held company that owns 10% or more of IWQC’s

stock.

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TABLE OF CONTENTS

Page

CUES TION PROGEINE ED cccdccwsceesseuduces i

PARTIES TO PROCEEDING AND RULE 29.6

CORPORATE DISCLOSUKE STATEMENT ... il

TABLE OF CIFED AUTHORITIES 2.6.0 55360 & iV

NPS SIE PAE EO os eo VE Re oe es Vii

ogi) 8g ES) eee meee mare vane ene 1

JURISDICTION ...... eee eee neta cenes 1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED .... 2

EPL a OF Tikes CAGES ini oe hee eee 4

REASONS FOR GRANTING THE PETITION ... 12

THE SIXTH CIRCUIT’S DECISION

CONFLICTS WITH WELL-ESTABLISHED

ADMINISTRATIVE LAW PROVIDING

THAT AN AGENCY INTERPRETATION

OF A REGULATION IS NOT ENTITLED

TO DEFERENCE WHERE THE R&GU-

LATION IS UNAMBIGUOUS ON ITS

Ln ot OIYP RT Pree neh ear arene rr 13

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Auer v. Robbins, 519 U.S. 452 (1997) ........... 13

Beard v. Rowan, 34 U.S. 301 (1835) ........ Pee ey ©

Caminetti v. United States, 242 U.S. 470 (1917) ... 15

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837

CET 65 Fe ek CLR ORE eee 13

Chickasaw Nation v. United States, 534 U.S. 84

CER ea he ee eee eee Lae Ree 15

Christensen v. Harris County, 529 U.S. 576 (2000)

CG Pre OOO Tey Ee Bes Che ee Pe tn Ne 13, 16, 17, 18

Clean Ocean Action:v. York, 57 F.3d 328 (3rd Cir.

BP Sh ae es oe OE 14, 15, 16

Echevarria v. Chicago Title & Trust Co., 256 F.3d

OFS EF Cs FOO os hic cae ees Oke 14, 16

Entergy Servs., Inc. v. FERC, 375 F.3d 1204

Ce Ge: vv eaice eens wena cess 17

Indiana Water Quality Coalition v. EPA, 411 F.3d

Bate LOT CAE, ZOO) oo he he ea ee Be 8 ee

Navarro v. Pfizer Corp., 261 F.3d 90 (1st Cir.

2001)

Cited Authorities

Page

Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000)

Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) .... 14

In re: Sealed Case, 237 F.3d 657 (D.C. Cir. 2001) ... 14

Wards Cove Packing Corp. v. Nat’l Marine Fisheries

Serv., 307 F.3d 1214 (9th Cir. 2002) .......... 14

Wyoming Outdoor Council v. U.S. Forest Serv.,

$05.F.50 43.60; Cir. ISSR) eo oi ies 17

Yazoo R.R. Co. v. Thomas, 132 U.S. 174 (1889) ... 17

STATUTORY PROVISIONS

eras ee ee OL oC eos cee be cee Mawes 12

Pty BO Oa LtO Oe sos 0b 6 oa OCR wha eee 6

es ES GOS OE oth” 8h per ree SORE eee Oe I

es ne RO hh a ee ee Ce eee 10

eRe ea OE ok oes Cee E Ss Cees 4

ek as AP REOE ccs oA ho o's oe bak OCR 4

33 U.S.C. § 1268(a3) 2-6... 2... ee clas Ss 4

Peas SANE) cise n> Kee ees cee wee bees passim

WUC Cie. Ls

vi

Cited Authovities

Page

REGULATORY MATERIALS AND RULES

spd te ah TE gM + Se See ee ear aerer eee pie rrr oe 5

a ag eg OS | ORS Be EDO Bere earns a. i, 7, 14

GOs S ESC 600 0558 Ce ae eee passim

58 Fed. Reg. 20,802 (April 16, 1993) .......... passim

60 Fed. Reg. 15,366 (March 23, 1995) ......... 6,7,8

65 Fed. Reg. 47,864 (Aug. 4, 2000) ........... 1,9, 10

OTHER AUTHORITIES

Final Water Quality Guidance for the Great Lakes

System: Supplementary Information Document

(SID), CEPA, March 1995, 820-B-95-001) ... 6, 10, 11

Technical Support Document for Water Quality-

Based Toxics Control, EPA/505/2-90-001 (March

SORES Fie b crow cere ees Lae Paka bi eee 5

Webster’s Ninth New Collegiate Dictionary 77

oy} SOR mor pee pane er ee ray Sy ae 15

vil

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Sixth Circuit Filed June 16,

UE BREA E ORES CRE REE REDS NAO EET CEERI la

Appendix B — Order Of The United States Court

Of Appeals For The Sixth Circuit Denying

Petitions For Rehearing Filed November 22,

BER ERSTE Cas Ea EA CREA Ee ees 17a

Appendix C — Relevant Rules And Regulations .. 19a

Petitioner Indiana Water Quality Coalition (“IWQC”)

respectfully petitions this Court for a writ of certiorari to

review the judgment of the United States Court of Appeals

of the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the Sixth Circuit denying IWQC’s

Petition for Review is reported at 411 F.3d 726. The opinion

is reproduced in the appendix hereto (“App.”) at la. The

opinion of the Sixth Circuit denying IWQC’s Petition for

Rehearing with Suggestion for Rehearing En Banc is not

reported, and is reproduced at App. 17a. EPA’s /dentification

of Approved and Disapproved Elements of the Great Lakes

Guidance Submissions From the States of Michigan, Ohio,

Indiana, and Illinois, and Final Rule is reported at 65 Fed.

Reg. 47,864, and is reproduced at App. 19a.

JURISDICTION

The United States Court of Appeals for the Sixth Circuit

denied IWQC’s Petition for Review on June 16, 2005. App.

at la. The Sixth Circuit denied [WQC’s timely filed Petition

for Rehearing with Suggestion for Rehearing En Banc on

November 22, 2005. App. at 17a. The jurisdiction of the Sixth

Circuit was based on 33 U.S.C. § 1369(b)(1)(C), (D), & (E).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

2

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

Section 118 of the Clean Water Act provides in pertinent

part: -

(c) Great Lakes management. —

(2) Great Lakes water quality guidance.

(A) By June 30, 1991, the Administrator, after

consultation with the Program Office, shall

publish in the Federal Register for public notice

and comment proposed water quality guidance for

the Great Lakes System. Such guidance shall

conform with the objectives and provisions of the

Great Lakes Water Quality Agreement, shall be

no less restrictive than the provisions of this Act

[33 USCS §§ 125] et seq.] and national water

quality criteria and guidance, shall specify

numerical limits on pollutants in ambient Great

Lakes waters to protect human health, aquatic life,

and wildlife, and shall provide guidance to the

Great Lakes States on minimum water quality

Standards, antidegradation policies, and

implementation procedures for the Great Lakes

System.

(C) Within two years after such Great Lakes

guidance is published, the Great Lakes States shall

3

adopt water quality standards, antidegradation

policies, and implementation procedures for

waters within the Great Lakes System which are

consistent with such guidance. If a Great Lakes

State fails to adopt such standards, policies, and

procedures, the Administrator shall promulgate

them not later than the end of such two-year

period. When reviewing any Great Lakes State’s

water quality plan, the agency shall consider the

extent to which the State has complied with the

Great Lakes guidance issued pursuant to this

section. [33 U.S.C. § 1268(c)(2)(A) & (C)]

40 C.F.R. § 132.4(h) provides:

For any pollutant other than those in Table 5 of

this part for which the State or Tribe demonstrates

that a methodology or procedure in this part is

not scientifically defensible, the Great Lakes

States and Tribes shall:

(1) Apply an alternative methodology or

procedure acceptable under 40 C.F.R. part 131

when developing water quality criteria; or

(2) Apply an alternative implementation

procedure that is consistent with all applicable

Federal, State, and Tribal laws.

4

STATEMENT OF THE CASE

Facts. This case arose under the Clean Water Act

(33 U.S.C. § 1251, et seq.), the purpose of which is to “restore

and maintain the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. § 1251(a). To this end,

Congress enacted the Great Lakes Critical Programs Act of

1990, which amended section 118 of the Clean Water Act.

As amended, section 118 provides that EPA shall adopt

guidance for Great Lakes States' on minimum water quality

standards, antidegradation policies, and implementation

procedures for the Great Lakes System.’ 33 U.S.C.

§ 1268(c)(2)(A). On April 16, 1993, EPA published a

Proposed Water Quality Guidance for the Great Lakes System

(58 Fed. Reg. 20,802) (the “Proposed Guidance”). The

purpose of the Proposed Guidance was to provide

“opportunity for comment on the proposed Water Quality

Guidance for the Great Lakes System .. . developed under

section 118(c)(2) of the Clean Water Act...” 58 Fed. Reg.

at 20,802.

The preamble for the Proposed Guidance provided that

Great Lakes States were required to apply EPA’s

methodologies for implementing the eventual final guidance

“except for the 16 pollutants listed in Table 5 [of the Proposed

Guidance] and any pollutant other than those in Table 5 for

1. Section 118(a)(3)(G) of the Clean Water Act defines “Great

Lakes States” to include Illinois, Indiana, Michigan, Minnesota, New

York, Ohio, Pennsylvania, and Wisconsin. 33 U.S.C. § 1268(a)(3)(G).

2. Section 118(a)(3)(C) of the Clean Water Act defines “Great

Lakes System” as “all the streams, rivers, lakes, and other bodies of

water within the drainage basin of the Great Lakes.” 33 U.S.C.

§ 1268(a)(3)(C).