# Prologue — INDIANA WATER QUALITY COALITION v. Environmental Protection Agency

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0874%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 903

## Text

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.

iil

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0874%3A0. Public record. Not legal advice.