State of Okl. v. E.P.A.
| Decision Date | 11 July 1990 |
| Docket Number | Nos. 89-9503,89-9507 and 89-9516,s. 89-9503 |
| Parties | , 59 USLW 2079, 21 Envtl. L. Rep. 20,206 The STATE OF OKLAHOMA, Oklahoma Scenic Rivers Commission and Pollution Control Coordinating Board; Save the Illinois River (STIR), a non-profit corporation of the State of Oklahoma; City of Fayetteville, Arkansas; the Beaver Water District; State of Arkansas; Arkansas Department of Pollution Control and Ecology, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Oklahoma Wildlife Federation, Intervenor. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert A. Butkin (Robert H. Henry, Atty. Gen., and William J. Holmes, Asst. Atty. Gen., State of Okl., Ed Edmondson and Julian K. Fite, Muskogee, Okl., on the briefs), Oklahoma City, Okl., for petitioners, State of Okl., Oklahoma Scenic Rivers Com'n and Pollution Control Coordinating Bd.
John Steven Clark, Atty. Gen. , for petitioners, City of Fayetteville, Ark., Beaver Water Dist., State of Ark., Arkansas Dept. of Pollution Control and Ecology.
Gary Guzy (Catherine A. Winer, Pat Rankin, U.S. E.P.A., and Richard B. Stewart, Asst. Atty. Gen., with him on the briefs), U.S. Dept. of Justice, Washington, D.C., for respondent.
Ed Edmondson, Muskogee, Okl., appearing for Save the Illinois River.
Before ANDERSON and BRORBY, Circuit Judges, and THEIS, * District Judge.
In these consolidated appeals, appellants challenge certain actions of the U.S. Environmental Protection Agency (EPA) in issuing a discharge permit pursuant to the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act, 33 U.S.C. Sec. 1342. We review EPA's action
pursuant to our authority under 33 U.S.C. Sec. 1369(b)(1) and reverse.
The city of Fayetteville, Arkansas, applied to EPA for an NPDES permit for a new municipal wastewater treatment plant. Fayetteville proposed to discharge treated wastewater via a split flow into the White River in Arkansas and into Mud Creek, a tributary of the Illinois River, an Arkansas-Oklahoma interstate stream. The State of Oklahoma and a nonprofit group, Save The Illinois River (STIR), requested denial of the permit. The State of Arkansas and the Oklahoma parties requested an evidentiary hearing on EPA's issuance of the permit. A hearing request was granted in part and denied in part by an Administrative Law Judge (ALJ), and the partial denial was upheld by the EPA Administrator acting through his Chief Judicial Officer (CJO). After the evidentiary hearing, the ALJ determined that the permit would not have an undue impact on water quality or violate Oklahoma's water quality standards (WQS). This initial decision was appealed by both Arkansas and Oklahoma. On appeal, the ALJ's decision was affirmed in part and reversed in part and remanded for a determination whether the record showed by a preponderance of the evidence that the permitted discharge would not cause an actual, detectable violation of WQS. On remand the ALJ reviewed the record and made detailed findings. He concluded that the permit could issue as written, finding that it would not result in any measurable violations of Oklahoma's WQS. The ALJ's decision on remand was appealed to the CJO who upheld it in a decision dated December 22, 1988. These petitions for review followed.
Appellants the State of Oklahoma, Oklahoma Scenic Rivers Commission, Oklahoma Pollution Control Coordinating Board, and STIR (the "Oklahoma parties," or Oklahoma) set forth ten issues in their joint brief-in-chief. Essentially they contend that EPA erred in concluding that the permit would not violate Oklahoma's WQS; that EPA did not properly consider the Wild and Scenic Rivers Act, 16 U.S.C. Secs. 1271-1287 (WSRA), as it applies to the upstream portions of the Illinois River; and that EPA erred in denying review of certain issues and in refusing to reopen the evidentiary hearing. The State of Arkansas, Arkansas Department of Pollution Control Ecology, City of Fayetteville, and Beaver Water District (the "Arkansas parties," or Arkansas) challenge EPA's authority to require an Arkansas discharger to comply with Oklahoma water quality standards.
The cornerstone of the Clean Water Act, 33 U.S.C. Secs. 1251-1387, is its prohibition of any discharge of pollutants to navigable waters except as permitted by the Act. 33 U.S.C. Sec. 1311(a). Section 101 of the Act, 33 U.S.C. Sec. 1251(a)(1), states that "it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985." "Discharge of a pollutant" is defined expansively as "any addition of any pollutant to navigable waters from any point source." Sec. 1362(12)(A). "Pollutant" is also broadly defined; it includes "dredged spoil, solid waste, ... sewage, garbage, sewage sludge, ... chemical wastes, ... rock, sand, ... and industrial, municipal, and agricultural waste." Sec. 1362(6). "Point source" encompasses "any discernible, confined and discrete conveyance, including ... any pipe, ditch, channel, tunnel, [or] conduit ... from which pollutants are or may be discharged." Sec. 1362(14). "Navigable waters" means "the waters of the United States." Sec. 1367(7).
Discharges of pollutants must comply with limitations established in and pursuant to the Act. "Effluent limitations," i.e., limits on "quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources," Sec. 1362(11), may be water quality-based, Secs. 1312, 1313, or technology-based, Secs. 1311(b), 1314(b). EPA is required to establish water-quality based restrictions whenever technology-based limits are inadequate to protect a particular Federal and state effluent limitations and water quality standards are transformed into individual point source obligations through NPDES discharge permits. Sec. 1342; EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976). Permits may be issued if the discharge will meet all applicable requirements under the Act. Sec. 1342(a)(1). EPA is responsible for issuing permits, id., but may delegate that authority to qualified states, Sec. 1342(b). In those states, however, it retains oversight authority with respect to individual permits and the permitting programs in general. Sec. 1342(c), (d).
body of water. Sec. 1312(a). The CWA sets minimum requirements for water pollution control; states may devise more stringent measures. Sec. 1370. State standards, once approved by EPA, become the water quality standards for the applicable waters of the State. Sec. 1313
EPA issued Fayetteville's NPDES permit because at the time this proceeding commenced Arkansas had not yet been delegated permitting authority pursuant to Sec. 1342(b). The permit was issued on November 5, 1985, and finally approved on December 22, 1988, following the administrative appeals described above. The treatment plant has been in operation since December 1988.
The permit (NPDES Permit No. AR0020010) specifies that half of the city's treated wastewater will be discharged to the White River in Arkansas (this portion of the discharge is not in contention here), and half will be discharged to the Illinois River basin. Specifically, this latter effluent will be discharged to an unnamed stream in northwestern Arkansas, which flows approximately two miles before joining Mud Creek. Mud Creek flows three miles from that point to its confluence with Clear Creek, thirteen miles upstream from the Illinois River in Arkansas. Twenty-two miles downstream from Clear Creek--and thirty-nine miles from the Fayetteville plant--the Illinois River crosses the state line into northeastern Oklahoma and almost immediately flows into Lake Frances. A segment of the Illinois River (including Lake Frances) from the Oklahoma-Arkansas state line to Tenkiller Ferry Reservoir has been designated an Oklahoma state scenic river and was proposed for study as a potential addition to the National Wild and Scenic Rivers System when the WSRA was enacted in 1970. 16 U.S.C. Sec. 1276(40). To date, this segment, which is approximately sixty miles long, has not been designated a component of the national system. See 16 U.S.C. Sec. 1273.
The Fayetteville permit sets limits on the amounts of certain pollutants that may be discharged and establishes maximum or minimum effluent concentrations of those pollutants and other chemical parameters. Permit, EPA Supp. Addendum at 12-30. The permit prohibits the discharge of any incompletely treated effluent to Mud Creek. Id. at 27. It also includes, inter alia, a provision for modifying the permit to incorporate more stringent limitations if an ongoing study of the Illinois River demonstrates such limitations are needed to ensure compliance with water quality standards. Id.
Review of the EPA rulings on appeal here is governed by the Administrative Procedure Act, 5 U.S.C. Secs. 701-706. We must uphold the agency's actions, findings, and conclusions unless they are outside the agency's statutory authority, are not supported by substantial evidence, or are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 706(2)(A), (C), and (E). We may not substitute our judgment for that of the agency. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).
Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and...
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