1994-05-19_GENERAL DOCUMENTS - M1977378

Home Browse Search

rnwh National Wildlife Federation v. Gorsuch 18 ERC 1119 ss of 7._,2 2. "Addition" of a Pollutant `from" a tion from a point source occurs only if the .ions Point Source point source itself physically introduces a iat is The Act does not define what consti- pollutant into water from the outside zade tutes the "addition" of a pollutant. The world. In its view, the point or nonpoint !s a parties agree that water quality problems character of pollution is established when itantr that occur within a reservoir (e.g., dis- the pollutant first enters navigable water, °�- solved minerals) are nonpoint pollution, and does not change when the polluted water later passes through the dam from for lack of a point source. The Wildlife � Federation argues, however, that the sta- one body of navigable water (the reser- n m�, voir) to another (the dowstrea river). tutonly necessary addition ... from a As for supersaturation, which does not tent point source" occurs when (1) a dam exist in the reservoir, EPA argues that it pre- f causes pollutants to enter the reservoir occurs downstream, after the water is We and (2) the polluted water subsequently it is passes through the dam — the point released from the dam.ss dus- source — into the formerly unpolluted In our view, the language of the statute 130, river below.57 EPA responds that addi- permits either construction. The legisla- cert. tive history does not provide much help )97] tants classified as biological oxygen demand- either. Throughout its consideration of ncy ing, suspended solids, fecal coliform, and pH" the Act, Congress' focus was on tradition- -re- — which are not pollutants as such, but al industrial and municipal wastes; it field parameters for measuring pollution); compare never considered how to regulate facili- act, id § 1314(f)(1) (EPA must develop for the ties such as dams which indirectly cause ad- states "guidelines for identifying ... [a list of] pollutants to enter navigable upstream nonpoint sources of pollutants") unth id water and then convey these polluted the § . [a (similar (I) (the scares must "identify waters downstream. Congress did consid- urt •• [a similar list of] nonpoint sources of downstream water changes caused by er ownsream aer pollution") (emphasis added). rith t dams such as saltwater intrusion, see �w- Finally, we can imagine circumstances where §304(f)(2)(E), 33 U.S.C. § I314(f)(2)(E), *ill EPA might want to treat low dissolved oxygen but had no occasion to consider whether as a pollutant. Suppose an industrial facility, us rather than discharging oxygen-demanding NPDES permits were desirable for dams led organic waste directly into a river, instead because downstream changes are not lot diverts river water, discharges the organic amenable to the technological controls waste into the diverted water, waits for the required for point sources. 1 waste to decompose, and then returns the '1), oxygen-depleted water to the river. The effect had no responsibility for. Since we conclude '.ey, on downstream water quality is the same either that EPA does not have to issue NPDES ish j way; thus, we hesitate to conclude that the Act permits for dam-caused pollution, we do not .al, requires EPA to issue a discharge permit for reach the question whether EPA can order the former method of waste disposal but bars removal of all pollutants for which the dam is a die EPA from regulating the latter method. but-for cause, irrespective of other but-for iis- 57 Wildlife Federation Brief at 17. The causes. my district court agreed. 530 F.Supp. at 1306-07. 58 EPA Brief at 20; EPA Reply Brief at 3-5; it. Both elements must be present. Without cau- accord South Carolina 11, supra note 47, — lot sation, there is no legal responsibility for F.Supp. at — , slip op. at 27-28. EPA also ns• removing pollutants from the water. A ala- argues that any addition must occur "from" a so, chian Power Co. v.Train, 545 F2d 1351P1377 point source and not merely through a point 1 [9 ERC 1274] (4th Cir. 1976). source. EPA Reply Brief at 4 n.3. This argu- ;a ment, however, is inconsistent with its own 51 Low dissolved oxygen and dissolved miner- regulations, which define "discharge of a PA ! als involve multiole causation: oxygen deple- pollutant" to include "surface runoff which is al_ ! tion in the hypoiiminion layer of the reservoir collected or channelled by man." 40 C.F.R. ice- ► depends on both the characteristics of the § 122.3 (1981). Thus, EPA regulates the chan- iaz reservoir and the amount of pollution in the nel as a point source even though pollutants fi) water entering the reservoir. See note 6 supra merely pass through it from land to navigable nd and accompanying text. EPA argues, relying water. See also id. § 122.57 (treating storm cjri; # on Appalachian Power, that it cannot require a sewers as point sources); Sierra Club v. Abston rut dam operator to remove pollution that occurs Constr. Co., 620 F2d 41, 47 (5th Cir. 1980) us i within the reservoir but would not exist except (surface runoff from rainfall, if collected and ed for preexisting upstream pollution. EPA Brief channeled by coal miners for their own pur- to at 23-25. Appalachian Power, however, merely poses, is point source pollution); United States held that EPA could not order a polluter to v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. remove preexisting pollution that the polluter 1979).