Fayetteville, Arkansas applied for an EPA permit to dump
sewage into an Arkansas river, as they were required to under Clean
Water Act §402(a)(1) (aka the National Pollution Discharge Elimination
Turns out, the river drained into the Illinois River
which crossed the border into Oklahoma was a few miles downstream of the
Btw, EPA was charged with granting the NPDES permit
because they had not delegated the ability to Arkansas.
Under NPDES, States can get the authority to issue NPDES
permits, but they have to have an implementation plan that is approved
by EPA. Arkansas hadn't done that yet.
EPA granted the permit, with the caveat that a study
needed to be undertaken to ensure that the sewage would not violate any of
Oklahoma's water quality regulations.
Turns out, Oklahoma had designated the river a 'scenic
river' and the regulation said that, "no degradation of water
quality shall be allowed."
That means that no dumping of sewage into the
river was allowed at all.
Oklahoma challenged the permit with EPA, alleging that the
Fayetteville dumping would degrade the water quality in the river in
violation of Oklahoma's water quality standards.
An EPA Administrative Law Judge (EPA ALJ) ruled that the
Oklahoma standards would not be violated unless the discharge had more
than a de minimus impact on the river. Oklahoma appealed.
The sewage resulted in undetectable amounts of change in
the Illinois River, and so really had no impact on Oklahoma water
quality, even if the dumping technically violated Oklahoma's
EPA's Chief Judicial Officer (EPA CJO) remanded.
EPA CJO found that under Clean Water Act §301(b)(1)(C),
NPDES permits must impose effluent limitations necessary to comply with
downstream States' water quality standards.
EPA CJO also found that the NPDES permit should be upheld
if a scientific study showed that the discharges would not cause a detectable
violation of Oklahoma's water quality standards.
"Unless there is some method for measuring
compliance, there is no way to ensure compliance."
On remand, the EPA ALJ found that there was no detectable
violation, so the permit was ok. Both Arkansas and Oklahoma appealed.
Arkansas argued that the Clean Water Act did not
require them to comply with Oklahoma's water quality standards.
Oklahoma argued that the dumping had produced a
The Appellate Court reversed EPA issuance of the permit.
The Appellate Court rejected both arguments, saying that
Arkansas must comply with Oklahoma water quality standards, and that
there had been no detectable violation.
The Appellate Court sua sponte found that,
"where a proposed source would discharge effluents that would
contribute to conditions currently constituting a violation of applicable
water quality standards, such a proposed source may not be
Basically, the Appellate Court found that the Illinois
River was already polluted and out of compliance with Oklahoma law.
Therefore, any addition of more pollutants, no matter how small, could
not be tolerated.
The US Supreme Court reversed the Appellate Court and
ordered EPA to issue the permit.
The US Supreme Court did not decide whether the Clean
Water Actrequired that EPA apply the water quality standards
of downstream States when considering whether to issue a permit.
The Court found that the Clean Water Act gave EPA
the authority to consider downstream States water quality
40 CFR §122.4(d) said that EPA should not grant a
NPDES permit "when the imposition of conditions cannot ensure
compliance with the applicable water quality standards of all affected
The Court found that EPA had broad discretion to
establish conditions for NPDES permits.
The Court rejected the Appellate Court's ruling that
prohibited any discharge of effluent that would reach waters already in
violation of existing water quality standards.
"The Appellate Court exceeded the legitimate scope
of judicial review of agency adjudication."
The courts can't come up with their own standard, they
can only rule as to whether EPA's standard is reasonable or not.
The Court found that EPA was required to interpret
Oklahoma's water quality standards, and as long as they do so reasonably,
their interpretation stands, even if it is at odds with how Oklahoma
Courts interpret the standard.
Basically, deference should be given to the EPA CJO, who
found that the dumping was in compliance as long as it was undetectable.
Oklahoma could also have tried to sue under the common law
claim of nuisance.
Most likely, they would be preempted from suing in Federal
Court because the Court would have likely held that they would be
preempted by the Clean Water Act.
See Illinois v. City of Milwaukee (406 U.S. 91
They could have tried to sue under State common law
nuisance, but they would have to bring the case in an Arkansas State
Court, not an Oklahoma State Court.
The receiving State's nuisance law is preempted, but the
polluting State's law is not.
See International Paper Co. v. Ouellette (479
U.S. 481 (1987))