Posted on September 19, 2011 by Charles Nestrud
Three South Arkansas industries and the City of El Dorado, Arkansas decided to remove their discharge from small ephemeral streams and construct a joint pipeline to carry their combined, treated effluent directly to the Ouachita River, a major river that flows through Arkansas into Louisiana. Louisiana joined with neighbors and two environmental groups to oppose the “Joint Pipeline” NPDES permit. In a 41-page opinion, the Arkansas Supreme Court rejected the challenges, and in the process provided some important interpretations of the Clean Water Act’s protections for impaired waterbodies and downstream states.
The Louisiana Environmental Action Network (LEAN) argued that a TMDL for mercury impairment in the Ouachita River basin did not allocate a mercury load for the joint pipeline; and therefore a new discharge permit with a mercury effluent limit was prohibited. LEAN advocated a “0 mg/l” mercury limit based on 40 C.F.R. 122.4(i) which requires a demonstration of sufficient pollutant load allocations in a TMDL before a new discharge may be allowed. Relying on Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007), LEAN argued that load allocations in a TMDL are like tickets to a sold out performance. Because the Ouachita River Basin TMDL did not provide a “ticket” (i.e. a load allocation) for the Joint Pipeline, LEAN argued that Arkansas could not authorize entry by the Joint Pipeline (i.e. no discharge of mercury could be permitted).
The Arkansas Supreme Court focused on the first sentence of 40 C.F.R. 122.4(i) andArkansas v. Oklahoma, 503 U.S.91 (1991) to reject LEAN’s “sold out performance” argument. The first sentence of 40 C.F.R. 122.4(i) prohibits new discharges that “will cause or contribute to the violation of water quality standards.” Although the NPDES permit included a mercury limit that authorized mercury to be discharged, the permit limited mercury in the effluent to less than the water quality standard. In other words, the Joint Pipeline effluent would have to be “cleaner” than the already impaired waterbody. The Court stated that Arkansas v. Oklahoma had rejected the notion that new discharges were categorically banned from impaired waterbodies, and authorized a more flexible approach, especially for permits that authorize “the construction of new plants that would improve existing conditions.”
When a state issues an NPDES permit that requires effluent to meet the water quality standard, the effluent will always be cleaner than the impaired waterbody receiving stream. Does the Arkansas Supreme Court opinion authorize any new permit into an impaired waterbody, so long as the water quality standard is protected? That would be a broad reading of this opinion—perhaps too broad.
In this case, the mercury in the Joint Pipeline effluent is a pass-through pollutant from the Ouachita River – the industrial participants use the mercury-impaired Ouachita River water as make up water, and that same water is returned to the Ouachita River as wastewater. None of the pipeline participants add mercury through their operations. EPA has authorized new discharges into impaired waterbodies under these circumstances through the Multi-Sector General Permit (73 Fed. Reg. 56572 at p. 56575 (Sept. 29, 2008)). Limiting the opinion to a “pass through” of pollutants that originated in the impaired waterbody would be a narrow reading of this opinion—perhaps too narrow.
The opinion clearly stands for the proposition that the existence of a TMDL does not serve as an outright ban on new sources. New sources can get a “ticket” to discharge into an impaired waterbody if the new source does not “cause or contribute to a water quality violation”—even if the TMDL does not specifically accommodate the new source.