Protection of Great Lakes Water Quality from Atmospheric Contaminant Deposition p81-172



	The Clean Air Act Existing legal authority under Section 112 of the Clean Air Act appears to provide an adequate basis to deal with the air-deposition issue, particularly a sector-based approach to establish MACT standards that could be applied nationwide. The underlying authority appears to be in place for the U.S. Environmental Protection Agency (EPA) to either use existing provisions or develop additional requirements. The TMDL Process The TMDL (total maximum daily load) process is an essential component of the U.S. regulatory framework. Since the process views water pollution problems broadly, particularly on a watershed basis, and specifically considers air deposition, it offers promise as a legal authority and conceptual approach. It could enlighten and inform public debate, drive the legislative rule-making agenda, and lead to legal authorities for non-point sources and air deposition. TMDL rules and regulations, presently under development, could be cast to support an overall strategy to protect water quality from air deposition of contaminants. In addition to prescriptive regulations, the TMDL process could lead to incentives and market-based programs. Assuming that total loadings to a water body are established, solid links between atmospheric loadings and specific sources established, and appropriate monitoring is in place, requirements on an individual source could be imposed through a TMDL air permit process analogous to the NPDES water permit program. However, it may be premature to rely on the TMDL process. In response to requests from U.S. EPA, states have prepared lists of contaminants for TMDL development. For the most part, these are conventional pollutants. Further, the plans are for single-jurisdiction water bodies of a size much smaller than the Great Lakes. The initial focus in Michigan is on phosphorus, with a time frame considered ambitious of more than a decade. The time frame will be even longer for a persistent toxic substance. Decades may pass before actual reductions in the environment are realized. Further, there are strong legal disagreements between the federal and state governments as to whether federal statutes contain authority to impose TMDL requirements. States may have adequate authority, independent of the underlying federal statutes, as demonstrated by Michigan's use of multi-pathway risk assessment for toxic substances. However, even if a state has authority, it may not feel compelled to exercise that authority in support of the TMDL. ADDITIONAL ISSUES Three additional issues identified were the need for Canada and the United States to: • Expand monitoring programs, including emission inventories and trends, in order to ensure availability of information about the response to programmatic measures taken. • Strengthen the scientific linkages between specific sources of contaminants and deposition to a particular water body, and link that science to the legal and institutional framework to deal with those sources. • Incorporate transboundary considerations into their domestic legislative frameworks. and for the United States to: • Investigate the application of other provisions of the U.S. Clean Air Act as well as application of independent state authorities.



	Appendices



	APPENDIX A REPORTS AND BACKGROUND INFORMATION CONSULTED Agency for Toxic Substances and Disease Registry. Toxicological Profile for Mercury. Bloxam, R. H. Sahota, S. Davies, and G. Minichini. Windsor Air Quality Study: Mathematical Modelling and Source Apportionment. Report prepared for Windsor Air Quality Committee by Frank Schaedlich Consulting Inc. 1994. 65 pages Davidson, P.W., G.J. Myers, C. Cox, C.F. Shamlaye, D.O. Marsh, M.A. Tanner, M. Berlin, J. Sloan-Reeves, E. Cernichiari and O. Choisy. Longitudinal neurodevelopmental study of Seychellois children following in utero exposure to methyl mercury from maternal fish ingestion: outcomes at 19 and 29 months. Neurotoxicology, Vol. 16 (1995): 677-688. Great Lakes Water Quality Initiative. http://www.great-lakes.net Health Canada. The Health and Environment Handbook for Health Professionals, 1998. 191 pages. http://www.hc-sc.gc.ca Michigan Department of Community Health. Michigan 1999 Fish Advisory. http://www.mdch.state.mi.us/pha/fishadv.htm Myers, G. et al. Neurotoxicology, Vol. 18 (1997): 819ff. Ontario Ministry of Environment. Guide to Eating Ontario Sport Fish 1999-2000. 20^th edition, revised. Public Information Centre, Toronto. Regulation 346 Model. Referenced under Section 5 of Regulation 346 General Air Pollution R.R.O. 1990 under Section 9 of the Environmental Protection Act. U.S. Environmental Protection Agency. Industrial Source Complex Model (ISC3) User's Guides. Publication Nos. EPA-454/B-95-003a and EPA-454/B-95-003b. Model and user's guides available at http://www.epa.gov/scram001 U.S. Environmental Protection Agency, 1999. Interim Agency Guidance on the Use of Methyl-mercury Reference Dose in Making Risk Management Decisions. See http://www.epa.gov/OST/fish/Volume2/section4.pdf U.S. Environmental Protection Agency, December 1997. Mercury Study Report to Congress. 8 volumes. Office of Air Quality Planning and Standards and Office of Research and Development. Report No. EPA-452/R-97-0003. http://www.epa.gov/ttnuatw1/112nmerc/mercury.html U.S. Environmental Protection Agency, 1995. SCREEN3 Model User's Guide. Publication No. EPA-454/B-95-004. Model and user's guide available at http://www.epa.gov/scram001 U.S. Environmental Protection Agency, Environment Canada, Michigan Department of Natural Resources, and Ontario Ministry of the Environment, December 1988. Final Report of the Upper Great Lakes Connecting Channels Study. Volume II. 626 pages. U.S. Food and Drug Administration. Is mercury in fish safety concern? Excerpted from FDA Consumer, September 1994 update: Mercury in Fish: Cause for Concern? http://www.fda.gov



	APPENDIX B SUMMARY OF COMMENTS RECEIVED AFTER THE WORKSHOP After the workshop, several participants shared further thoughts relevant to the issues laid out in the scenario. These are summarized below. U.S. CLEAN AIR ACT Other sections of the Clean Air Act could provide additional tools for plaintiff's attorneys to argue their case. Legal viewpoints would be beneficial. Section 112(c)(6) specifically addresses seven persistent, bioaccumulative pollutants mercury, alkylated lead, polycyclic organic matter, hexachlorobenzene, PCBs, 2,3,7,8-TCDF, and 2,3,7,8-TCDD. This provision requires the U.S. Environmental Protection Agency (EPA) to list categories and sub-categories of sources accounting for not less that 90% of the aggregate emission of each pollutant and ensure that such sources are subject to standards. Under Section 112(d), U.S. EPA must promulgate standards for hazardous air pollutants for new and existing "major sources." A major source is defined as any stationary source that emits, or has the potential to emit 10 tons per year or more of any hazardous air pollutant (mercury included) or 25 tons per year or more of any combination of hazardous air pollutants. However, U.S. EPA may establish a lesser quantity for a major source, based on the potency of the air pollutant, persistence and potential for bioaccumulation. U.S. EPA has not yet employed this discretionary authority. Section 112(d)(4) allows U.S. EPA to consider threshold levels for pollutants for which a health threshold has been established. U.S. EPA may consider such a threshold level, with an ample margin of safety, when establishing emission standards under Section 112. U.S. EPA has not yet employed this legal authority. Under Section 112(f), residual risk, U.S. EPA must promulgate standards for each category or sub-category of sources pursuant to sub-section (d) in order to provide an ample margin of safety to protect public health and to prevent adverse environmental effects. These standards must be promulgated within eight years after promulgation of standards takes place under Section 112(d). This is not yet an available tool for forcing emission reductions but may become significant in the future. MICHIGAN'S AIR TOXICS RULES States have the option of exercising their independent sovereign authority to act or regulate in the area of toxic air deposition, to account for persistent, bioaccumulative toxic substances and for multiple pathway exposure. Michigan's Rule 228 allows its Department of Environmental Quality (DEQ) to determine, on a case-by-case basis, that the maximum allowable emission rate may not provide adequate protection of human health or the environment. Michigan DEQ may then establish a maximum allowable emission rate, considering all relevant scientific information, such as exposure from routes other than direct inhalation, synergistic or additive effects from other toxic air contaminants, and effects



		on the environment. The scenario assumed that such an assessment had been done, and the decision-maker had considered the estimated impacts in granting the permit, without the availability of any guidance or rule on acceptability of incremental risks when pre-existing risks were already substantial. Legal arguments around Rule 228 would be beneficial to help strengthen or clarify the application of this tool. ZERO DISCHARGE Plaintiff's attorneys emphasized the goal of zero discharge and appeared unwilling to accept any de minimis amount of mercury released into the environment from any sources (even distant ones) that could add any amount via deposition, unless demonstrated to be acceptable under an existing TMDL (total maximum daily load) and waste-load allocation designed to restore all designated uses of the water body, or perhaps if accompanied by an offset. This laudable goal does not appear very practical in the short term since it includes all sources, with no de minimis emission amount or maximum distance criterion. It may, however, be a practical interim step to achieve zero discharge. Such a phased approach would require a risk management decision without a firm foundation in risk assessment, because the scientific certainty may never be available that proves that an adverse environmental or public health effect was caused by a release from a specific source. The decision could establish a schedule with an associated maximum allowable increase over background. For example, the proposed new source could increase the deposition of mercury over background by a maximum of 10% until 2005, 5% by 2010, 1% by 2015, and virtually eliminate additional anthropogenic influences by 2020. Potentially, these limits could be exceeded if demonstrated to be environmentally acceptable as shown, for instance, through a TMDL waste load allocation. RISK CHARACTERIZATION To provide a more complete risk characterization for the permit decision-maker, Michigan DEQ uses, in specific instances, authority under Michigan's Air Toxics Rules to require the evaluation of emission impacts on indirect pathways of human exposure. Legal arguments regarding the scope and significance of such assessments and their findings would be instructive. MODELS The legal cases focused in large part on the extent to which mercury emissions affect mercury levels in fish, with the opinions ranging from little to significant. The debate centered on the efficacy of models and, therefore, the extent to which authorities should rely upon them in decision-making. The debate would be better informed if models and their predictions could be evaluated against real-world data. There may be opportunity to do so. In its Mercury Study Report to Congress, through use of the same type of models as in the workshop, U.S. EPA predicted that incinerators were responsible for about of the mercury deposition in the United States. The models also predicted the extent that mercury levels in fish resident in downwind water bodies would be raised. Most incinerators have all but eliminated their mercury emissions or are about to do so. Municipal waste incinerators must do so by 2000 and medical waste incinerators by 2001. Some incinerators are in the vicinity of Lake St. Clair. Michigan and Ontario have information on mercury levels in fish from the lake before these incinerators began operation, during peak emission periods, and afterwards. Therefore, it should not be difficult to determine whether the elimination of these mercury emissions measurably affected fish. Confounding factors, such as effects arising from mercury in contaminated sediment, would have to be considered. A better test of U.S. EPA's model would be to evaluate trends at an inland lake in close proximity to an incinerator. Suitable lakes should not be difficult to identify. Such an evaluation would go a long way to inform public debate and decision-making.



	APPENDIX C WORKSHOP PARTICIPANTS Ms. Judy Allen Central UP Chapter Sierra Club 318 East Prospect Street Marquette, Michigan 49855 Mr. Dennis Armbruster Assistant Division Chief Surface Water Quality Division Michigan Department of Environmental Quality P.O. Box 30273 Lansing, Michigan 48909-7773 Ms. Pharah Bacchus 1650 Goyeau Street Windsor, Ontario N8X 3L6 Mr. Thomas P. Behlen Director Great Lakes Regional Office International Joint Commission 100 Ouellette Avenue 8^th Floor Windsor, Ontario N9A 6T3 Mr. Paul Benington Environmental Law Clinic University of Michigan Law School 503 Elm Street #2 Ann Arbor, Michigan 48104 Mr. Rob Bloxam Atmospheric Studies Standards Development Branch Ontario Ministry of the Environment 125 Resources Road Etobicoke, Ontario M9P 3V6
			Ms. Esther Bobet Manager Air and Inventories Division Environmental Protection Branch Ontario Region Environment Canada 4905 Dufferin Street 2^nd Floor Downsview, Ontario M3H 5T4 Marty Bratzel. Great Lakes Regional Office International Joint Commission 100 Ouellette Avenue 8^th Floor Windsor, Ontario N9A 6T3 Mr. Timothy H. Brown Co-Director Delta Institute 53 West Jackson #1604 Chicago, Illinois 60622 Mr. Andy Buchsbaum National Wildlife Federation 506 East Liberty Street 2^nd Floor Ann Arbor, Michigan 48104-2210 Ms. Alice Chamberlin Commissioner International Joint Commission R.D. 1 Burnt Hill Warner, New Hampshire 03278 Ms. Ruth Chemerys Office of Wetlands, Oceans & Watersheds U.S. Environmental Protection Agency 401 M Street SW, 4503-F Washington, D.C. 20460 Ms. Jennifer Day Director Public Affairs Great Lakes Regional Office International Joint Commission 100 Ouellette Avenue 8^th Floor Windsor, Ontario N9A 6T3



		Mr. D. Wayne Draper Associate Director Transboundary Air Issues Branch Environment Canada Place Vincent Massey 351, boul. St-Joseph, 11^e étage Hull, Québec K1A 0H3 Dr. Gary J. Foley Director National Exposure Research Laboratory (MD-75) U.S. Environmental Protection Agency Catawba Building, Progress Center 3210 Highway 54 Research Triangle Park, North Carolina 27709 Mr. Gary Gulezian Director Great Lakes National Program Office U.S. Environmental Protection Agency (G-17J) 77 West Jackson Boulevard Chicago, Illinois 60604 Ms. Susan Hedman Environmental Law and Policy Center 35 East Wacker Suite 1300 Chicago, Illinois 60601 Mr. Peter D. Holmes Clark Hill PLC 500 Woodward Avenue Suite 3500 Detroit, Michigan 48226-3435 Dr. Keri C. Hornbuckle Department of Civil and Environmental Engineering Center for Global and Regional Environmental Research 120 IATL University of Iowa Iowa City, Iowa 52242 Mr. Neil Kagan Great Lakes Natural Resource Center National Wildlife Federation 506 East Liberty Street 2^nd Floor Ann Arbor, Michigan 48104-2210 Mr. Robert Krauel Manager Environmental Contaminants and Nuclear Programs Division Environmental Protection Branch Ontario Region Environment Canada 4905 Dufferin Street 2^nd Floor Downsview, Ontario M3H 5T4		Mr. George H. Kuper Council of Great Lakes Industries P.O. Box 134006 Ann Arbor, Michigan 48113-4006 Ms. Jane Latham Blake, Cassels and Graydon Box 25, Commerce Court West Toronto, Ontario M5L 1A9 Mr. Leonard H. Legault Chairman Canadian Section International Joint Commission 100 Metcalfe Street, 18^th Floor Ottawa, Ontario K1P 5M1 Ms. Lisa Lentz The Detroit Edison Company 2000 2^nd Avenue Detroit, Michigan 48226-1279 Mr. Dennis Leonard Principal Engineer The Detroit Edison Company 2000 2^nd Avenue 485 WCB Detroit, Michigan 48226-1279 Jim Livingston University of Windsor Windsor, Ontario N9B 3P4 Mr. Gary Martin Technical Support Manager Southwestern Region Ontario Ministry of the Environment 985 Adelaide Street South London, Ontario N6E 1V3 Mr. John L. Martin Miller Thomson 60 Columbia Way Suite 600 Markham, Ontario L3R 0C9 Ms. Beverly McClellan Lake Michigan Federation 220 South State Street Suite 2108 Chicago, Illinois 60604 Mr. John McDonald Great Lakes Regional Office International Joint Commission 100 Ouellette Avenue 8^th Floor Windsor, Ontario N9A 6T3



	Ms. Shelley McGuire 260 Randolph Place Apt. 307 Windsor, Ontario N9B 2T3 Dr. Donald C. McKay Director Air Quality Research Branch Atmospheric Environment Service Environment Canada 4905 Dufferin Street Downsview, Ontario M3H 5T4 Mr. G. Tracy Mehan III Director Office of the Great Lakes Michigan Department of Environmental Quality P.O. Box 30473 Lansing, Michigan 48909 Mr. Patrick Moran Counsel Legal Services Branch Ontario Ministry of the Environment 135 St. Clair Avenue West 10^th Floor Toronto, Ontario M4V 1P5 Mr. Paul Muldoon Canadian Environmental Law Association 517 College Street Suite 401 Toronto, Ontario M6G 4A2 Mr. Frank Murphy Commissioner International Joint Commission 100 Melcalfe Street 18^th Floor Ottawa, Ontario K1P 5M1 Mr. Todd Nettesheim U.S. Environmental Protection Agency Region 5 Mailcode: AR-18J 77 West Jackson Boulevard Chicago, Illinois 60604 Mr. Edward W. Piché Director Environmental Monitoring and Reporting Ontario Ministry of the Environment 125 Resources Road West Wing Etobicoke, Ontario M9P 3V6			Mr. Richard L. Prosise Bureau of Legal Services Wisconsin Department of Natural Resources P.O. Box 7921 Madison, Wisconsin 53707 Ms. Karen H. Schodowski Assistant U.S. Attorney Office of the U.S. Attorney 211 West Fort Street Suite 2001 Detroit, Michigan 48226-3211 Mr. Tom Shanley Air Quality Division Michigan Department of Environmental Quality P.O. Box 30260 Lansing, Michigan 48909 Mr. Vic Shantora Director General Toxic Pollution Prevention Directorate Environment Canada 351, St. Joseph Boulevard 13^th Floor Ottawa, Ontario K1A 0H3 Ms. Laura Shaw Canadian Environmental Law Association 517 College Street Suite 401 Toronto, Ontario M6G 4A2 Mr. Robert Sills Toxicology Specialist Air Quality Division Michigan Department of Environmental Quality P.O. Box 30260 Lansing, Michigan 48909 Mr. Toshi Takishita 3-1231 University Avenue West Windsor, Ontario N9A 5T2 Ms. Joy Taylor Air Quality Division Michigan Department of Environmental Quality P.O. Box 30260 Lansing, Michigan 48909



		Mr. Randal S. Telesz Senior Engineering Specialist Air Quality Division Michigan Department of Environmental Quality P.O. Box 30260 Lansing, Michigan 48909 Mr. Luke J. Trip Manager Heavy Metals Air Issues Environmental Protection Service Environment Canada 351 St. Joseph Boulevard Hull, Québec K1A 0H3 Mr. David Ullrich Deputy Regional Administrator U.S. Environmental Protection Agency, Region V 77 West Jackson Boulevard, R-19-J Chicago, Illinois 60604 Ms. Marcia Valiante Faculty of Law University of Windsor Windsor, Ontario N9B 3P4 Mr. Michael Vechsler Legal Adviser International Joint Commission 100 Metcalfe Street 18^th Floor Ottawa, Ontario K1P 5M1 Mr. Rob Vitale Great Lakes Regional Office International Joint Commission 100 Ouellette Avenue 8^th Floor Windsor, Ontario N9A 6T3 Mr. John Wachtler Mercury Reduction Initiative Coordinator Minnesota Pollution Control Agency 520 Lafayette Road St. Paul, Minnesota 55155 Mr. Alan Waffle Environment Canada 4905 Dufferin Street Downsview, Ontario M3H 5T4		Mr. Randall G. Waite Great Waters Program Office of Air Quality Planning and Standards Environmental Protection Agency Mailroom, MD-13 Research Triangle Park, North Carolina 27711 Ms. Bobbie Walker 260 Randolph Place Apt. 407 Windsor, Ontario N9B 2T3 Mr. Peter L. Wise Associate Director Illinois Environmental Protection Agency Present Affiliation: Senior Consultant and Principal Kestrel Management Services 1247 Heather Road Homewood, Illinois 60430 Mr. James Zarull 17 Raglan Avenue Apartment # 2 Toronto, Ontario M6C 2K7



	APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN FRIENDS OF LAKE HYPO, Plaintiff, vs. ACME WIDGET, Defendant. __________________________________ PLAINTIFF FRIENDS OF LAKE HYPO's MOTION FOR SUMMARY JUDGMENT __________________________________ Neil S. Kagan Paul Benington



		TABLE OF CONTENTS I. STATEMENT OF ISSUES PRESENTED 97 II. MOST APPROPRIATE AUTHORITY FOR RELIEF SOUGHT 97 A. Relief Sought Under The Clean Water Act 97 1. A judgment declaring that Acme Widget's proposed discharge of mercury is subject to the requirements of the Clean Water Act 97 2. A permanent injunction 98 B. Resource Conservation And Recovery Act 99 1. A judgment restraining Acme from disposing of solid or hazardous waste in Lake Hypo, or ordering Acme Widget to take such other action as may be necessary, or both 99 III. STATEMENT OF FACTS 100 IV. ARGUMENT 101 A. Standard For Summary Judgment 101 B. Acme may not operate without a Clean Water Act permit, because it would discharge mercury into Lake Hypo from a point source 101 1. The goal of the Clean Water Act is to restore and maintain the quality of the Nation's waters 101 a. Congress intended the Clean Water Act to be applied broadly to achieve its goals 101 b. As a remedial statute, the Clean Water Act must be liberally construed 102 2. The Clean Water Act prohibits the discharge of any pollutant to navigable waters from any point source without an NPDES permit 102 3. Acme's facility would discharge a pollutant into navigable waters from a point source 102 a. Acme's stack is a point source under the Clean Water Act 102 (1) Consistent with Congressional intent, courts have interpreted the term "point source" broadly to include any identifiable conveyance from which pollutants are or may be discharged. 102 (2) Since Congress expressly excepted certain sources from the definition of the term "point source," additional exceptions should not be inferred 103 b. Mercury is a toxic pollutant 104



	c. Mercury from Acme's stack would be deposited into Lake Hypo 104 (1) Modeling predicts that mercury from Acme's stack would be deposited into Lake Hypo 104 (2) Courts and agencies rely on models such as the one used here to predict the deposition of mercury emanating from Acme's stack. 105 d. Indirect discharges, such as the mercury that would be discharged by Acme's stack, are within the purview of the Clean Water Act 105 (1) Legislative history establishes that Congress intended to prohibit pollution from indirect discharges 105 (2) Courts have interpreted "discharge" to include indirect discharges 106 (3) The legal and factual setting in this case is readily distinguishable from the one case in which a court decided that discharges from a stack are not within the purview of the Clean Water Act. 107 C. No permit may be issued to Acme because its discharge will cause or contribute to the violation of the water quality standard for Lake Hypo 108 1. A Clean Water Act permit may not be issued to a new source that will cause or contribute to the violation of a water quality standard 108 a. A Clean Water Act permit may not be issued to a new source that will worsen the existing impairment of a designated use 110 b. A Clean Water Act permit may not be issued to a new source that will lower the water quality with respect to a pollutant which is causing an impairment to a designated use 110 2. The mercury that would be discharged by Acme Widget's stack and deposited in Lake Hypo will cause or contribute to the existing violation of Lake Hypo's water quality standard 110 a. The water quality standard for Lake Hypo has already been violated 110 b. Acme's discharge will worsen the existing impairment of a designated use 111 c. Acme's discharge will lower Lake Hypo's water quality with respect to mercury, which is impairing a designated use 111 D. Acme's compliance with the Clean Air Act does not preclude regulation of its facility under the Clean Water Act 111 E. Contrary to the Resource Conservation and Recovery Act, Acme Widget would contribute to the disposal of a solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment 112 1. Congress established a national policy to dispose of hazardous waste such as mercury "so as to minimize the present and future threat to human health and the environment" 112 2. The Resource Conservation and Recovery Act empowers citizens to sue any person who is contributing to the disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment 112



		a. "Solid waste" includes emissions of mercury into the air that are deposited into water 113 b. "Imminent" requires that a risk of future harm exists 113 c. "Substantial" requires some cause for concern that someone is exposed to risk, not a quantification of risk 113 d. "Endangerment" does not require proof of actual harm, only a threatened or potential harm 114 V. CONCLUSION 116



	I. STATEMENT OF ISSUES PRESENTED Facilities that emit toxic substances into the atmosphere contribute significantly to the pollution of waters within the Great Lakes basin, because some of those substances are eventually deposited in the water. One toxic substance emitted into the air that later falls into the water is mercury. Mercury is a neurotoxin that not only persists in the environment for a very long time, but also accumulates in plant and animal tissue in ever increasing concentrations as it moves up through the food chain. The overarching issue this case presents is whether existing laws designed to protect water quality provide the means to control the atmospheric deposition of mercury traceable to a particular facility. More specifically, this case presents the following issues: May Acme Widget ("Acme") operate a facility without a water quality permit when the mercury it would emit into the air would fall into Lake Hypo, polluting the water? May Acme even get a water quality permit when the mercury spewed from its stack would contribute to a violation of the water quality standard for Lake Hypo by exacerbating the existing impairment of its warmwater fishery and lowering its water quality? May Acme operate its stack when doing so would contribute to the deposition of mercury into Lake Hypo, presenting an imminent and substantial endangerment to health or the environment? Friends of Lake Hypo ("Friends") will show that the proper answer to each of these questions is "no." Under the circumstances in this case, either the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"), or the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), prevents Acme from further contaminating the waters of Lake Hypo with mercurya persistent, bioaccumulative toxic substance. II. MOST APPROPRIATE AUTHORITY FOR RELIEF SOUGHT A. Relief Sought Under The Clean Water Act 1. A judgment declaring that Acme Widget's proposed discharge of mercury is subject to the requirements of the Clean Water Act. The Declaratory Judgment Act empowers the federal courts to declare the rights and legal relations between the parties to an actual controversy. 28 U.S.C. § 2201. Declaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Grand Trunk Western Railroad Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) Friends seek a declaratory judgment that § 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits Acme from discharging mercury from its stack into Lake Hypo without first getting a permit pursuant to § 402(a) of the CWA, 33 U.S.C. § 1342(a).



		2. A permanent injunction. The citizen suit provision of the CWA, § 505(a), 33 U.S.C. § 1365(a), empowers the federal courts to enforce an effluent standard or limitation against any person violating such a standard or limitation. Specifically, the CWA provides, "any citizen may commence a civil action . . . against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter . . . ." CWA, § 505(a)(1), 33 U.S.C. § 1365(a)(1). The CWA further provides, "The district courts shall have jurisdiction . . . to enforce such an effluent standard or limitation." Id. at § 505(a), 33 U.S.C. § 1365(a). "[T]he term `effluent standard or limitation under this chapter' means [among other things] . . . an unlawful act under subsection (a) of section 1311 of this title . . . ." CWA, § 505(f), 33 U.S.C. § 1365(f). In other words, the term "effluent standard or limitation under this chapter" includes the discharge of a pollutant contrary to § 301(a) of the CWA, 33 U.S.C. § 1311(a). That section prohibits the discharge of a pollutant in the absence of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to § 402(a) of the CWA, 33 U.S.C. § 1342(a). Since Acme does not have an NPDES permit, its discharge of a pollutant into Lake Hypo would be contrary to § 301(a). As a result, Friends may bring this citizen suit to stop the operation of Acme's facility. Cf. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 50 F.Supp.2d 443, 445 (D. Md. 1999) (a citizen suit may be brought against a point source discharging a pollutant not listed on the point source's NPDES permit, because the discharge of that pollutant would violate an effluent standard or limitation by violating § 301(a)'s prohibition on discharges without an NPDES permit). Moreover, Acme can not get an NPDES permit, because under its current plans of operation it would contribute to a violation of the water quality standard for Lake Hypo. See 40 C.F.R. § 122.4(I). Accordingly, Friends seek an order permanently enjoining Acme from operating its facility as currently planned. In the alternative, Friends seek an order permanently enjoining Acme from operating its facility unless and until it complies with § 402(a) of the CWA, 33 U.S.C. § 1342(a), by applying for and obtaining an NPDES permit. Ignoring the plain language of the citizen suit provision, Acme contends that a citizen suit may only seek to enforce limitations or conditions incorporated into an existing NPDES permit. Acme, of course, has no NPDES permit. Mistaking Friends' suit to be one seeking to enforce a water quality standard not incorporated into an existing permit, rather than one seeking to enforce the requirement to get a permit, Acme concludes that Friends' suit is improper. Acme cites three cases in support of its conclusion, but they are either distinguishable or inapposite. The first case, Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353 (2nd Cir. 1993), does not stand for the proposition that a discharger without a permit is immune from a citizen suit because it has no legal obligations. In that case, Eastman-Kodak had a permit. An environmental group sued the company for discharging substances that were not listed in the permit. The court found that, although the permit did not specifically assign effluent limitations for those pollutants, they had been regulated under the agency's reporting requirements. See id. at 356. Therefore, Eastman-Kodak satisfied both the permit limitations and the reporting requirements established by the agency. See id. at 357. In Acme's case, no permit or reporting requirements have been met. In the second case Acme cites, Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842 (9th Cir. 1987), an environmental group sued the Forest Service to stop a timber sale. One of the claims was that timber harvesting and the associated road construction would violate state water quality standards, and that the Forest Service's failure to comply with those standards would violate the CWA. The court dismissed the CWA claim because it "did not believe that the Act allows for the enforcement of state water quality standards, as affected by non-point sources, under the citizen suit provision." Id. at 849 (emphasis added). The plaintiffs conceded "that section 1311(a) of the Act refers specifically to point source discharges, . . . which are not at issue in this case." Id. at 848-49. Acme's discharge, on the other hand, is from a point source. Therefore, Oregon Natural Resource Council is not on point.



	Finally, in relying on EPA v. California ex rel State Water Resources Control Bd., 426 U.S. 200, 205 (1976), Acme confuses the issue of whether water quality standards not incorporated into a permit are enforceable with the issue of whether the obligation to get a permit is enforceable. According to Acme, the court said "it is the NPDES permit that translates water quality standards into enforceable obligations of the discharger." The accuracy of Acme's characterization of the case notwithstanding, the case neither addresses, nor precludes, a citizen suit brought to enforce the requirement that a discharger get a permit. Moreover, the case only concerned whether federal facilities are subject to state permit requirements; it did not address citizen suits at all. See id. at 200. B. Resource Conservation And Recovery Act 1. A judgment restraining Acme from disposing of solid or hazardous waste in Lake Hypo, or ordering Acme Widget to take such other action as may be necessary, or both. The citizen suit provision of the RCRA, 42 U.S.C. § 6972(a)(1)(B), empowers the federal courts "to restrain any person who has contributed or who is contributing to the past or present . . . disposal of any solid or hazardous waste [which may present an imminent and substantial endangerment to health or the environment] . . . [or] to order such person to take such other action as may be necessary, or both." Friends invoke this authority to restrain Acme from operating its facility as currently planned. Otherwise, Acme would contribute to the deposition of mercury into Lake Hypo, further contaminating fish that inhabit the lake and increasing the existing danger to the health of humans who consume such fish. Contrary to Acme's claim, nothing in the case law suggests that Friends cannot bring this RCRA citizen suit. Acme bases its claim, in part, on the decision in Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188 (6th Cir. 1995). In that case, the plaintiff attempted to enjoin a facility that had already received a federally approved state hazardous waste permit. The court concluded that the plaintiff's allegations of imminent and substantial endangerment were not serious enough to warrant reopening an issue that had already been resolved at the state and federal level. Coalition for Health Concern, 60 F.3d at 1189. That case is distinguishable from this, because the defendant there had obtained a state hazardous waste permit. Id. Acme has not, and has not even applied for one. Acme's reliance on Greenpeace, Inc. v. Waste Technologies Industries, 9 F.3d 1174 (6th Cir. 1993) is similarly misplaced. The court dismissed the case because the defendant already had a hazardous waste permit. Greenpeace, 9 F.3d at 1176, 1179-81. Both in Coalition for Health Concern and Greenpeace, the courts' decisions were influenced by their determination that the suits were merely a "collateral attack on [the] hazardous waste permitting process." Coalition for Health Concern, 60 F.3d at 1192; see Greenpeace, 9 F.3d at 1176. The plaintiffs had stopped participating in the public administrative permitting process, ignored RCRA's administrative appeals process, and went straight to the courts. Coalition for Health Concern, 60 F.3d at 1189; Greenpeace, 9 F.3d at 1176. The present case would be analogous only were Friends bringing a Clean Air Act ("CAA") citizen suit (because Acme has already obtained a CAA permit), or if Acme had obtained a hazardous waste permit. Acme nevertheless argues that Friends may not bring a RCRA citizen suit, because the Michigan Department of Environmental Quality ("MDEQ") issued an air permit to Acme authorizing it to operate its facility. The flaw in this argument is that an air permit, at best, assures compliance with the CAA, but not with RCRA. Acme's air permit is no substitute for a state hazardous waste permit. See Orchard v. Pete Lien & Sons Inc., 34 Envtl. Rept. Cases ("ERC") 1749, 1750 (D. Co. Jan. 8, 1992) ("I see nothing in the statutes which say [sic] that if someone is complying with Clean Air Act permits that there cannot also be a suit under RCRA, a citizen suit under section 6972."). Acme also argues that MDEQ issued an air permit, even though it "may deny" one to a source whose "operation presents an imminent and substantial endangerment to human health, safety, or welfare or to the environment." Natural Resources and Environmental Protection Act ("NREPA") Mich. Comp. Laws § 324.5510(b) (emphasis added). Based on this, Acme claims that MDEQ implicitly determined that Acme's operation did not present an imminent and substantial endangerment, precluding a RCRA



		citizen suit. No such inference may be drawn, however. The statutory language is permissive, not obligatory. MDEQ "may," but need not deny an air permit to a source that presents an imminent and substantial endangerment. Moreover, compliance with NREPA does not ensure compliance with RCRA. Even were MDEQ deemed to have implicitly determined that Acme's operation does not definitely present an imminent and substantial endangerment, it did not determine that Acme's operation may not present such an endangerment. Under RCRA, of course, Friends are entitled to bring a citizen suit even if the disposal of solid or hazardous waste "may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). III. STATEMENT OF FACTS Lake Hypo has a maximum length and width of 45 kilometers by 40 kilometers, and a maximum depth of 6.5 meters. Its surface area is 1,115 square kilometers and its shoreline length is 272 kilometers. Ninety-eight percent of the water enters the lake via the Hypo River, which has an average discharge of 5,200 cubic meters per second, with a range between 3,000 and 6,700 cubic meters per second. The average flush time is five to seven days. The State of Michigan has designated Lake Hypo for use as a warmwater fishery. Warmwater fish species found in the lake include bass, pike, and walleye. Mercury is present in the water columnboth of Hypo River and Lake Hypoat a concentration of two nanograms per liter. Based on the average flow of Hypo River, this translates to an average annual mercury loading of 328 kilograms. Michigan has also issued mercury-based fish consumption advisories for bass, pike, walleye, and several other fish species found in Lake Hypo. As a result of these fish consumption advisories, Michigan has included the lake on its list of water quality limited segments under § 303(d) of the CWA, 33 U.S.C. § 1313(d). The EPA has approved the § 303(d) listing of the lake. Acme Widget is located near the southeast corner of Lake Hypo, on the river that drains the lake. Michigan has issued an air permit to Acme, allowing it to emit mercury from a stack 90 meters high with an exit diameter of 2.5 meters at the rate of 193.1 kilograms per year, or 0.21 tons per year, assuming near continuous operation. Half of the mercury would be emitted in the form of mercury chloride, half as elemental mercury. The air permit is the only permit Michigan has issued to Acme. The prevailing wind would carry the plume from Acme across Lake Hypo a major fraction of the time, that is to say, thirty to forty percent of the time. That means sixty to eighty kilograms of Acme's annual mercury emissions would be transported across the lake. Taking into account the characteristics of Acme's stack, a computer dispersion model developed by the Ontario Ministry of Environment estimated that the average annual concentration of mercury across the area of Lake Hypo would be thirty to forty picograms per cubic meter. The same model has previously yielded results similar to those generated by the EPA's Industrial Source Complex model. The total annual background deposition of mercury to Lake Hypo is nine kilograms. No mercury sources other than Acme are large enough or close enough to the lake to contribute a significant amount of mercury to the background deposition. Computer modeling predicts that the combined annual dry and wet deposition of mercury attributable to Acme's emissions would also be nine kilograms. During the air permitting process, a multi-pathway risk assessment was conducted that predicted that Acme would contribute to an increase in the mercury levels in fish inhabiting Lake Hypo. All mercury deposited in the lake as a result of Acme's emissions would manifest itself through an increase in the concentration of methyl mercury in fish. Methyl mercury, which bioaccumulates, poses the greatest threat to human and ecosystem health. The additional nine kilograms of mercury in the water that would come from Acme's stack would result in a 0.6% to 3% increase in the concentration of methyl mercury in fish. A three percent increase would



	be significant, and would lead to fish consumption advisories that would apply to smaller-sized fish and would be more restrictive for at-risk populations, such as children, pregnant women, women of childbearing age, aboriginal and certain subsistence populations, and perhaps recreational anglers. IV. ARGUMENT A. Standard For Summary Judgment Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). B. Acme may not operate without a Clean Water Act permit, because it would discharge mercury into Lake Hypo from a point source. 1. The goal of the Clean Water Act is to restore and maintain the quality of the Nation's waters. The objective of the CWA "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA, § 101(a), 33 U.S.C. § 1251(a). To achieve this objective, Congress declared, among other things, that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," and that "it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited." Id. at § 101(a)(1) & (3), 33 U.S.C. § 1251(a)(1) & (3). The enactment of the CWA followed Congress's finding that "the [prior] national effort to abate and control water pollution has been inadequate in every vital aspect." S. Rep. No. 92-414, 92d Cong., 1st Sess. 7 (1971), reprinted in 2 Legislative History of the Water Pollution Control Act Amendments of 1972, at 1415, 1425 ("Legislative History"); U.S. Code Cong. & Admin. News 1972, pp. 3668, 3674. That finding led Congress to adopt the CWA, which the Supreme Court has described as "a comprehensive water quality statute." See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704 (1994). The intended extent of the CWA's objective to restore and protect the quality of the Nation's waters is revealed by the report of the House Committee on Public Works, which described the objective "in the broadest possible terms," Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617, 624 (8th Cir. 1979): Subsection (a) of section 101 declares the objective of this legislation to be the restoration and maintenance of the chemical, physical, and biological integrity of the Nation's waters. The word "integrity" as used is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is maintained. . . . Any change induced by man which overtaxes the ability of nature to restore conditions to "natural" or "original" is an unacceptable perturbation." (Emphasis added.) H. Rep. No. 92-911, 92d Cong., 2d Sess. 76-77 (1972), reprinted in 1 Legislative History 753, 763-764. a. Congress intended the Clean Water Act to be applied broadly to achieve its goals. Congress's purpose in enacting the CWA was both "broad and remedial" in nature. Minnehaha Creek Watershed District, 597 F.2d at 624. "The [CWA] was designed to regulate to the fullest extent possible those sources emitting pollution into rivers, streams and lakes." U.S. v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979) (emphasis added). The ambitious nature of the CWA's goals has prompted the observation that "the CWA should be liberally construed to achieve its objectives." Scott v. City of Hammond, Ind., 741 F.2d 992, 998 (7th Cir. 1984); see also PUD No. 1 of Jefferson County, 511 U.S. at 704.



		b. As a remedial statute, the Clean Water Act must be liberally construed. A "well-accepted principle" of statutory interpretation is that remedial legislation must be liberally construed to give effect to its purpose. See U.S. v. An Article of Drug . . . Bacto-Unidisk, 394 U.S. 784, 798 (1969); Stroh v. Director of Office of Workers' Compensation Programs, U. S. Dept. of Labor, 810 F.2d 61 (3d Cir. 1987); Scott, 741 F.2d at 998; International Nutrition, Inc. v. U.S. Dept. of Health & Human Services, 676 F.2d 338, 341 (8th Cir. 1982). In An Article of Drug, for instance, the court found that a laboratory aid could be considered a drug even though it met the statutory definition of a "device," which was expressly excluded from the statutory definition of a "drug." See An Article of Drug, 394 U.S. at 789, 798; 21 U.S.C. § 321(g)(1)(D) (a drug "does not include devices"). In drawing this conclusion, the Supreme Court rejected the narrow construction that the lower courts gave to the term "drug," saying "we are all the more convinced that we must give effect to congressional intent in view of the well-accepted principle that remedial legislation such as the Food, Drug, and Cosmetic Act is to be given a liberal construction consistent with the Act's overriding purpose to protect the public health." An Article of Drug, 394 U.S. at 798. Similarly, in Stroh, the court affirmed the agency's broad interpretation of the statutory term "miner"¹ to include a self-employed truck driver who never entered a mine and whose commercial activity was between a mine and processing plants located elsewhere. See Stroh, 810 F.2d at 63. Courts have liberally construed provisions of the CWA itself to effectuate its ambitious goals. For instance, the CWA defines the term "navigable waters" as "the waters of the United States, including the territorial seas." CWA, § 502(7), 33 U.S.C. § 1362(7). "Federal Courts have interpreted this directive broadly to include waters tributary to those which are navigable in fact." Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428, 1431 (D. Co. 1993), citing Quivira Mining Co. v. U.S. Environmental Protection Agency, 765 F.2d 126, 129 (10th Cir. 1985). The CWA's civil action enforcement provision also has been interpreted broadly to allow courts to exercise their discretion in achieving the statute's goals. See U.S. v. Telluride Co., 146 F.3d 1241, 1248 (10th Cir. 1998). Similarly, the Seventh Circuit created the "constructive submission" doctrine to give effect to the CWA's restoration provision after a state refused to implement the provision over a long period of time. See Scott, 741 F.2d at 998. 2. The Clean Water Act prohibits the discharge of any pollutant to navigable waters from any point source without an NPDES permit. In furtherance of Congress's objective to restore and maintain water quality, the CWA prohibits the discharge of any pollutant to navigable waters by a point source, unless the point source first gets a permit: Except as in compliance with this section and section[] . . . 1342 [§ 402, authorizing the issuance of a permit] . . . , the discharge of any pollutant by any person shall be unlawful. CWA, § 301, 33 U.S.C. § 1311(a). 3. Acme's facility would discharge a pollutant into navigable waters from a point source. a. Acme's stack is a point source under the Clean Water Act. (1) Consistent with Congressional intent, courts have interpreted the term "point source" broadly to include any identifiable conveyance from which pollutants are or may be discharged. The CWA defines the term "point source" as follows:


		1 "The term miner means any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. Such term also includes an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent such individual was exposed to coal dust as a result of such employment." 30 U.S.C. § 902(d).



	The term "point source" means any discernible, confined and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. CWA, §502(14), 33 U.S.C. §1362(14) (emphasis added). The plain meaning of the phrase "including, but not limited to" is that the list of point sources given in the statutory definition is not exhaustive. The courts have recognized that Congress gave the term an open-ended definition so it would be construed expansively. "The concept of a point source was designed to further th[e statutory] scheme [establishing the permit requirement] by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States." Earth Sciences, 599 F.2d at 373; see also Kennecott Copper Corp. v. Environmental Protection Agency, 612 F.2d 1232, 1243 (10th Cir. 1979) ("Congress . . . purposely phrased th[e] definition broadly."); San Francisco Baykeeper v. Tidewater Sand & Gravel Co., No. C 96-01531 CW, 1997 U.S. Dist. LEXIS 22602, at 22 (N.D. Cal. Sep. 9, 1997) ("The term `point source' should be construed broadly to effectuate the remedial purposes of the Clean Water Act."). To exempt any activity that emits pollution from an identifiable point from regulation would be to contravene the CWA. See Earth Sciences, 599 F.2d at 373. "The touchstone for finding a point source is the ability to identify a discrete facility from which pollutants have escaped." Washington Wilderness Coalition v. Hecla Mining Co., 870 F. Supp. 983, 988 (E.D. Wash. 1994). Courts have held a broad range of sources to be point sources. They run the gamut from piles of mined materials or sand, to bulldozers and backhoes, to pressurized sprays from irrigation systems or hoses. See United States v. Schallom, 998 F.2d 196, 198 (4th Cir. 1993); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983); Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41, 45 (5th Cir. 1980); San Francisco Baykeeper, 1997 U.S. Dist. LEXIS 22602, at 21-24; United States v. Oxford Royal Mushroom Prods., Inc., 487 F. Supp. 852, 854 (E.D. Pa. 1980). As a structure 90 meters high with an exit diameter of 2.5 meters, Acme's stack is easily identifiable as a discrete facility from which pollutants would escape. Nor is the fact that a pollutant would escape from the stack in any dispute. Without question, the stack is a point source. (2) Since Congress expressly excepted certain sources from the definition of the term "point source," additional exceptions should not be inferred. In generally prohibiting pollution from any point source, that is to say, "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged," Congress expressly carved out two exceptions. CWA, § 502(14), 33 U.S.C. § 1362(14) (emphasis added). Specifically, Congress excluded "agricultural stormwater discharges and return flows from irrigated agriculture" from the definition. Id. Congress thus deliberately placed only two identifiable points of pollution beyond regulation. The import of that conscious choice is that all other identifiable points of pollution are subject to regulation, including Acme's stack. "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent." Andrus v. Glover Construction Co., 446 U.S. 608, 616-17 (1980) (holding that a prohibition on contracts negotiated without advertising extends to all contracts not expressly excluded from the prohibition); see also Lieberman v. FTC, 771 F.2d 32 (2d Cir. 1985) (finding that a provision barring public disclosure, except for disclosure to Congress, barred the disclosure of the information to other public officials). The history of the CWA confirms that the only exceptions to the coverage of the term "point source" should be the two Congress named. When Congress enacted the CWA, it rejected an amendment excepting return flows from irrigated agriculture from the definition of a point source. Consequently, the EPA "considered irrigation return flows and rainfall runoff to be point sources if the return flows and runoff were in any way channeled or collected by human activity prior to being discharged into the



		waters of the United States." Susan E. Schell, The Uncertain Future of Clean Water Act Agricultural Pollution Exemptions After Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995), 31 Land & Water L. Rev. 113, 130 n.4 (1996) (quoting Drew L. Kershen, Agricultural Water Pollution: From Point to Nonpoint and Beyond, NAT. RESOURCES & ENV'T, Winter 1995, at 3). Later, the EPA attempted to exempt from CWA permit requirements "(d)ischarges of pollutants from agricultural and silvicultural activities, including irrigation return flow and runoff from orchards, cultivated crops, (and) pastures," and "(d)ischarges from animal confinement facilities" below a certain size. See id. at 119, 130 n.46; see also 40 C.F.R. S 125.4(j) (1975). The EPA argued that requiring permits for all point sources would overwhelm the agency with millions of applications and that "to conserve the Agency's enforcement resources for more significant point sources of pollution, it is necessary to exclude these smaller sources of pollutant discharges from the permit program." Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1373, 1377- 82 (D.C. Cir. 1977). The EPA's attempt to narrow the coverage of the term "point source" was challenged in Costle. The court there held that the technological or administrative infeasibility of promulgating effluent limitations for a point source may result in adjustments in the permit program, but it does not authorize the EPA to exclude the point source from the NPDES program. Costle, 568 F.2d at 1379. The court found "a plain Congressional intent to require permits in any situation of pollution from point sources" saying exceptions to this rule can only be created by Congress. Id. at 1383; accord Scenic Hudson Preservation Conference v. Callaway, 370 F. Supp. 162, 170 (S.D.N.Y. 1973) (finding implausible the argument that Congress intended to establish an exception for hydroelectric plants where the CWA, on its face, is all-inclusive, but for specifically enumerated exceptions; were the omission of an exception for hydroelectric plants a mere oversight, the remedy lies with Congress.) Congress eventually created an exception for return flows from irrigated agriculture when it amended the CWA in 1977. Clean Water Act of 1977, Pub. L. No. 95-217, sec. 33(b), § 502(14), 91 Stat. 1566, 1577 (1977). Ten years later, Congress created the second exception to the definition of the term "point source," for agricultural stormwater discharges. Water Quality Act of 1987, Pub. L. No. 100-4, sec. 503, § 502(14), 101 Stat. 7, 75 (1987). Congress has never, however, created an exception for a stack, like Acme's, that is an identifiable point of pollution, nor does any evidence of a legislative intent to exclude it exist. Consequently, its exception from the definition of the term "point source" must not be inferred. b. Mercury is a toxic pollutant. The CWA directs the EPA to publish a list of the toxic pollutants that must be regulated. See CWA, § 307, 33 U.S.C. §1317(a)(1) (1986). In doing so, the EPA "shall take into account toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms." Id. Pursuant to these instructions, the EPA classified mercury and its compounds as toxic pollutants subject to regulation and permitting under the NPDES. See 40 C.F.R. §§401.10, 401.15 (1998). The EPA has also classified mercury as a bioaccumulative chemical of concern ("BCC"), as has Michigan. 40 C.F.R. § 132, Table 6.A.; Mich. Adm. Code r. 323.1057, Table 5. Michigan defines a BCC as "a chemical which, upon entering the surface waters, by itself or as its toxic transformation product, accumulates in aquatic organisms by a human health bioaccumulation factor of more than 1000 after considering metabolism and other physiochemical properties that might enhance or inhibit bioaccumulation." Mich. Adm. Code r. 323.1043(l). To this definition, the EPA adds that a BCC is "any chemical that has the potential to cause adverse effects." 40 C.F.R. § 132.2. c. Mercury from Acme's stack would be deposited into Lake Hypo. (1) Modeling predicts that mercury from Acme's stack would be deposited into Lake Hypo.



	Taking into account the characteristics of Acme's stack, a computer dispersion model developed by the Ontario Ministry of the Environment estimated that the stack would create an average annual concentration of mercury across the area of Lake Hypo of thirty to forty picograms per cubic meter. The same model has previously yielded results similar to those generated by the EPA's Industrial Source Complex model. Computer modeling also predicts that the annual deposition of mercury to Lake Hypo attributable to Acme's emissions would be nine kilograms. During the air permitting process, a multi-pathway risk assessment was conducted that further predicted that mercury emitted by Acme's stack would contribute to an increase in the mercury levels in fish inhabiting Lake Hypo. (2) Courts and agencies rely on models such as the one used here to predict the deposition of mercury emanating from Acme's stack. Computer models have become indispensable to courts and agencies in attempting to understand and make decisions regarding complex systems. For instance, the EPA relies extensively on computer modeling, and that reliance has been endorsed by the judiciary. In Mision Industrial, inc. v. Environmental Protection Agency, 547 F.2d 123, 128 (1st Cir. 1976), the EPA based a revision to an air implementation plan on a diffusion model. The petitioners claimed the EPA erred in approving the revised plan based on "an uncalibrated model, that no real life data has been used in arriving at or calibrating the accuracy of the predicted relationship between sulfur-in-fuel and air quality. Id. The court nevertheless upheld the EPA's determination "that the computer model was a satisfactory predictive tool on which to base . . . [the] revision." Id. at 129; see also Northern Plains Resource Council v. E.P.A., 645 F.2d 1349, 1363 (9th Cir. 1981) (the EPA's use of an unvalidated computer model to project compliance with air quality standards was not arbitrary and capricious). A decision based on computer modeling has even been upheld in the face of contradictory monitoring results. See Columbus and Southern Ohio Electric Co. v. Costle, 621 F.2d 910, 912 (6th Cir. 1980) (holding that monitored data showing past attainment of standards did not per se demonstrate that an EPA model was invalid or unreliable). Monitoring may not even be an effective, or reasonable, method of making decisions. See Republic Steel Corp. v. Costle, 621 F.2d 797, 805-06 (6th Cir. 1980) ( "Thus far technology has not developed foolproof methods of validating predictions . . . absent years of collection of monitoring data with far more monitors and far more personnel than have thus far been available.") The computer dispersion model used in this case has previously yielded results similar to those generated by the EPA's Industrial Source Complex ("ISC 2") model, and is thus particularly well-suited to model the deposition of Acme's mercury emissions. 40 C.F.R. § 51, Appendix W, A.5 (1998). The EPA recommends the use of the ISC 2 model "to assess pollutant concentrations from a wide variety of sources associated with an industrial source complex." Id. at Appendix W, A.5, Abstract. The ISC 2 model can account for "settling and dry deposition of particles," as well as for "separation of point sources." Id. It is "appropriate for . . . transport distances less than 50 kilometers . . . [and] continuous toxic air emissions. Id. at Appendix W, A.5, Abstract, par. a. (Lake Hypo has a maximum length and width of 45 kilometers by 40 kilometers, and Acme's stack will operate nearly continuously.) Finally, "ISC 2 may be used to model . . . continuous releases of toxic and hazardous waste pollutants," and to treat both settling and deposition. Id. at Appendix W, A.5, Abstract, par. e. Thus, the court may rely with great confidence on the model's prediction that Acme's stack would add nine kilograms of mercury to Lake Hypo. d. Indirect discharges, such as the mercury that would be discharged by Acme's stack, are within the purview of the Clean Water Act. On its face, the CWA defines the term "discharge" expansively and unconditionally to mean "any addition of any pollutant to navigable waters from any point source . . . . CWA, § 502(12), 33 U.S.C. § 1362(12) (emphasis added). The CWA thus subjects each point source to control, regardless of the route pollutants might take from the point source to the water, and regardless of the medium of conveyance. (1) Legislative history establishes that Congress intended to prohibit pollution from indirect discharges.



		The legislative history of the CWA confirms that its prohibition of pollution extends to all point source discharges, without reservation. During the consideration of the Conference Committee report by the House of Representatives, Representative Dingell explained, " It is quite clear that section 502(12) of the bill, in defining the term `discharge of a pollutant,' does not in any way contemplate that the discharge be directly from the point source to the waterway. 1 Legislative History, at 255. Further evidence that Congress intended indirect discharges to be subject to the permit requirement is found in the record of the consideration of the Conference Committee report by the Senate. Senator Muskie, the author of the Senate bill, prepared a report discussing each of the significant provisions of the bill. 1 Legislative History, at 163. "I do this," said Senator Muskie, "because the complexities of the individual provisions are such that the legislative history will be important to those charged with the responsibility for administering the program." Id. Senator Muskie explained that the term "discharge" applies both to direct and indirect discharges into navigable waters. 1 Legislative History, at 178. (2) Courts have interpreted "discharge" to include indirect discharges. (a) Courts have found objects, particles, and chemicals traveling through the air and deposited into navigable waters from point sources to constitute discharges. Courts that have interpreted the term "discharge" have given effect to Congress's intention that the CWA control indirect discharges that clearly add a pollutant to navigable waters. For instance, in United States v. Schallom, 998 F.2d 196, 201 (4th Cir.), cert. denied, 510 U.S. 902 (1993), the court upheld a conviction for violating the CWA where a concentrated sand and concrete mixture was sprayed through the air before it landed in navigable waters. Another court held that spraying too much wastewater onto fields, which then ran off into a nearby stream, was a discharge from a point source. See United States v. Oxford Royal Mushroom Products, 487 F. Supp. at 854. In Romero-Barcelo v. Brown, 478 F.Supp. 646, 663-64 (D. P.R. 1979), remanded on other grounds, 643 F.2d 835 (1st Cir. 1981), rev'd on other grounds sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), the district court held that the U.S. Navy violated the CWA, and was required to get a NPDES permit to drop bombs through the air into the navigable waters surrounding Puerto Rico, whether the bombs were dropped intentionally or accidentally. Finally, in United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 947 (W.D. Tenn. 1976), the court found discharges into the city sewer system, which, in turn, emptied into the Mississippi River to be in violation of the CWA. The court rejected the argument that pollutants must be discharged directly into navigable waters. See id. (b) Courts have found discharges to groundwater that is hydro logically connected to navigable waters to constitute dis charges. In another line of cases, a number of courts have held that the discharge of a pollutant into groundwater constitutes a discharge subject to the permit requirement, if the groundwater is hydrologically connected to surface water. Friends of the Coast Fork v. Turner, No. 95-6105-TC, 1996 U.S. Dist. LEXIS 22083, at 7-12 (D. Or. Jul. 8, 1996); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1357-58 (D.N.M. 1995); Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983, 989-90 (E.D. Wash. 1994); Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428, 1434 (D. Colo. 1993); McClellan Ecological Seepage Situation v. Weinberger, 707 F.Supp. 1182, 1193-96 (E.D. Cal. 1988), vacated on other grounds, 47 F.3d 325 (9th Cir.), cert. denied, 516 U.S. 807 (1995). Courts reaching this conclusion have relied upon Congress's express goal of protecting the quality of surface waters, see Washington Wilderness Coalition, 870 F.Supp. at 990, and Congress's "clear intent . . . to regulate waters of the United States to the fullest extent possible," see Friends of the Coast Fork, 1996 U.S. District LEXIS 22083, at 11. These courts have nevertheless required pollutants to be traced from their source to surface waters for the point source to come within the purview of the CWA; a mere assertion of a general hydrological connection between ground and surface waters is insufficient. See



	Washington Wilderness Coalition, 870 F.Supp. at 990; Friends of the Coast Fork, 1996 U.S. District LEXIS 22083, at 11-12. Some other courts have found that a discharge into groundwater that is hydrologically connected to surface water is not subject to regulation under the CWA. Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977); Umatilla Water Quality Protective Ass'n, Inc. v. Smith Frozen Foods, Inc., 962 F.Supp. 1312 (D. Or. 1997); Village of Oconomowoc Lake v. Dayton Hudson Corp., No. 93-C-0797, 1993 U.S. Dist. LEXIS 20058, at 9-10 (E.D. Wis. Sep. 24, 1993), aff'd, 24 F.3d 962 (7th Cir.), cert. denied, 513 U.S. 930 (1994); Kelley v. United States, 618 F.Supp. 1103 (W.D. Mich. 1985). One of these cases, however, is not on point. In Exxon v. Train, the court rejected EPA's attempt to regulate the disposal of wastes into deep wells. Exxon, 554 F.2d at 1312. EPA had not argued that the disposal of wastes into wells might migrate from groundwaters back into surface waters, which are within its regulatory jurisdiction. Id. at 1312 n.1. The court therefore refrained from expressing any opinion on what the result would be had EPA advanced such an argument. Id. In Village of Oconomowoc Lake, Kelley and Umatilla, the courts did specifically say that groundwater pollution hydrologically connected to surface water is not covered by the CWA. All three courts based their conclusion primarily on two factors, the organization of the statute and the statute's legislative history. The Village of Oconomowoc Lake court followed the opinion from the Kelley court. The courts in Kelley and Umatilla said that when Congress wanted to include groundwater in portions of the CWA, it did so explicitly. Umatilla, 962 F.Supp. at 1318; Kelley, 618 F.Supp. at 1105-06. Since § 301(a) does not mention groundwater, only "navigable" waters, the Kelley and Umatilla courts reasoned that discharges to groundwater could not be regulated. Umatilla, 962 F.Supp. at 1320; Kelley, 618 F.Supp. at 1107. The courts' reasoning was unsound, however. The purpose of regulating discharges to hydrologically connected groundwater is to protect surface water, not groundwater. Pollutants added by a point source to groundwater that is hydrologically connected to surface water pollute the surface water just as surely as if the source discharged directly into the surface water itself. In Kelley and Umatilla, the courts confused what was being protected (surface water) with what was being regulated (discharges to surface water through groundwater). Both the Kelley and Umatilla courts also relied heavily on the legislative history of the CWA in reaching their opinions. Although the legislative history may show that Congress did not intend to regulate discharges to groundwater for the sake of protecting groundwater, it is silent about whether NPDES permits may be used to regulate discharges to groundwater to protect surface water. What is clear, both from the legislative history and the language of the statute, is that the CWA's purpose is to protect the Nation's surface waters to the greatest extent Constitutionally possible. When read in that context, § 301(a) requires regulation of point sources to protect surface water, even if the route a pollutant takes to surface water is indirect. (3) The legal and factual setting in this case is readily distinguish- able from the one case in which a court decided that dis charges from a stack are not within the purview of the Clean Water Act. One court in another jurisdiction has squarely confronted the question whether the operator of a stack must obtain a CWA permit, and found that it did not. See Chemical Weapons Working Group v U.S. Army, 111 F.3d 1485 (10th Cir. 1997). That case is limited to its facts, however, and does not relieve Acme Widget of its obligation to obtain a permit. In Chemical Weapons Working Group v U.S. Army, the U.S. Army ("Army") was preparing to dispose of chemical warfare agent by incineration at the Tooele Chemical Agent Disposal Facility near Tooele, Utah. Chemical Weapons Working Group, 111 F.3d at 1487, 1488. The Army had Clean Air Act and RCRA permits in hand, when Chemical Weapons Working Group, Inc., Sierra Club, and Vietnam Veterans of America Foundation ("plaintiffs") filed suit claiming, among other things, that the CWA applied to Tooele's stack emissions. Id. The plaintiffs argued that the CWA, § 301(f), 33



		U.S.C. § 1311(f), barred the atmospheric deposition of chemical warfare agent emitted from Tooele's stack. The court refused to uphold the plaintiffs' claim for three reasons. All three reasons were peculiar to the facts of the case. First, although § 301(f) unequivocally bans the discharge of any chemical warfare agent into navigable waters, Congress knew of, approved, and funded incineration "as the baseline technology for destroying chemical weapons since 1986, when the Army first submitted its disposal program to Congress." Chemical Weapons Working Group, 111 F.3d at 1490. Accordingly, the court rejected the "[p]laintiffs' proposed construction of § 301(f) because it is clearly inconsistent with congressional intent to implement Tooele's incineration plan." Id. The court's second reason for rejecting the plaintiffs' CWA claim was based on the nature of their allegations. The plaintiffs had merely alleged a generalized claim that stack emissions would be deposited in unspecified navigable waters. They had not alleged that chemical warfare agent traceable to the Tooele stack would be deposited in particular navigable waters. In response to the plaintiffs' allegations, the court observed that their "broad construction of the phrase `discharge . . . into the navigable waters' under § 301(f) would necessarily result in regulation under § 301(a) of any air emission that might possibly result in atmospheric deposition into navigable waters," including car emissions. Chemical Weapons Working Group, 111 F.3d at 1490. The court held "that Tooele's stack emissions, unlike other indirect discharges, lack the requisite nexus to navigable waters to render them subject to regulation under [the CWA]." Id. at 1490 n. 3. The court's third and final reason for rejecting the plaintiffs' CWA claim was prompted by the CWA's express and absolute prohibition on the discharge of chemical warfare agent into navigable waters. To reiterate, the plaintiffs had asserted that the § 301(f)'s prohibition rendered the emissions of chemical warfare agent from Tooele's stack illegal, because the emitted chemical warfare agent would eventually be deposited into navigable waters. The court disagreed with the plaintiffs' assertion, saying, "Because Tooele's Clean Air Act permit specifically allows the discharges that Plaintiffs claim are barred under Clean Water Act § 301(f), applying that provision to Tooele's stack emissions would create an irreconcilable conflict between the two regulatory regimes." Chemical Weapons Working Group, 111 F.3d at 1490-91. In other words, since the court believed it could not give effect both to § 301(f) of the Clean Water Act and the Clean Air Act, and since the emissions were permitted under the Clean Air Act, it "decline[d] Plaintiffs' invitation to create . . . a conflict" between the Clean Water Act and the Clean Air Act. Id. at 1491. None of the reasons given for rejecting the plaintiffs' claim in Chemical Weapons Working Group are applicable here. First, construing § 301(a) of the CWA to prohibit Acme's discharge without an NPDES permit does not contravene any Congressional intent that Acme's facility should be built or operated. Second, Friends have established that mercury that would be deposited into Lake Hypo is directly traceable to the emissions from Acme's stack, bringing Acme's stack within the purview of the CWA. Third, requiring Acme to get an NPDES permit would create no irreconcilable conflict between the Clean Air Act and the Clean Water Act. Unlike § 301(f), § 301(a) does not create an absolute prohibition on discharges; it allows discharges of mercury provided the point source gets an NPDES permit. Thus, the Chemical Weapons Working Group case provides no justification for Acme's operation of its stack without an NPDES permit. C. No permit may be issued to Acme because its discharge will cause or contrib- ute to the violation of the water quality standard for Lake Hypo. 1. A Clean Water Act permit may not be issued to a new source that will cause or contribute to the violation of a water quality standard. A water quality standard is comprised of the following three components: (1) designated uses of the navigable waters involved; (2) water quality criteria based upon those designated uses; and (3) antidegradation policies and implementation procedures. CWA, § 303(c)(2)(A), 33 U.S.C. §



	1313(c)(2)(A); 40 C.F.R. §§ 131.10-131.12. Under the EPA's "prohibition" regulation, a state may not grant a permit to a new source or new discharge that will cause or contribute to the violation of any one of the three components of a water quality standard. The prohibition regulation bars states from issuing permits "[t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." 40 C.F.R. § 122.4(I).² Formerly codified at 40 C.F.R. § 122.52(I), the EPA has explained that § 122.4(I) "implements section 303(d) and 303(e) of [the] CWA by prohibiting permits for a new source . . . if its discharge will cause or contribute to the violation of a water quality standard." 45 Fed. Reg. 33,336 (1980). Section 303(d) requires each state to "identify those waters within its boundaries for which [technology-based] effluent limitations are not stringent enough to implement any water quality standard applicable to such waters." CWA, § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A). A state must submit a list of these water quality limited segments ("WQLSs") to the EPA for approval or disapproval by April 1st of every even-numbered year. CWA, § 303(d)(1)(C) and (D), 33 U.S.C. §1313(d)(1)(C) and (D); 40 C.F.R. § 130.7. This submission is known as a "§ 303(d) submission." The submission must include each pollutant responsible for the impairment of a WQLS. 40 C.F.R. § 130.7(b)(4). It should also include the use designated for each segment listed and identify the WQS that is being violated. The EPA has thirty days to approve or disapprove a state's § 303(d) submission. 33 U.S.C. § 1313(d)(2). The § 303(d) process does not end with the state's submission of a list of WQLSs, however. States must also establish pollutant loading limitations, that is to say, the maximum amount of pollution a WQLS can withstand on a daily basis without violating any applicable water quality standards. 33 U.S.C. § 1313(d)(1)(C) and (D). These pollutant load restrictions are known as "total maximum daily loads" or "TMDLs." A TMDL is the sum of individual waste load allocations for point sources and load allocations for nonpoint and natural sources of pollution. 40 C.F.R. § 130.7. TMDLs must account for seasonal variations and incorporate a margin of safety, 33 U.S.C. § 1313(d)(1)(C), which takes "into account any lack of knowledge concerning the relationship between effluent limitations and water quality," 40 C.F.R. § 130.7(c)(1), and accounts for both point and nonpoint sources, id. at § 130.2(I). A state may permit a new source or a new discharge of a pollutant responsible for limiting water quality only if the state has calculated for the segment in question a "pollutant load allocation" a Total Maximum Daily Load ("TMDL") that both contains an allocation for future growth, and establishes compliance schedules for current permit holders to meet the water quality standard. 40 C.F.R. § 122.4(I)(1) & (2). If the state has not completed a TMDL, a new source or a new discharge simply cannot make the demonstration required by 40 C.F.R. § 122.4(I). This is the straightforward meaning of the prohibition regulation.


	2 The regulation provides in full as follows: "No permit may be issued: ". . . "(I) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: "(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and "(2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards."



		a. A Clean Water Act permit may not be issued to a new source that will worsen the existing impairment of a designated use. As explained above, a state may not grant a permit to a new source or new discharge that will cause or contribute to the violation of any one of the three components of a water quality standard. One such component consists of the designated uses of a water body. 40 C.F.R. § 131.6(a). "Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being attained." 40 C.F.R. § 131.3(f) (emphasis in original). Or, under Michigan's formulation, "Designated use" means a use of surface waters of the state as established by these rules." Mich. Admin. Code r. 323.1043(x). b. A Clean Water Act permit may not be issued to a new source that will lower the water quality with respect to a pollutant which is causing an impairment to a designated use. Another component of a water quality standard is the antidegradation policy for the water body. 40 C.F.R. § 131.6(d). Pursuant to § 118 of the Clean Water Act, 33 U.S.C. § 1268, the EPA issued water quality guidance ("Guidance") for the Great Lakes System, which specifies how the Great Lakes states and tribes must implement the general antidegradation policy for a short list of pollutantswhich includes mercuryidentified as bioaccumulative chemicals of concern ("BCCs"). 40 C.F.R. § 132, Appendix E; see 40 C.F.R. § 132, Table 6.A; Mich. Admin. Code r. 323.1057, Table 5. The Guidance directs that the "antidegradation standard . . . shall be applicable to any action or activity by any source, point or nonpoint, of pollutants that is anticipated to result in an increased loading of BCCs to surface waters of the Great Lakes System and for which independent regulatory authority exists requiring compliance with water quality standards." 40 C.F.R. § 132, Appendix E, Section I. The Guidance then establishes a 3-tiered antidegradation approach. The first tier provides as follows: Existing instream water uses, as defined pursuant to 40 C.F.R. § 131, and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the waterbody are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants which are causing the impairment." 40 C.F.R. § 132, Appendix E, § I.A (emphasis added). Similarly, Michigan's rules provide as follows: For all waters, the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the water body are not attained, there shall be no lowering of the water quality with respect to the pollutant or pollutants that are causing the nonattainment. Mich. Admin. Code R. 323.1098(2) (emphasis added). 2. The mercury that would be discharged by Acme Widget's stack and deposited in Lake Hypo will cause or contribute to the existing violation of Lake Hypo's water quality standard. a. The water quality standard for Lake Hypo has already been violated. One of the three components of the water quality standard for Lake Hypoits designation as a warmwater fisheryis currently not being attained. A "warmwater fishery" is "a waterbody that contains fish species which thrive in relatively warm water, including . . . bass . . . pike . . . [and] walleye." Mich. Admin. Code r. 323.1044. Michigan has identified Lake Hypo as a WQLS based on the failure of technology-based effluent limitations to protect the lake's warmwater fishery use. Simply put, warmwater fish species found in Lake Hypo are no longer safe to eat because of mercury contamination. Lake Hypo is subject to state-issued mercury-based fish consumption advisories for bass, pike, walleye, and several other fish species.



	Pursuant to CWA § 303(d), Michigan included Lake Hypo on the list of WQLSs it submitted to the EPA, and the EPA duly approved the designation of the lake as a WQLS because of the mercury-based fish consumption advisories. Therefore, both the state and the EPA have acknowledged that Lake Hypo is experiencing a violation of its water quality standard, even without the mercury that would be deposited in the lake as a result of the new emissions that would come from Acme's stack. To date, however, no TMDL has been developed for Lake Hypo. b. Acme's discharge will worsen the existing impairment of a designated use. Acme's stack would increase mercury loading to Lake Hypo by nine kilograms per year, or three percent. Based on computer modeling, an increase in mercury deposition to the water will translate to an increase in mercury concentration in fish by a ratio that can vary from ten to two (10:2) to ten to ten (10:10). That means Acme's contribution of a three percent increase in the mercury load to the waters of Lake Hypo would mean an increase in mercury concentration in fish that can vary from 0.6 % to 3 %. In other words, Acme's discharge would exacerbate the existing violation of the water quality standard applicable to the lake by making its fish even less safe to eat. Consequently, the EPA's prohibition regulation prohibits the issuance of an NPDES permit to Acme. c. Acme's discharge will lower Lake Hypo's water quality with respect to mercury, which is impairing a designated use. Mercury is present in the water column of Lake Hypo at a concentration of two nanograms per liter. That level already exceeds the level that the EPA deems safe for wildlife (1.3 nanograms per liter) and human health (1.8 nanograms per liter). The deposition of additional mercury from Acme's stack will lower Lake Hypo's water quality with respect to mercury even further, violating the antidegradation policy for the lake. To reiterate, Acme will be responsible for degrading Lake Hypo's water quality an additional three percent, through the addition of nine kilograms of mercury per year. Since mercury is already impairing Lake Hypo's designated warmwater fishery, the EPA's prohibition regulation prohibits the issuance of an NPDES permit to Acme for this reason also. D. Acme's compliance with the Clean Air Act does not preclude regulation of its facility under the Clean Water Act. Acme argues that the CAA is the exclusive tool for regulating a facility's emission of a pollutant into the air, even if that pollutant is traced to a particular water body. Acme also cites several provisions of the CAA that touch on the connection between air pollution and water quality, including the Great Waters Program. Not one of those provisions, however, exempts a point source from compliance with the CWA's NPDES permit requirement. As Friends have shown, the coverage of the CWA extends beyond direct discharges to the indirect discharge Acme would make to Lake Hypo. The CAA and the CWA are certainly complementary statutes, because both serve the common goal of protecting the Nation's natural resources. They are directed at entirely different resources, however. The goal of the CAA is not to protect water quality, but to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401 (b) (1). Acme's receipt of a permit pursuant to the CAA therefore does not translate to the achievement of the goals of the CWA. The obligation to get permits under more than one statutory scheme is not uncommon. For instance, a utility wishing to build a hydroelectric plant that would discharge dredged material into a river had to



		get permits pursuant both to the CWA and the Federal Power Act. Scenic Hudson Preservation Conference v. Callaway, 370 F. Supp. 162, 171 (S.D.N.Y. 1973). The court stated that there is "no Power Act provision that would require the FPC to satisfy literally or even substantially the demands of §404" of the CWA, so both permits were required. Id. In another case, a landfill that engaged in open dumping procedures and discharged pollutants from a railroad culvert into a marsh violated both the CWA and RCRA. See Dague v. City of Burlington, 935 F.2d 1343, 1346-55 (2d Cir. 1991). In this case, at least, even if the goals of the CAA will be achieved by Acme's compliance with its air permit, the goals of the CWA will not. The goals of the CWA will only be achieved by adherence to its requirements. E. Contrary to the Resource Conservation and Recovery Act, Acme Widget would contribute to the disposal of a solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 1. Congress established a national policy to dispose of hazardous waste such as mercury "so as to minimize the present and future threat to human health and the environment." Congress declared the national policy of the United States to be to dispose of hazardous waste "so as to minimize the present and future threat to human health and the environment." 42 U.S.C. § 6902(b). "Hazardous waste" is a subset of "solid waste." See id. at § 6903(5). Among other things, "The term `solid waste' means . . . discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial . . . operations . . . ." Id. at § 6903(27). Among other things, "The term `hazardous waste' means a solid waste . . . which because of its quantity, concentration, or . . . chemical . . . characteristics may . . . pose a substantial present or potential hazard to human health or the environment when improperly . . . disposed of . . . ." Id. at § 6903(5). The EPA must list particular hazardous wastes subject to regulation under RCRA. See 42 U.S.C. § 6921(b). Pursuant to this mandate, the EPA identified mercury as a hazardous waste. See 40 C.F.R. §261.33. 2. The Resource Conservation and Recovery Act empowers citizens to sue any person who is contributing to the disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. Friends may bring a citizen suit against Acme as a generator of solid or hazardous waste "who is contributing to the . . . present . . . disposal of a[] solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B) (emphasis added). The use of the word "may" to preface the phrase "present an imminent and substantial endangerment to health or the environment" makes this provision an expansive one, which is "`intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" Dague, 935 F.2d at 1355, quoting United States v. Price, 688 F.2d 204, 213-14 (3d Cir. 1982). Friends bring this citizen suit, like most that are brought under this provision, not to enforce compliance with the RCRA regulatory program, but to address a situation analogous to a common-law public nuisance, namely the deposition of mercury into Lake Hypo. Adam Babich, Is RCRA Enforceable by Citizen Suit in States with Authorized Hazardous Waste Programs?, 23 Envtl. L. Rep. 10536 (Sep. 1993). As Friends shall demonstrate, all the conditions for the prosecution of this citizen suit are present in this case, and warrant the entry of the injunctive relief Friends seek.



	a. "Solid waste" includes emissions of mercury into the air that are deposited into water. RCRA regulates emissions of solid and hazardous wastes to air, water and soil. EPA itself has stated that "Section 7003 authority has no media limitation. . . . CERCLA and RCRA apply to releases to all media (i.e., `the environment' defined broadly)." EPA Enforcement Authority Guidance, 56 Fed. Reg. 24,393, 24,398 (1991).³ According to one commentator: EPA routinely regulates air emissions as hazardous waste under RCRA. See 40 C.F.R. pt. 264, subpts. AA and BB (1993) (containing RCRA regulations for "Air Emission Standards for Process Vents" and "Air Emission Standards for Equipment Leaks"). Similarly, EPA's RCRA standards for boilers and industrial furnaces specify "standards to control organic (air) emissions," "standards to control particulate matter (air emissions)," "standards to control metals (air) emissions," and "standards to control hydrogen chloride and chlorine gas emissions." 40 C.F.R. ss. 266.104-.107 (1993). Adam Babich, RCRA Imminent Hazard Authority: A Powerful Tool For Businesses, Governments, and Citizen Enforcers, 24 Envtl. L. Rep. 10122 (Mar. 1994) (emphasis added). One case demonstrates RCRA's broad application. In Orchard Lane Road Assoc., a citizen group brought a RCRA action against a silica production plant to protest the plant's silica dust emissions. The defendant filed a summary judgment motion, which the court denied. The court held that the citizens could maintain their suit because silica dust emissions were "solid waste" and therefore within the purview of RCRA. Orchard Lane Road Assoc., 34 ERC at 1750. Specifically, the court explained that a RCRA action could be asserted against any person engaged in the "disposal of any solid or hazardous waste." Id. at 1749. Disposal, the court explained, includes the "discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water." Id., quoting 42 U.S.C. § 6903(3). Moreover, the court reasoned that "the `solid waste' definition covers what Plaintiff is alleging here, the silica dust emission, which . . . probably would be solid, although very small particulates." Id. at 1750. As the mercury emitted by Acme's stack is carried by the wind across Lake Hypo, some portion of it will condense into a liquid or solid form and be deposited into the lake. That brings Acme's emission of mercury within RCRA's purview. b. "Imminent" requires that a risk of future harm exists. RCRA is designed to prevent improper disposal of hazardous wastes in the future, not simply in emergencies. See Dague, 935 F.2d at 1355-56. "A finding of `imminency' does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present." Id. at 1356. "`An "imminent hazard" may be declared at any point in a chain of events which may ultimately result in harm to the public.'" Id., quoting Environmental Defense Fund v. Environmental Protection Agency, 465 F.2d 528, 535 (D.C. Cir. 1972). Thus, Acme's stack presents an imminent hazard, because Michigan's issuance of an air permit authorizes the operation of the stack at any time, which may result in harm to the public and the environment. c. "Substantial" requires some cause for concern that someone is exposed to risk, not a quantification of risk. In determining whether an endangerment is substantial, a court should err on the side of protecting the public health, welfare, and environment. Cf. United States v. Conservation Chemical Company, 619 F. Supp 162, 194 (W.D. Missouri 1985) (interpreting the meaning of the phrase "imminent and substantial endangerment" in § 106 of the Comprehensive Environmental Response, Compensation, and Liability

	3 Section 7003 of RCRA is codified at 42 U.S.C. § 6973 (West 1999). The provision gives EPA the authority to initiate civil and administrative actions "upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6973 (West 1999).



		Act, by reference to interpretations of the same phrase in RCRA § 6973). Accordingly, "the word `substantial' does not require quantification of the endangerment (e.g., proof that a certain number of persons will be exposed, that `excess deaths' will occur, or that a water supply will be contaminated to a specific degree)." Id. "[A]n endangerment is substantial if there is reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or a threatened release of a hazardous substance if remedial action is not taken, keeping in mind that protection of the public health, welfare and the environment is of primary importance." Id. Under this standard, Acme's generation and disposal of mercury in Lake Hypo causes a substantial endangerment. Although Friends may not be able to quantify with exactitude the magnitude of the increase, mercury concentrations in fish tissue will increase from 0.6% to 3% as a result of the operation of Acme's stack. Furthermore, those who do not or cannot heed fish consumption advisories, especially children and subsistence populations, will have greater exposure to the neurological risks associated with the ingestion of mercury. d. "Endangerment" does not require proof of actual harm, only a threat- ened or potential harm. Endangerment does not require proof of actual harm, only a threatened or potential harm. See Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994) ("Courts have consistently held that `endangerment' means a threatened or potential harm and does not require proof of actual harm."); U.S. v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1394 (D.N.H. 1985) ("One can be endangered without actually being harmed . . . [but] some risk of harm is necessary."). For example, in Buggsi, Inc. v. Chevron U.S.A., Inc., 857 F. Supp. 1427 (D. Or. 1994), a property owner brought suit against Chevron, and its predecessor-in-title, asserting a citizen suit under RCRA (along with several common law claims) for groundwater contamination by petroleum. Buggsi, 857 F. Supp. at 1429. The defendants moved for summary judgment motion contending, inter alia, that Buggsi had presented no evidence of an imminent and substantial endangerment. Id. at 1430. The court denied the defendants' motion, finding sufficient evidence to support Buggsi's RCRA claim, based on expert witness testimony from Oregon's Department of Environmental Quality. Id. at 1431. For instance, the court found the DEQ had "verified that the groundwater pathway has been affected." Id. Regarding RCRA's endangerment requirement, the court said: `Endangerment,' as used in federal statutes such as the RCRA, does not refer to actual harm but to a `threatened or potential harm.' `While the risk of harm must be `imminent' . . . the harm itself need not be.' If an error is to be made in applying the endangerment standard the error must be made in favor of protecting public health, welfare and the environment. . . . [T]he word `endangerment' does not require quantitative proof of actual harm. Id., quoting Conservation Chemical Company, 619 F. Supp. at 193-94 (emphasis added). Hence, the court concluded that the plaintiff's expert documentary evidence demonstrated endangerment to public health and the environment. Accordingly, the court denied the defendants' summary judgment motion. In another groundwater contamination case, the plaintiff, a Florida shopping center, obtained injunctive relief against one of its tenants, a dry cleaner which regularly usedand spilledthe chemical perchloroethylene ("perc") in its business. Fairway Shoppes Joint Venture v. Dryclean U.S.A. of Florida, Inc., NO. 95-8521-CIV-HURLEY, 1996 U.S. Dist. LEXIS 22364 (S.D.N.Y. Mar. 11, 1996). The injunction required the dry cleaner to cease operation while it assessed the extent of the groundwater contamination it had caused, and until it provided the court a remediation plan designed to prevent further "migration of the contaminant plume." Id. at 29-30. The court analyzed the statutory language"may present an imminent and substantial endangerment"and concluded that the phrase "has been construed to mean that a plaintiff need only demonstrate a measurable potential risk of harm." Id. at 20. The court said the following in support of its interpretation:



	First, it is significant that the word `may' precedes the standard of liability: `this is expansive language,' which is `intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.' . . . Second, `endangerment' means a threatened or potential harm and does not require proof of actual harm. . . . Finally, the word `substantial does not require quantification of the endangerment . . . an endangerment is substantial if there is some reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or a threatened release of a hazardous substance if remedial action is not taken.' Id. at 20-21, quoting* Lincoln Properties v. Higgins, No. S-91-760 DFL/GGH, 1993 U.S. Dist. LEXIS 1251, at 20-21 (E.D. Cal. Jan. 21, 1993). The court found "reasonable cause for concern" in the assembled evidence: A plume of toxic contaminants migrating toward a source of potable water supply for Palm Beach County unquestionably meets the `imminent and substantial endangerment' standard of RCRA. The Court need notand should notwait until the contaminated water is actually detected in public water supply wells before taking action. Fairway Shoppes, 1996 U.S. Dist. LEXIS 22364, at 17 (emphasis supplied). Furthermore, the court also found contaminated groundwater constituted an imminent and substantial endangerment to the environment: "The statute speaks of endangerment to health or the environment . . . [which] appears to include air, soil and water. Neither the statute nor the case law interposes an additional requirement that humans or other life forms be threatened." Id. at 23. In other words, the defendant's release of perc constituted an imminent and substantial endangerment to public health and* the environment. Accordingly, the court granted the plaintiff injunctive relief: "A balancing of the equities in this case . . . weighs in favor of requiring [the Defendant] to take reasonable measures to protect the public health and the environment." Id. at 29. Like the defendants in Buggsi* and Fairway Shoppes, Acme may endanger the public health and environment by emitting mercury from its stack. Annually, nine kilograms of mercury from Acme's stack would be deposited on the surface of Lake Hypo, transformed into methyl mercurywhich poses the greatest threat to human and ecosystem health, and be concentrated in fish tissue. Hence, a hazardous material spewed from Acme's stack will contaminate Lake Hypo in at least as identifiable a way as the contaminants in Buggsi and Fairway Shoppes contaminated or threatened the contamination of groundwater. The Fairway Shoppes court recognized the endangerment of Palm Beach's subsurface potable water supply. The water quality of Lake Hypo is similarly endangered. The Buggsi court chose to "err" on the side of protecting public health, welfare and the environment. This court has the same opportunity: to protect the environment of Lake Hypo, and the health of the public that consumes its fish, by enjoining Acme's disposal of mercury into Lake Hypo.



		V. CONCLUSION For the foregoing reasons, the court should grant Friends' motion for summary judgment. Respectfully submitted, Neil S. Kagan Counsel for Plaintiff Friends of Lake Hypo Legal interns on the brief: Paul L. Benington William M. Littell Nathaniel O'Seep Benjamin T. Roberts Katharine M. Swanson Scott D. Thompson



	APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN __________________________________ FRIENDS OF LAKE HYPO, Plaintiff, V. ACME WIDGET, Defendant. __________________________________ DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT __________________________________ Peter D. Holmes Karen H. Schodowski Attorneys for Defendant Acme Widget



		TABLE OF CONTENTS ISSUES PRESENTED 120 STATEMENT 120 1. Nature of the Case 120 2. Statement of Facts 120 SUMMARY OF ARGUMENT 121 ARGUMENT 122 I. FOLHY'S CWA CITIZEN SUIT CLAIMS FAIL FOR LACK OF JURISDICATION 122 A. The Clean Water Act Does Not Require an NPDES Permit for Air Emissions of Mercury in Compliance with Acme's Air Permit 122 1. Statutory and Regulatory Background 122 2. EPA Has Authoritatively Interpreted the Clean Water Act to Include Atmospheric Deposition as a Nonpoint Source and This EPA Interpretation is Entitled to Deference 123 3. Congressional Intent Makes Clear that Clean Water Act Discharge Permits Are Not Required for Acme's Air Emissions 125 4. Nearly 30 Years of History Under the CWA Demonstrates That Stack Emissions Are Not "Point Source Discharges" 127 5. Relevant Case Law Rejects the Claim that NPDES Permits May be Required for Air Emission Sources 127 6. Emissions Stacks Are Not Point Sources 129 B. Assuming Arguendo That Acme's Stack Emissions Require an NPDES Permit, This Court Lacks Jurisdiction To Permanently Enjoin Acme's Operations For The Failure To Obtain An NPDES Permit 129 C. Assuming Arguendo That Acme's Stack Emissions Require An NPDES Permit, The CWA Citizen Suit Provision Cannot Be Used To Enforce Water Quality Standards 129 D. This Court Lacks Jurisdiction Over FOLHY's Claim That Acme Would Be Denied An NPDES Permit 130 E. FOLHY's Argument That Acme Would Be Denied An NPDES Permit Is Both Incorrect and Premature 131 1. Acme's Emissions, Which Are Authorized by MDEQ, Would Not Violate Antidegradation Rules Because They Would Not Constitute a Lowering of the Water Quality of Lake Hypo 131 2. Reliance Upon Unvalidated Modeling That Predicts a Small Percentage Increase in Mercury in Lake Hypo Would be Arbitrary and Capricious 131



	3. Even if Subject to NPDES Permit Requirements, Acme Could Qualify for a Permit Under the TMDL Process 132 4. The Issue of Whether Acme Would be Issued an NPDES Permit Is Not Ripe for Review 132 F. If Acme's Stack Emissions Do Not Require An NPDES Permit, FOLHY Has No Cause Of Action Under The CWA Citizen Suit Provision 133 II. FOLHY'S RCRA CLAIM FAILS BOTH FOR LACK OF JURISDICTION AND FOR FAILURE TO DEMONSTRATE THAT ACME'S EMISSIONS PRESENT AN IMMINENT AND SUBSTANTIAL ENDANGERMENT 134 A. Uncontained Gaseous Emissions are Not "Solid Waste" Within the Meaning of RCRA Section 1004(27) and in Accordance With EPA's Authoritative Interpretation and, Therefore, are Not "Hazardous Waste" 134 B. Acme Is Not "Disposing" of Mercury Emissions Within the Meaning of RCRA 135 C. FOLHY Cannot Employ RCRA's Citizen Suit Provision to Collaterally Attack the State of Michigan's Decision to Permit the Operation of Acme's Facility 136 D. FOLHY'S RCRA Claim Must Be Dismissed Because it Has Failed to Demonstrate That Acme's Operations Present an "Imminent and Substantial Endangerment to Health or the Environment" 137 CONCLUSION 138



		ISSUES PRESENTED 1. Whether FOLHY's claim that Acme's emissions of gaseous mercury into the atmosphere in compliance with all applicable state and federal air requirements nevertheless constitute a point source discharge into a surface water that requires a National Pollutant Discharge Elimination System permit under the Clean Water Act, should be dismissed as contrary to the Clean Water Act and its authoritative interpretation by the U.S. Environmental Protection Agency. 2. Whether, if an NPDES permit were to be required, this Court should allow Acme the opportunity to seek a permit rather than permanently enjoining Acme's operations based on the assumption that it would be impossible under any circumstances for Acme to qualify for a permit. 3. Whether FOLHY's claim that Acme's emissions of gaseous mercury into the atmosphere constitute solid or hazardous waste posing an imminent and substantial endangerment under the Resource Conservation and Recovery Act ("RCRA") should be dismissed based on RCRA's statutory exclusion of uncontained gaseous material and the Michigan Department of Environmental Quality's determination, through a multipathway risk assessment, that the emissions present no such endangerment. STATEMENT 1. Nature of the Case Friends of Lake Hypo ("FOLHY") brings this action against Acme Widget ("Acme") under the "citizen suit" provisions of section 505(a) of the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a); and section 7002(a)(1)(B) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). It alleges that Acme is in violation of the Clean Water Act because its stack emissions of mercury, although in compliance with an air permit issued by the State, will constitute a point source discharge into Lake Hypo without a National Pollutant Discharge Elimination System ("NPDES") permit as required by CWA section 402, 33 U.S.C. § 1342. FOLHY goes a step further and argues that, although no NPDES permit proceeding has taken place, Acme will be unable to obtain the NPDES permit, if one were to be required, because it claims that Acme's operations will cause or contribute to the violation of water quality standards and that because of this alleged inability to obtain the necessary permit, the court should enjoin entirely Acme's operations. FOLHY also alleges under RCRA that the gaseous emissions of mercury from Acme's stack, although approved by the State after conducting a multipathway risk assessment, nevertheless will present an imminent and substantial endangerment to health or the environment based on the predictions of conservative and unvalidated air modeling. Acme and FOLHY have filed cross-motions for summary judgment with this court. 2. Statement of Facts Acme incorporates by reference the facts presented in the Event Description for this case, with the following additional statements. Modeling was used in an attempt to predict an estimated amount of mercury that might be added by Acme's stack emissions to Lake Hypo. These emissions will comply with all applicable air emission



	requirements, including the use of Maximum Achievable Control Technology ("MACT"). Many of the key assumptions used in the modeling for sake of simplification are overly conservative, thus producing an overestimate of the amount of mercury predicted to result from Acme's emissions. These overly conservative assumptions include the assumption that absolutely none of the gaseous mercury chloride emitted by Acme will be chemically reduced in the atmosphere at any point above the land or any of the 1115 square kilometers (approximately 436 square miles) of Lake Hypo. This assumption is acknowledged to result in an overprediction of the mercury deposition attributed to Acme. In addition, the modeling assumes that no other sources of mercury, other than Acme, contribute a significant amount of mercury chloride to the background deposition to Lake Hypo. This unrealistic assumption thus overstates the percentage increase of mercury in Lake Hypo predicted to result from Acme's stack emissions. The modeling further assumes that all forms of mercury deposited in Lake Hypo are transformed into the methylated form of mercury at the same rate. The modeling thereby unrealistically assumes that all forms of mercury are created equal with respect to methylation. The modeling then compounds this overly conservative assumption by further assuming, as an upper bound, that all of the mercury deposited in Lake Hypo will end up in fish tissue in a perfectly linear relationship. It then assumes, as a lower bound, the 10:2 relationship recently cited by EPA's Science Advisory Board, although even less mercury in the water may end up in fish tissue in the real world. After applying all these overly conservative assumptions, the model predicts that Acme's permitted emissions of mercury to the air may result in only a 0.6% - 3% increase in mercury levels in fish found in Lake Hypo. Because of the self-acknowledged, conservative overestimates made by the modeling, the predicted increase more accurately should be stated as less than 0.6% - less than 3%. There are no actual monitoring data to validate the model's predictions of the potential effect of Acme's emissions. Based on the overly conservative assumptions of the air modeling, the Michigan Department of Environmental Quality ("MDEQ") conducted a multipathway risk assessment as part of its air permitting process under Part 55 of the Natural Resources and Environmental Protection Act ("NREPA"), M.C.L. §§ 324.5501-.5542. Based even on the overly conservative predictions of the modeling, MDEQ determined in issuing the air permit that Acme's emissions will not pose any unacceptable risk to human health, safety, welfare or the environment. SUMMARY OF ARGUMENT 1. FOLHY's lawsuit contorts the Clean Water Act and RCRA to collaterally challenge a Clean Air Act permit (or the MACT standards embodied in that permit) whose issuance FOLHY failed to challenge directly. FOLHY's claim that Acme's air emissions in compliance with its Clean Air Act permit nevertheless require a Clean Water Act permit as a "point source discharge" based on modeled air deposition to Lake Hypo is contrary to the statutory language, EPA's authoritative statements that air deposition constitutes a "nonpoint source" under the Clean Water Act, caselaw and nearly 30 years of consistent permit history. EPA has consistently stated that air deposition is a nonpoint source under the Clean Water Act, and thus not subject to NPDES permit requirements. A reviewing court must defer to EPA's reasonable construction of the statute it administers. That interpretation is consistent with the nearly 30-year history of permitting under the Clean Water Act. A review of the Clean Water Act and Clean Air Act demonstrates that EPA's interpretation not only is reasonable but is the only proper reading of the statutes. Congress established the Clean Air Act as the statutory mechanism to directly regulate the emission of air pollutants into the ambient air and did not authorize duplicate and potentially inconsistent permitting under the Clean Water Act. Congress' intentions are exemplified by its amendment of the Clean Air Act in 1990 to require EPA to evaluate the adequacy of section 112 of that act to prevent serious adverse effects associated with air deposition of hazardous air pollutants into the Great Lakes. Congress directed EPA to issue such further Clean Air Act standards or control measures as may be necessary and appropriate to prevent those effects. Finally, the only reported case on point squarely rejects FOLHY's arguments.



		2. Even assuming, arguendo, that Acme's air emissions require an NPDES permit, FOLHY wrongly claims that it would be impossible for Acme to qualify for such a permit. As an initial matter, this court lacks jurisdiction to issue a declaratory judgment that Acme could not obtain an NPDES permit as a matter of law. Even if this claim is considered, Acme's air deposition does not constitute a lowering of water quality under MDEQ's antidegradation rule. Furthermore, the Clean Water Act's Total Maximum Daily Load ("TMDL") process allows MDEQ to allocate permissible loadings of mercury to Lake Hypo among existing and future point and nonpoint sources. FOLHY's requested permanent injunction improperly seeks to preempt the Clean Water Act permit process and presents issues that are not ripe for review. 3. Under RCRA, a material must qualify as a "solid waste" before it can be considered a "hazardous waste." RCRA excludes uncontained gaseous material from the definition of "solid waste," and EPA has consistently interpreted RCRA to do so. Because Acme's emissions constitute uncontained gaseous material, they are neither a "solid waste" nor a "hazardous waste." FOLHY's RCRA citizen suit is predicated upon its claim that Acme's air emissions constitute solid or hazardous waste that presents an imminent and substantial endangerment. Accordingly, FOLHY's RCRA claim must be dismissed for lack of subject matter jurisdiction. Even if FOLHY could establish jurisdiction, its claim should be dismissed as a collateral attack on Acme's air emission permit and as contrary to MDEQ's determination, based on a multipathway risk assessment, that Acme's emissions present no unacceptable risk to health or the environment. ARGUMENT I. FOLHY'S CWA CITIZEN SUIT CLAIMS FAIL FOR LACK OF JURISDICATION. A. The Clean Water Act Does Not Require an NPDES Permit for Air Emissions of Mercury in Compliance with Acme's Air Permit 1. Statutory and Regulatory Background Congress created the NPDES permit system under the Clean Water Act, to regulate certain discharges of pollutants into waters of the United States. Clean Water Act section 301(a), 33 U.S.C. § 1311(a), provides in pertinent part that "except as in compliance with . . . sections 1342 [402] . . . of this title, the discharge of any pollutant by any person shall be unlawful." While the United States Environmental Protection Agency ("EPA") is responsible for administering the NPDES permit system, it may delegate NPDES permit issuing authority to the states. 33 U.S.C. § 1342(b). EPA has delegated such authority to the State of Michigan and, consequently, the NPDES permit program within the State of Michigan is administered by MDEQ. FOLHY's Clean Water Act count is premised upon a violation of Clean Water Act section 301(a) as a result of an alleged discharge of a pollutant without an NPDES permit. Under Clean Water Act section 502(12), 33 U.S.C. § 1362(12), the term "discharge of pollutants" means, in pertinent part, "any addition of any pollutant to navigable waters from any point source." However, Acme's stack emissions in compliance with its air permit do not constitute a "discharge of pollutants" within the meaning of that section.



	2. EPA Has Authoritatively Interpreted the Clean Water Act to Include Atmospheric Deposition as a Nonpoint Source and This EPA Interpre- tation is Entitled to Deference EPA has consistently interpreted the Clean Water Act to classify atmospheric deposition of pollutants into waters of the United States as nonpoint sources, not point source discharges subject to NPDES permit requirements. United States Supreme Court precedent requires judicial deference to this interpretation by EPA. It is well established that if a statute is silent or ambiguous on "the precise question at issue," a court must defer to any reasonable construction chosen by the agency that administers that statute. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984). The Chevron deference principle is based upon respect for the proper institutional roles of the judiciary and administrative agencies and thus applies whether the agency interpretation arises from a rulemaking or otherwise. Id. at 865-66; see also Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). The standard of review is very deferential: the agency's construction need not be the one the court itself would adopt or the one it believes would most effectively implement Congressional policy. Chevron, 467 at 843 n. 11, 865-66. The Supreme Court has applied the Chevron deference principle to agency interpretations that are not embodied in regulations. See, e.g., FDIC v. Philadelphia Gear Corp., 476 U.S. 426 (1986) (deference to agency interpretation expressed in a transcript of a meeting with bank officials); United States v. City of Fulton, 475 U.S. 657 (1986), (deferring to agency interpretation not embodied in regulations). Indeed, in a series of three cases analogous to the one presented here, the Sixth Circuit and District of Columbia Circuit rejected claims that dams were point source dischargers subject to NPDES permit requirements. The Sixth Circuit deferred to EPA's interpretation of the Clean Water Act expressed not in any regulation but in EPA's consistent treatment of "dams as nonpoint sources of pollution which are not subject to the discharge permit requirements of section 402." United States ex rel. Tennessee Valley Auth. v. Tennessee Water Quality Control Bd., 717 F.2d 992, 999 (6th Cir. 1983), cert. denied, 466 U.S. 937 (1984). The Sixth Circuit likewise deferred to EPA's interpretation that dams are nonpoint sources in a citizen suit brought against a Michigan hydroelectric facility by FOLHY's sister organization, the National Wildlife Federation. National Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988). The District of Columbia Circuit earlier had rejected a similar challenge brought by the National Wildlife Federation against dam-induced water quality changes in National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 170 (D.C. Cir. 1982). The Gorsuch court recognized that "the power to define point and nonpoint sources is vested in EPA." 693 F.2d at 173 n. 54 (quoting Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1382 (1977)). EPA has clearly stated that atmospheric deposition is classified as a nonpoint source under the Clean Water Act, which, therefore, is not subject to NPDES permit requirements. Most recently, EPA so stated in the preamble to its proposed revisions to the TMDL regulations. 64 Fed. Reg. 46012 (Aug. 23, 1999). That proposal includes "clarifying revisions" to the current definition of "load allocations." In the TMDL process, "wasteload allocations" are made for existing and future point sources, whereas load allocations are made only for existing and future nonpoint sources and for natural background. EPA's proposal expressly defines such load allocations as "[t]he portions of a TMDL's pollutant load allocated to nonpoint sources of a pollutant, including atmospheric deposition or natural background sources." Id. at 46046 (emphasis added). EPA explained: "These proposed revisions explicitly include atmospheric deposition as a nonpoint source of pollutants, codifying EPA's current interpretation." Id. at 46016 (emphasis added). It is important to recognize that although EPA's statement was made in a proposed rulemaking, it merely codifies EPA's longstanding and oft-stated interpretation. For example, more than six years ago, in the preamble to the proposed Water Quality Guidance for the Great Lakes System (commonly referred to as the "Great Lakes Initiative" or "GLI"), EPA referred to "nonpoint sources of pollution (e.g., any diffuse source of pollutant loadings to the waters of the Great Lakes System, such as . . . air deposition . . .)." 58 Fed. Reg. 20802, 20830 (April 16, 1993). EPA reiterated its interpretation through



		out the final GLI regulations. 60 Fed. Reg. 15366 (March 23, 1995). See, e.g., 60 Fed. Reg. at 15416 (nonpoint sources include "background," which includes loadings from "atmospheric deposition"), 15388 ("nonpoint sources include . . . direct wet and dry deposition"), 15371 (referring to comments that point sources contribute only a minor portion of the total mercury loading to the Great Lakes System as contrasted to atmospheric deposition). EPA yet again classified air deposition as a nonpoint source in its public notice of the draft Lakewide Management Plan for Lake Michigan under section 118(c)(4) of the Clean Water Act, 33 U.S.C. 1268(c)(4). 60 Fed. Reg. 22381 (May 5, 1995). See, e.g., 60 Fed. Reg. at 22384 (discussing air deposition and other nonpoint sources), 22385 (contrasting "NPDES facilities" with "atmospheric deposition"), 22387 (contributions from "air deposition . . . or other nonpoint sources"). See also 61 Fed. Reg. 1930, 1931 (Jan. 24, 1996) ("loads allocated to nonpoint sources (e.g. atmospheric inputs")). EPA again classified sources of atmospheric deposition as nonpoint sources in its 1987 Nonpoint Source Guidance. EPA Office of Water, Nonpoint Source Guidance (1987) at 3. EPA's discussion of air deposition in its proposed revisions to the NPDES program and federal antidegradation policy, a companion rule to its proposed TMDL rule revisions, is instructive: EPA recognizes that air deposition contributes to some of the water quality problems that exist today. EPA is considering whether to allow an offset from an air pollution source emitting the same pollutant the new or significantly expanded discharger is proposing to discharge. EPA would consider this only where the air pollution source directly affects the waterbody in the vicinity of the new or significantly expanded discharge. EPA invites comment on how some of the additional requirements related to obtaining an offset would be met if EPA allowed dischargers to obtain offsets from an air pollution source(s)." 64 Fed. Reg. 46058, 46070 (Aug. 23, 1999) (emphasis added). EPA's discussion is significant because it acknowledges the difference between an air emission source, regulated under the Clean Air Act, and a water pollutant discharge, regulated under the NPDES program. EPA recognizes that NPDES permit requirements do not apply to an air pollution source, even if it "directly affects the waterbody." Id. (emphasis added). Consistent with its determination that air emission sources are not subject to regulation as point source discharges, neither EPA (nor any NPDES-approved state) to our knowledge has ever required an NPDES permit for such sources. FOLHY cannot point to any NPDES permit to the contrary out of the many thousands issued in the 27 years of the NPDES program. Cf. National Wildlife Fed'n v. Consumers Power Co., 862 F.2d at 587 (relying in part on the fact that EPA had not required an NPDES permit at 34 other pumped storage facilities). Neither EPA nor MDEQ has required Acme to obtain an NPDES permit for air emissions from its stack. Even FOLHY does not, and rationally could not, claim that either EPA or MDEQ has taken the position that an NPDES permit is required for air emission sources in compliance with a Clean Air Act permit. More importantly, FOLHY fails to even discuss EPA's interpretation. Congressional statements support EPA's interpretation. For example, the Senate Report accompanying S. 2093 states that "[n]onpoint pollution enters the nation's waters from many sources: . . . including atmospheric deposition (affecting the Great Lakes and Chesapeake Bay, for example)." S. Rep. No. 257, 103rd Cong., 2nd Sess. 1994, 1994 WL 184553, 97. Similarly, the House Report accompanying H.R. 961 states that "the major remaining source of water pollution comes from diffuse sources, known as nonpoint sources. These include . . . atmospheric deposition and contaminated sediments." H.R. Rep. 112, 104th Cong. 1st Sess. 1995, 1995 WL 262332, 976. EPA's considered interpretation is consistent with the Clean Water Act and Clean Air Act and must be deferred to under Chevron as a reasonable construction. The inescapable conclusion is that air emissions are not subject to the Clean Water Act's permit requirement.



	3. Congressional Intent Makes Clear that Clean Water Act Discharge Permits Are Not Required for Acme's Air Emissions Not only is EPA's interpretation of the Clean Water Act reasonable, but it is correct. Congress enacted the 1970 Clean Air Act as the comprehensive mechanism to regulate emissions of pollutants into the ambient air and the 1972 Clean Water Act as the comprehensive mechanism to regulate discharges of pollutants into waters of the United States. The same Congressional committees and leaders were instrumental in enacting both the 1970 Clean Air Act and 1972 Clean Water Act. The regulatory features of one statute frequently reflect legislative ideas developed in connection with the other statute. The two statutes are media specific. Examination of the two statutes makes clear that Congress intended the Clean Air Act as the exclusive statutory mechanism to regulate the emission of air pollutants into the ambient air. FOLHY's Clean Water Act claim would derail Congress' carefully crafted approach. It would include as a point source discharge subject to Clean Water Act permitting every addition of a pollutant from a permitted Clean Air Act emissions stack that reaches a surface body. Such an immense expansion of Clean Water Act permitting jurisdiction without an explicit mandate by Congress must be rejected. A comparison of key Clean Air Act and Clean Water Act definitions illustrates EPA's separate jurisdiction under the two statutes. For example, Congress' definition of "pollutant" in the 1972 Clean Water Act clearly borrowed from its definition of "air pollutant" in the 1970 Clean Air Act. The Clean Air Act's definition of "air pollutant" in section 302(g), 42 U.S.C. § 7602(g), includes "any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air." (Emphasis added.) Clean Water Act section 502(6), 33 U.S.C. § 1362(6), defines "pollutant" to include "chemical wastes, biological materials, radioactive materials, . . . and industrial, municipal, and agricultural waste discharged into water." (Emphasis added.) Congress elsewhere has reiterated its view that "emissions" are distinct from "discharges." For example, in the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), Congress, in defining a "release," used both the terms "emitting" and "discharging" to indicate that they are separate activities. 42 U.S.C. § 9601(22). Congress crafted two separate, comprehensive regulatory schemes: one under the Clean Air Act to regulate the emission of pollutants into the ambient air and a second under the Clean Water Act to regulate the discharge of pollutants into the nation's waters. A comparison of the Clean Water Act's definition of "effluent limitation" and the Clean Air Act's definition of "emission limitation" shows a similar division in jurisdiction. The Clean Water Act defines "effluent limitation" as a "restriction established by a State or [EPA] on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters . . .." 33 U.S.C. § 1362(11). (Emphasis added.) The Clean Air Act defines "emission limitation" as a "requirement established by the State or [EPA] which limits the quantity, rate or concentration of emissions of air pollutants . . .." 42 U.S.C. § 7602(k). Congress in the Clean Water Act drew heavily upon the Clean Air Act, but was careful to distinguish the Clean Water Act's jurisdiction over discharges into water from the Clean Air Act's jurisdiction over emissions into the air. In doing so, Congress demonstrated its intent to avoid duplicative or inconsistent regulation under the two statutes. FOLHY's claim that the Clean Air Act was not designed to address, and does not address, the problem of atmospheric deposition is nonsense. Congress explicitly chose the Clean Air Act as the vehicle for EPA regulation of stack emissions of air pollutants, including those that may have an effect on water quality through atmospheric deposition. Congress in Clean Air Act section 103(e), 42 U.S.C. § 7403(e), directed EPA to conduct a research program that includes an "evaluation of the effects of air pollution on water quality, including assessments of the short-term and long-term ecological effects of acid deposition and other atmospherically derived pollutants on surface water (including wetlands and estuaries) and groundwater." Congress in Title IV of the Clean Air Act established an entire regulatory program to address the effects on surface waters and other natural resources of acid deposition resulting from air emissions of sulfur and nitrogen oxides. 42 U.S.C. §§ 7651-7651o. Congress clearly recognized that this program would address acid deposition that may affect aquatic resources. See Section 404 of Public L. 101-549, 104 Stat. 2399 (1990) (EPA's report to Congress must address the feasibility and effectiveness of acid deposition standards to protect sensitive aquatic and terrestrial resources).



		Perhaps most tellingly, Congress in 1990 chose to amend section 112 of the Clean Air Act, which addresses hazardous air pollutants, to expressly require EPA to "conduct a program to identify and assess the extent of atmospheric deposition of hazardous air pollutants . . . to the Great Lakes" and certain other waters (the "Great Waters Program"). As part of this Great Waters Program, EPA is required to "evaluate any adverse effects to public health or the environment caused by such deposition . . . and assess the contribution of such deposition to violations of water quality standards established pursuant to the [Clean Water Act] . . .." 42 U.S.C. § 7412(m)(1)(D). Congress further required EPA to "determine whether the other provisions of this section [112] are adequate to prevent serious adverse effects to public health and serious or wide-spread environmental effects . . . associated with atmospheric deposition to the Great Lakes . . . of hazardous air pollutants (and their atmospheric transformation products)." 42 U.S.C. 7412(m)(6) (emphasis added). EPA was required to report the results of its determination to Congress and based on that determination to "promulgate, in accordance with this section, such further emission standards or control measures as may be necessary and appropriate to prevent such effects . . .." Id. (emphasis added). Thus, Congress, when addressing the precise concern raised by FOLHY the potential effects on the Great Waters of atmospheric deposition of hazardous air pollutants addressed that concern under the Clean Air Act and directed EPA to promulgate additional standards under the Clean Air Act as necessary to prevent such effects. The Senate Report on the 1990 Clean Air Act Amendments that created the Great Waters Program further evidences this Congressional intent. The Senate Report states that atmospheric deposition of hazardous air pollutants to the Great Lakes region may be recognized by EPA when setting emission standards or residual risk standards under Section 112. S. Rep. 101-228, 101st Cong., 1st Sess. 1989, 1989 WL 236970, 127-28. Congress expressly patterned the Section 112 technology-based approach applicable to air emission sources of hazardous air pollutants on the Clean Water Act's technology-based standards approach to effluent discharges of toxic pollutants: The amendments to section 112 made by this legislation are intended to accelerate the regulation of hazardous air pollutants by creating a program of technology-based standards similar to those which have already been implemented under the Clean Water Act for control of toxic effluent discharges to surface waters* from major industrial sources. The legislation will establish emission standards for the major sources of a list of air pollutants . . .. Id. at 128-29 (emphasis added). Congress could not have been clearer in demonstrating its intent to separate permit requirements under the Clean Air Act for air emission sources from permit requirements under the Clean Water Act for effluent dischargers. 1. FOLHY's argument never explains why Congress chose to enact the Great Waters Program under the Clean Air Act, rather than the Clean Water Act. Moreover, Congress placed the Great Waters Program in Section 112, which establishes a permit program for emission sources of hazardous air pollutants that is expressly* patterned after the NPDES permit program for toxic effluent discharges. Surely, had Congress intended or contemplated that these air emission sources also were subject to dual permitting under the NPDES program it would have made some mention of that fact. It did not do so because it did not authorize such extraordinary dual permitting. The fact that Congress, in addressing the issue of atmospheric deposition of mercury and other hazardous air pollutants to the Great Lakes, did not once cite the NPDES permit program under the Clean Water Act speaks volumes. Cf. National Wildlife Fed'n v. Consumers Power Co., 862 F.2d at 588 ("When Congress recently focused on the water pollution problem caused by dams . . . it did not refer to the NPDES program or require NPDES permitting in the amendment."). EPA itself in its notice of determination under the Great Waters Program stated that "the legal authorities contained in section 112 of the [Clean Air Act] are adequate to prevent serious adverse effects to public health and . . . [the environment] . . . associated with atmospheric deposition of [hazardous air pollutants] and their atmospheric transformation products to the Great Waters." 63 Fed. Reg. 14090, 14091 (March 24, 1998) (emphasis added). Indeed, EPA's determination under Section 112(m) never even discusses the NPDES permit program. Moreover, Congress did not establish any comparable program under the Clean Water Act to address atmospheric deposition. FOLHY's preferred approach may be to subject air emission sources to duplicate or inconsistent NPDES permit requirements. However, it is not Congress' chosen approach.



	4. Nearly 30 Years of History Under the CWA Demonstrates That Stack Emissions Are Not "Point Source Discharges" As discussed above, EPA itself has stated definitively that atmospheric deposition is cognizable under the Clean Water Act only as nonpoint source pollution, which is not subject to NPDES permitting requirements. Not surprisingly then, FOLHY cannot point to a single instance in the nearly 30-year history of the Clean Water Act and Clean Air Act in which EPA or a delegated state NPDES permit program has asserted that stack emissions of air pollutants that may eventually deposit in a nearby surface water body require an NPDES permit. The EPA and delegated state permit programs have issued thousands upon thousands of NPDES permits, yet FOLHY cannot point to a single NPDES permit (and, indeed, we believe there is none) that attempts to regulate the emission of pollutants into the ambient air. EPA has promulgated over 50 effluent limitations guidelines under section 304 of the Clean Water Act, 33 U.S.C. §1314, that set forth the technology-based effluent limitations for the nation's most significant industrial point source discharges. FOLHY cannot point to a single effluent limitations guideline or EPA development document for those guidelines (and, again, we believe there is none) that even attempts to address the emission of pollutants into the ambient air which may be deposited to waters of the United States. EPA acted consistent with this separation of jurisdiction between the Clean Water Act and Clean Air Act in its recent "cluster rule" for the pulp, paper and paperboard industry. This cluster rule promulgated effluent limitations guidelines under the Clean Water Act and national emission standards for hazardous air pollutants under the Clean Air Act for this industry. EPA expressly recognized that its long-term goals for its regulation of this industry "include improved air quality, improved water quality, the elimination of fish consumption advisories downstream of mills, and the elimination of ecologically significant bioaccumulation." 63 Fed. Reg. 18504, 18507 (April 14, 1998) (emphasis added). EPA did not attempt to use the Clean Water Act to regulate air emissions from this industry, but instead correlated its MACT standards for emissions to air and its effluent limitations guidelines for discharges to water to help achieve these goals. See, e.g., 63 Fed. Reg. at 18510 (chloroform from bleaching systems). 5. Relevant Case Law Rejects the Claim that NPDES Permits May be Required for Air Emission Sources FOLHY attempts to overcome the overwhelming authority that air emission sources are not point sources based on the remedial goals of the Clean Water Act and caselaw broadly interpreting "point source" in very different contexts. Acme agrees that the Clean Water Act is a broad remedial statute; however, even such statutes have their limits. The Sixth Circuit has warned against simply "pointing to the `remedial legislation' litany" as a reason to expand statutory jurisdiction in "nearly every conceivable scenario." United States v. Cordova Chem. Co. of Mich., 113 F.3d 572, 577 (6th Cir. 1997), vacated and remanded on other grounds sub nom. United States v. Bestfoods, 524 U.S. 51 (1998) (CERCLA liability). See also National Wildlife Fed'n v. Gorsuch, 693 F.2d at 178 ("it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal"). The Second Circuit similarly recognized that the questions posed by particular circumstances "cannot be resolved merely by simple reference to [the] admirable goal [of the Clean Water Act]." United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2nd Cir. 1993). Thus, that court held that an individual's disposal of vials of blood into a waterbody did not constitute a point source discharge. Jurisdiction under the Clean Water Act properly is limited here where it otherwise would create conflict with the Clean Air Act, another broad, remedial statute. Thus, the only reported case that directly addresses the applicability of the Clean Water Act to stack emissions of air pollutants, Chemical Weapons Working Group, Inc. v. U.S. Department of the Army, 111 F.3d 1485 (10th Cir. 1997), squarely rejects FOLHY's argument. In Chemical Weapons, the plaintiffs argued, as does FOLHY in this case, that the Clean Water Act regulated the emission of limited amounts of pollutants into the atmosphere, even though that emission complied with an air permit issued by the state. Because the emissions in Chemical Weapons involved chemical warfare agents whose discharge into navigable waters is absolutely barred by section 301(f), 33 U.S.C. § 1311(f), the U.S. Court of Appeals for the Tenth Circuit held in part that the plaintiffs' interpretation would effectively shut down the incinerator operation, a result inconsistent with Congressional



		approval and funding of the incineration of such weapons. However, contrary to FOLHY's attempts to limit this decision, the court's grounds for its decision are not limited to circumstances unique to section 301(f). The court also rejected the application of the Clean Water Act to air emissions because it would lead to "irrational results," such as the regulation under the Clean Water Act "of any air emission that might possibly result in atmospheric deposition to navigable waters." 111 F.3d at 1490. The application of Clean Water Act discharge requirements to emissions from "cars and chimneys," among other sources, "under the Clean Water Act exposes the absurdity of [this] position." Id. The court also stated that "[t]ellingly, Plaintiffs also fail to cite a single instance in which stack emissions are regulated under the Clean Water Act." Id. Thus, the court concluded that "common sense dictates that [the defendant's] stack emissions constitute discharges into the air -- not water . . .." Id. Similarly, this Court should not abandon common sense, nor assume that Congress did so, but instead should reject FOLHY's strained attempt to apply a Clean Water Act permit program to emissions to the atmosphere in compliance with a Clean Air Act permit. The Chemical Weapons court also rejected the plaintiffs' proposed construction of section 301(f) because it would create a regulatory conflict between the Clean Water Act and the Clean Air Act. The court declined "Plaintiffs' invitation to create such a conflict, especially since the pollution effects of atmospheric deposition are expressly considered and regulated under the Clean Air Act." Id. at 1491. This court also must reject the plaintiffs' Clean Water Act claim because it would drastically alter the pervasive regulatory scheme embodied in the Clean Air Act. To apply the Clean Water Act's regulatory scheme to Acme's air emissions would potentially expand the NPDES permit requirement to nearly every smoke stack and motor vehicle exhaust pipe in the country. To so vastly expand the scope of the Clean Water Act would cause lasting damage to Congress' carefully chosen regulatory scheme in the Clean Air Act, including its program for motor vehicle emission standards, by imposing duplicative and potentially inconsistent requirements on emissions sources. Both the Clean Air Act and the Clean Water Act would impose limitations at precisely the same point -- where the emissions exit the facility's stack. Dual permitting at the identical point under two different media-specific environmental statutes would be unprecedented and defies common sense. Absent a clear mandate in the Clean Water Act, it is unreasonable to assume that Congress intended such an unprecedented and impractical result. Cf. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (rejecting expansive interpretation of Occupational Safety and Health Act); Union Elec. Co. v. EPA, 427 U.S. 246, 263 (1976) (practical considerations lead Court to reject interpretation of Clean Air Act that would impose wasteful burdens upon EPA and the states). The United States Supreme Court similarly has limited the application of the Clean Water Act to discharges of radioactive materials regulated under the Atomic Energy Act to avoid altering that statute's "pervasive regulatory scheme," even in the absence of express limiting language in the Clean Water Act. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 24 (1976). The Supreme Court indicated that it would need a clear expression of contrary legislative intent to recognize such a substantial change in policy. Id. No such expression of contrary legislative intent exists here. Cf. Resource Investments, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162, 1169 (9th Cir. 1998) (rejecting Corps' claim that landfill located in wetlands required Section 404 Clean Water Act permit even though its siting was approved under RCRA, because it would create regulatory overlap with potentially inconsistent results). Acme's permitted air emissions also are not subject to NPDES permit requirements because they lack the necessary nexus between a discharge source and a "water of the United States." Chemical Weapons, 111 F.3d at 1490 n.3. The courts have struggled to define the exact reach of the Clean Water Act's NPDES jurisdiction. In particular, case law is deeply split on whether a discharge of pollutants to groundwater that is hydrologically connected to a nearby surface water requires an NPDES permit. Far more courts than FOLHY suggests in its brief have held that NPDES jurisdiction does not extend to such situations. See, e.g., Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), cert. denied 115 S. Ct. 322; Patterson Farm, Inc. v. City of Britton, 22 F.Supp. 2d 1085, 1091 (D.S.D. 1998); Allegheny Environmental Action Coalition v. Westinghouse Electric Corp., 1999 U.S. Dist. LEXIS 1838, 7 (W.D. Pa. Jan. 30, 1998); Umatilla Waterquality Protective Ass'n, Inc. v. Smith Frozen Foods, Inc.,* 962 F. Supp. 1312 (D. Or. 1997) (concluding, after a particularly extensive review of the Clean Water Act's Legislative history, that the CWA does not regulate even groundwater hydrologically connected to a



	surface water); Interfaith Community Organization v. AlliedSignal, Inc., 928 F.Supp. 1339, 1353 n. 18 (D.N.J. 1996); Kelley v. United States, 618 F. Supp. 1103 (W.D. Mich 1985); United States v. GAF Corp., 389 F.Supp. 1379, 1383-84 (S.D. Tx. 1975). See also Town of Norfolk v. U.S. Army Corps. of Engineers, 968 F.2d 1438, 1451 (1st Cir. 1992) (deferring to Corps' determination that groundwaters connected to surface waters are not "waters of the United States"). However, the clear lesson of the case law is that NPDES jurisdiction does not extend beyond a discharge of a pollutant directly from its source to a receiving water, whether it be a surface water or possibly groundwater that is hydrologically connected to a nearby surface water. The Tenth Circuit in Chemical Weapons rejected that plaintiffs' attempt to use the groundwater analogy in supporting their argument that stack emissions require an NPDES permit. 111 F.3d at 1490 n.3 ("Without determining the precise jurisdictional limits of the Clean Water Act, we hold only that [the facility's] stack emissions, unlike other indirect discharges lack the requisite nexus to navigable waters to render them subject to regulation under that statute"). This court should reject FOLHY's similar attempt to rely on the groundwater analogy (and to rely selectively on only those groundwater cases which have reached its preferred result). An emission of mercury from Acme's stack into the ambient air does not constitute a discharge into "waters of the United States." 6. Emissions Stacks Are Not Point Sources Moreover, Acme's stack emissions of mercury into the ambient air in compliance with its air permit do not constitute a point source addition of mercury to Lake Hypo. The Clean Water Act's definition of "point source," 33 U.S.C. § 1362(14), refers to a long list of conveyances such as pipes, ditches, channels, tunnels, conduits and wells, but pointedly does not include "stacks," a term reserved by Congress for the Clean Air Act. The Clean Water Act must be construed in light of the previously enacted Clean Air Act. Cf. United States v. Shell Oil Co., 605 F. Supp. 1064, 1070 (D.Colo. 1985) (CERCLA must be construed in light of previously enacted RCRA. Accordingly, the Court should not apply the NPDES permit requirements of the Clean Water Act to stack emissions directly regulated under and expressly authorized by the Clean Air Act. *B. Assuming Arguendo* That Acme's Stack Emissions Require an NPDES Permit, This Court Lacks Jurisdiction To Permanently Enjoin Acme's Operations For The Failure To Obtain A NPDES Permit Under the CWA citizen suit provision, the court has jurisdiction to enforce an effluent standard or limitation it finds a defendant is violating. 33 U.S.C. § 1365(a). In this case, the "effluent standard or limitation" FOLHY accuses Acme of violating is discharging a pollutant without a permit, which would be a violation of section 301(a). Therefore, this court could require Acme to apply for and obtain a permit before continuing its operations. FOLHY, however, requests a permanent injunction because it believes Acme will be unable to obtain the allegedly necessary permit. This court lacks jurisdiction to permanently enjoin Acme's operations for Acme's purported failure to obtain an NPDES permit. Moreover, as discussed below, Acme is entitled to have an opportunity to obtain an NPDES permit, if one were to be required for its air emissions. C. Assuming Arguendo That Acme's Stack Emissions Require An NPDES Permit, The CWA Citizen Suit Provision Cannot Be Used To Enforce Water Quality Standards** FOLHY contends that Acme's emissions violate the GLI's antidegradation policy and the Clean Water Act's TMDL requirements. FOLHY is arguing that water quality standards are equivalent to "effluent standards or limitations" and that the court can enforce them under section 505(a). The CWA citizen



		suit provision provides FOLHY no cause of action to enforce water quality standards not incorporated into a permit —it applies only to permit violations and not to violations of water quality standards. Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2nd Cir. 1993) ("ASLF"), cert. denied, 513 U.S. 811 (1994) (only permit conditions enforceable under a CWA citizen suit); Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 850 (9th Cir. 1987) ("ONRC") ("it is not the water quality standards themselves that are enforceable in section 1311(b)(1)(C), but it is the "limitations necessary to meet" those standards, or "required to implement the standards."). As the United States Supreme Court recognized, it is the NPDES permit that translates water quality standards into enforceable obligations of the discharger. EPA v. California ex rel State Water Resources Control Bd., 426 U.S. 200, 205 (1976).¹ FOLHY may attempt to rely upon Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995) ("NWEA"), cert. denied, 518 U.S. 1918 (1996), to argue that water quality standards are enforceable by citizens. In NWEA, a citizen brought an action under section 505 alleging that the City of Portland was regularly violating a permit condition prohibiting any discharges that would violate state water quality standards. The court held that the "plain language of CWA § 505 authorizes citizens to enforce all permit conditions." Id. at 986 (quoting 33 U.S.C. §§ 1365(a)(1)(A) (may commence action violations "of effluent standard or limitation"), (f)(2) ("effluent standard or limitation" includes a section 301 or 302 effluent standard or other limitation), (f)(6) ("effluent standard or limitation" includes section 402 permit or condition). Significantly, the City's NPDES permit contained a condition prohibiting any discharge that would violate water quality standards. Because of the existence of the permit condition, the court held that NWEA had standing under section 505(a) and (f)(6) to enforce the water quality standards condition in the City's permit. Id. at 990. The court acknowledged that in the absence of an express permit condition prohibiting discharges that violate water quality standards, there is no jurisdiction under section 505 to enforce bare water quality standards. Id. at 989 n. 11 (citing cases that hold that water quality standards are enforceable under section 505 only if incorporated into an NPDES permit.) In this case, there is no permit and thus no permit conditions to enforce pursuant to section 505(f). Therefore, the rationale of ASLF and ONRC —holding that water quality standards and other regulations outside the scope of a permit are unenforceable —is controlling. FOLHY cannot enforce bare water quality standards against Acme within the context of a CWA citizen suit, but can only require that Acme obtain a permit. D. This Court Lacks Jurisdiction Over FOLHY's Claim That Acme Would Be Denied An NPDES Permit FOLHY asks this court to rule that Acme would be unable, under any circumstance, to obtain an NPDES permit. FOLHY brings its CWA claim against Acme under Section 505, 33 U.S.C. § 1365. It has not brought a claim against the State of Michigan, which would be responsible for issuing a permit. Neither has it pled nor could it plead a jurisdictional basis for its request for a declaratory judgment that no NPDES permit could be issued to Acme. Thus, FOLHY's claim that Acme cannot obtain an NPDES permit must be dismissed for lack of subject matter jurisdiction.



		1 Acme is not asserting, as FOLHY contends, that a company without a CWA permit is free to pollute because it has no legal obligations. Acme denies that it needs a CWA permit. If Acme is wrong and the court holds that Acme must get a permit, Acme agrees that it can be forced to do so by FOLHY's citizen suit. In the absence of a permit, FOLHY cannot enforce water quality standards. It can only require that Acme obtain a permit. Only through a permit do water quality standards become enforceable obligations of a point source discharger.



	E. FOLHY's Argument That Acme Would Be Denied An NPDES Permit Is Both Incorrect and Premature 1. Acme's Emissions, Which Are Authorized by MDEQ, Would Not Vio late Antidegradation Rules Because They Would Not Constitute a Lowering of the Water Quality of Lake Hypo. If this court should determine that Acme needs an NPDES permit to operate, Acme must be given the opportunity to apply for and make the requisite antidegradation demonstration. The GLI requires Michigan and other Great Lakes states to "identif[y] minimum water quality standards, antidegradation policies, and implementation procedures for the Great Lakes System to protect human health, aquatic life, and wildlife." 40 C.F.R. §§ 132.1-132.6. States must adopt provisions consistent with this guidance. American Iron and Steel Institute v. EPA, 115 F.3d 979, 987 (D.C. Cir. 1997) (guidance provides minimum standards states must meet). EPA notes that the GLI itself is unenforceable. Id. It will become enforceable only if it is adopted by a state or imposed by the agency on a state that fails to submit an acceptable plan. Id. The State of Michigan has issued regulations consistent with the GLI which can be found in Part 4 (Water Quality Standards) and Part 8 (Water Quality-Based Effluent Limit Development For Toxic Substances) of the Administrative Rules. MAC R. 323.1041-.1117 and R. 323.1201-.1221, respectively. These rules do not on their face require the denial of an NPDES permit to a source such as Acme. Rule 1215 (R. 323.1215) provides that an NPDES permit may authorize the discharge of bioaccumulative chemicals of concern ("BCCs"), such as mercury, that lower the water quality of the receiving water body if the permittee makes a successful antidegradation demonstration pursuant to Rule 1098 (R. 323.1098). Rule 1098 provides that there shall be no lowering of water quality with respect to a pollutant that is causing nonattainment of a designated use in a waterbody. R. 323.1098(2). In this case, fish advisories have been issued due to the presence of mercury which have lead MDEQ to list Lake Hypo as an impaired water body. FOLHY, in assuming that Acme's mercury emissions would lower the water quality with respect to mercury, assumes away many highly complex legal and technical issues relating to the air deposition of mercury emissions to Lake Hypo. Acme is entitled to the opportunity to establish that its emissions would not lower the water quality of Lake Hypo. Because Acme's air emissions are authorized by MDEQ's air permit, after a permitting process that evaluated potential air deposition to Lake Hypo as part of a multipathway risk assessment, the predicted air depositions do not constitute a "lowering of water quality" under the Part 4 rules. Rule 98(6) (R. 323.1098(6)) excludes several enumerated circumstances from constituting a lowering of water quality, including "[i]ncreased BCC loadings within the authorized levels of a limit in an existing control document . . .." MAC R. 323.1098(6)(j). A "control document" is defined as "any authorization issued by [MDEQ] to any source of pollutants to surface waters of the state that specifies conditions under which the source is allowed to operate." MAC R. 323.1043(t). Because the air emission permit issued by MDEQ to Acme qualifies as such a control document, the increased mercury loadings predicted by the modeling conducted in the permit proceeding do not constitute a lowering of the water quality of Lake Hypo. Thus, MDEQ's antidegradation provisions, which were approved by EPA, do not preclude the issuance of an NPDES permit to Acme. 2. Reliance Upon Unvalidated Modeling That Predicts a Small Percentage Increase in Mercury in Lake Hypo Would be Arbitrary and Capricious Moreover, use of the modeling in this instance to preclude or condition Acme's operations would be arbitrary and capricious. Although FOLHY attempts to present the modeled predictions of an increase in fish mercury levels of less than 0.6 - 3% as established facts, they are not. The modeling used in this instance not only makes overly conservative simplifying assumptions, but has not been validated by real world data. In fact, real world data from a recent study by Clyde Sweet and Eric Prestbo presented



		little more than a month ago to the Mercury in the Environment Specialty Conference in Minneapolis, entitled "Wet Deposition of Mercury in the U.S. and Canada," show that actual levels of mercury in rainfall in the industrial portions of North America differ dramatically from the levels predicted by EPA models. Similarly, a recent study conducted in the Whitefish Bay of Lake Superior by Dr. James Hurley contradicts the assumptions about methylation of mercury in the water column used to model Acme's potential effects on fish in Lake Hypo. The Sixth Circuit found arbitrary and capricious EPA's use of a model without validation to predict sulfur dioxide air emissions diffusion at two power plants adjacent to Lake Erie. Ohio v. EPA, 798 F.2d 880 (6th Cir. 1986). The court had concluded in an earlier opinion (Ohio v. EPA, 784 F.2d 224 (6th Cir. 1986)) that EPA had not evaluated, validated or empirically tested the model at the sites in circumstances where the parties agreed that site-specific lakeshore effects in the dispersion of sulfur dioxide were significant but untested and unknown. The Sixth Circuit found arbitrary and capricious EPA's use of a model which was subject to four validation studies but with "unimpressive" showings. 784 F.2d at 230. Similarly, the District of Columbia Circuit held that EPA's use of a generic air dispersion model to designate methylene diphenyl diisocyante as a high risk pollutant was arbitrary and capricious. Chemical Mfrs. Ass'n v. EPA, 28 F.3d 1259, 1261 (D.C. Cir. 1994). "Judicial deference to the agency's modeling cannot be utterly boundless: we must reverse the agency's application of the generic air dispersion model as arbitrary and capricious if there is simply no rational relationship between the model and the known behavior of the hazardous air pollutant to which it is applied." Id. at 1265. An agency's failure to continually develop, review and apply updated scientific information may render its use of modeling arbitrary and capricious. Texas v. EPA, 499 F.2d 289, 301 n. 16 (5th Cir. 1974), cert. denied, 427 U.S. 905 (1976). Here, the modeling has not been validated, fails to incorporate the latest scientific information and, indeed, is contrary to real world data, especially with respect to mercury methylation in the water column. This modeling cannot support regulatory decisions to preclude or substantially condition an NPDES permit, if one were to be required for Acme's air emissions. 3. Even if Subject to NPDES Permit Requirements, Acme Could Qualify for a Permit Under the TMDL Process Furthermore, FOLHY's claim that Acme cannot obtain an NPDES permit totally ignores the fact that the TMDL process involves an allocation of loadings among present and future point and nonpoint sources to the water body. For example, MDEQ's antidegradation rule excludes as a "lowering of water quality" any "discharges at a site where there is a simultaneous enforceable decrease in the allowed loading of the pollutant . . . from sources contributing to the receiving water body, such that there is no net increase . . .." MAC R. 323.1098(6)(k). Thus, it is clear that even if an NPDES permit is required for Acme's air emissions, it may qualify for such a permit. FOLHY's attempt to deny Acme the opportunity to seek such a permit should be rejected. 4. The Issue of Whether Acme Would be Issued an NPDES Permit Is Not Ripe for Review In other words, the issue of whether Acme can qualify for an NPDES permit is not ripe for review in this proceeding. As the U.S. Supreme Court has explained, the doctrine of ripeness seeks "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9 (1967). Abbot Laboratories accordingly established a two-part test to evaluate ripeness: "the fitness of the issues for judicial decisions and the hardship to the parties of withholding court consideration." Id. Even "purely" legal issues are not necessarily ripe for review. For example, in Diamond Shamrock Corp v. Costle, 580 F.2d 670 (D.C. Cir. 1978), the court held that challenges to EPA's regulations under the Clean Water Act that generally refuse to grant a discharger credit for pollutants in its intake water was not ripe for review. The court emphasized the fact that the parties challenging the regulations failed to point to



	any present impact or hardship on them. Id. at 673-74. "[I]n the absence of hardship only a minimum showing of countervailing judicial or administrative interest is needed, if any, to tip the balance against review." Id. at 674 (citations omitted). Cf. Natural Resources Defense Council, Inc. v. EPA, 859 F.2d 156, 190 (D.C. Cir. 1988) ("A Petitioner cannot show hardship by positing a speculative or hypothetical future harm."). The Diamond Shamrock Court also found that judicial interests would be furthered by withholding review. "Judicial review is generally facilitated by waiting until administrative policy is implemented for then a court can be freed, at least in part, from theorizing about how a rule will be applied and what its effect will be." 580 F.2d at 674. The D.C. Circuit again rejected as unripe a challenge to the same EPA regulations in the Natural Resource Defense Council case. The court noted that "the broad legal issue may have links to the concededly fact-dependant ones that we cannot now fully perceive," and, therefore, concluded that not only the fact-dependent claims, but also the more purely legal one, were unripe. 859 F.2d at 205. FOLHY's claims that Acme cannot be issued an NPDES permit ignore factual and legal issues that properly should be developed in the NPDES process. FOLHY will have ample opportunity to assert its position in that process and will suffer no hardship by this court's refusal to review them here. Failure to dismiss FOLHY's claim that Acme cannot be issued an NPDES permit not only would deprive Acme the opportunity to show that it qualifies for such a permit, should one be declared necessary, but would deprive MDEQ the opportunity to further develop the facts and make appropriate policy judgments relevant to the issue. Accordingly, the ripeness doctrine provides yet another basis for this court to dismiss FOLHY's claim. FOLHY's attempts to preempt the permitting process and deprive Acme of an opportunity to demonstrate compliance with the State of Michigan's antidegradation policy and TMDL program should be rejected. F. If Acme's Stack Emissions Do Not Require An NPDES Permit, FOLHY Has No Cause Of Action Under The CWA Citizen Suit Provision FOLHY makes the alternative argument that if Acme's emission stack is not a point source, it nonetheless violates the GLI's antidegradation policy. FOLHY argues that the GLI antidegradation policy is applicable to a nonpoint source "where independent regulatory authority exists requiring compliance with water quality standards." GLI antidegradation policy, § I. This court lacks jurisdiction over this claim. "[P]laintiffs cannot enforce state water quality standards with respect to nonpoint sources pursuant to [the citizen suit provision] because Congress did not so provide." ONRC at 851. FOLHY claims that Acme is violating section 301(a) because it is discharging a pollutant without a NPDES permit. Section 301(a) provides that "the discharge of any pollutant" shall be unlawful unless, among other things, the source obtains a section 402 permit. Section 402 provides that "discharges of pollutants" must be permitted pursuant to this section or sections 318 and 404. "Discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source . . . ." 33 U.S.C. § 1362(12). FOLHY cannot dispute that the basis for its citizen suit —failure to obtain a NPDES permit —is premised upon the existence of a discharge of pollutants by a point source. In the absence of a point source discharge, its Clean Water Act suit cannot be maintained.



		II. FOLHY'S RCRA CLAIM FAILS BOTH FOR LACK OF JURISDICTION AND FOR FAILURE TO DEMONSTRATE THAT ACME'S EMISSIONS PRESENT AN IMMI- NENT AND SUBSTANTIAL ENDANGERMENT In its last challenge, FOLHY asserts a cause of action under section 6972(a)(1)(B), which provides in relevant part as follows: any person may commence a civil action on his own behalf (1)(B) against any person ... including any past or present generator, past of present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment[.] 42 U.S.C. § 6972(a)(1)(B) (emphasis added). FOLHY alleges that Acme's permitted air emissions will create an imminent and substantial endangerment to health or the environment and on that basis urges the court to enjoin the operation of Acme's facility. FOLHY's allegations are wrong as a matter of law and fact. A. Uncontained Gaseous Emissions are Not "Solid Waste" Within the Meaning of RCRA Section 1004(27) and in Accordance With EPA's Authoritative Interpre- tation and, Therefore, are Not "Hazardous Waste" As the uncontested facts in this case show, Acme's stack will emit only gaseous mercury (50% mercury chloride and 50% elemental mercury) and no particulate mercury. Accordingly, Acme's mercury emissions constitute neither solid waste, nor hazardous waste as required for a citizen suit under RCRA. FOLHY's RCRA citizen suit must be dismissed for lack of subject matter jurisdiction. RCRA defines "solid waste" as: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations . . . 42 U.S.C. 6903(27) (emphasis added). Once again, FOLHY's claims are contradicted by the applicable statute and its interpretation by EPA. As the italicized language demonstrates, RCRA excludes uncontained gaseous material, such as Acme's atmospheric emissions, from the definition of solid waste. EPA, which has "chief responsibility for the implementation and enforcement of RCRA," Meghrig v. KFC Western, Inc., 516 U.S. 479, 486 (1996), has consistently interpreted the underscored language to exclude uncontained gaseous emissions from the definition of "solid waste." In its final rule concerning the identification and listing of hazardous waste, EPA acknowledged that its "authority to identify or list a waste as hazardous under RCRA is limited to containerized or condensed gases (i.e. section 1004(27) of RCRA excludes all other gases from the definition of solid wastes and thus cannot be considered hazardous waste." 54 Fed. Reg. 50968, 50973 (Dec. 11, 1989). This interpretation is consistent with previously issued guidance on fume incinerators, which are used to destroy gaseous emissions from various industrial processes. 47 Fed. Reg. 27520 (June 24, 1982). In the preamble to this rule, EPA concluded that RCRA is inapplicable to fume incinerators because the input uncontained gas is not a RCRA solid waste. Id. at 27530. See also EPA OSWER Directive 9488.1986(03) (1986) (citing fume incinerator guidance in determining that fume incinerators are not subject to RCRA because the incinerator's input is an uncontained gas and, therefore, not a solid waste).



	Again, in 1986, EPA relied on its interpretation of "solid waste" to determine that carbon canisters saturated with spent solvents are not covered by RCRA because the solvent is in the form of an uncontained vapor. EPA OSWER Directive 9441.1986(54). Even though the solvents, when in liquid form, are listed hazardous wastes, they are not "solid waste" when in vapor form because they are uncontained gaseous material. Id. See also In the Matter of: BP Chemicals America, Inc., Lima, Ohio, 1991 WL 208971, 1-2 (EPA RCRA Appeal No. 89-4, Aug. 20, 1991) (rejecting EPA Region V's argument that hydrogen cyanide vapors were containerized (and, thus, constitute "solid waste") by the "various process units through which it passes by associated piping and by the plant as a whole"); In Re: Chemical Waste Management of Indiana, Inc.,* 1995 WL 523542, 11 (EPA RCRA Appeal No. 95-4, Aug. 23, 1995) ("Thus, a substance in gaseous form is not considered a solid waste under RCRA unless it is containerized."). Thus, EPA has long and consistently interpreted "solid waste" as excluding uncontained* gaseous materials from RCRA's ambit. As discussed at length above, the Chevron doctrine requires a reviewing court to defer to EPA's reasonable interpretation of the statute it administers. FOLHY contends that Acme's mercury emissions are "solid waste." The cases it cites to support this proposition deal with discarded materials that were solid as opposed to gaseous material. See Orchard Lane Road Assoc. v. Pete Lien & Sons, Inc., 34 ERC 1749 (D.Co. Jan. 8, 1992) (small particulate silica dust emission); Conn. Coastal Fishermen's Ass'n. v. Remington Arms Co., 989 F.2d 1305 (2nd Cir. 1993) (lead shot and clay target pieces). They provide no support for FOLHY's contention that uncontained gaseous emissions are a RCRA "solid waste." Acme's emissions are, in fact, gaseous and do not consist of particulate mercury. After implementing MACT requirements, the resulting emission is in the ratio of 50:50 elemental mercury to mercury chloride. No particulate mercury is emitted from Acme's stacks. Under RCRA, hazardous wastes are a subset of solid wastes; a substance first must be classified as a solid waste to be eligible for classification as a hazardous waste. 42 U.S.C. § 6903(5) (RCRA definition of "hazardous waste" as a "solid waste or combination of solid wastes" meeting specified criteria). See also 40 C.F.R. § 261.3 (EPA definition of "hazardous waste" as a "solid waste" satisfying specified criteria); EPA OSWER Directive 9441.1990(01) at 1 ("In order for materials to be hazardous wastes under the RCRA program, and therefore subject to RCRA regulation, they must first be classified as solid wastes."). Because Acme's mercury emissions are excluded from the statutory definition of solid waste, they cannot be considered hazardous waste either. Because Acme is emitting neither solid nor hazardous waste, FOLHY has failed to satisfy a jurisdictional prerequisite for its RCRA citizen suit. Therefore, FOLHY's RCRA claim must be dismissed as a matter of law. B. Acme Is Not "Disposing" of Mercury Emissions Within the Meaning of RCRA Even assuming arguendo that uncontained gaseous emissions constitute solid waste, FOLHY's RCRA claim also fails because Acme is not disposing of mercury emissions within the meaning of RCRA. RCRA section 1004(3) defines "disposal" as: the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3) (emphasis added). As the italicized language provides, disposal covers only placement of solid or hazardous waste onto the land or into the water; it does not include disposal to the ambient air. It is notable that Congress did not include emitting solid or hazardous waste within the RCRA definition of disposal. In contrast, Congress included "emitting" as part of its definition of what constitutes a "release" of hazardous substances under CERCLA. 42 U.S.C. § 9601(22) ("`release' means any spilling, leaking, pumping,



		pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. . . .") (emphasis added). As discussed above, when Congress intended to address emissions into the atmosphere, as it did under the Clean Air Act, it did so by using the word "emission" as opposed to "discharges" to water addressed under the Clean Water Act. When Acme's mercury emissions exit the stack, they are emitted to the air and not "into or on any land or water." For this reason, they are excluded under the section 1004(3) definition of disposal. Acme, therefore, is not "contributing to . . . the disposal of any solid or hazardous waste . . .." 42 U.S.C. § 6972(a)(1)(B). Thus, this court lacks jurisdiction over Acme for purposes of FOLHY's RCRA claim. C. FOLHY Cannot Employ RCRA's Citizen Suit Provision to Collaterally Attack the State of Michigan's Decision to Permit the Operation of Acme's Facility As noted above, MDEQ has issued all necessary air permits that authorize Acme to operate its facility. MDEQ regulates emissions of air pollutants under Part 55 of the NREPA, M.C.L. §§ 324.5501-.5542. Air permits issued by MDEQ contain conditions that assure compliance with Part 55, its rules and the federal Clean Air Act. NREPA section 5505, M.C.L. § 324.5505. Emission rates for mercury are determined pursuant to Rules 224-226, MAC R 336.1224-1226. On a case-by-case basis, MDEQ may determine that the emission rates calculated by Rules 224-226 do not provide adequate protection of human health or the environment. Rule 228 authorizes MDEQ to set a more stringent emission rate based upon consideration of "all relevant scientific information, such as exposure from routes of exposure other than direct inhalation, synergistic or additive effects from other toxic air contaminants, and effects on the environment." MAC R 336.1228. MDEQ conducted such a multipathway risk assessment in this case prior to setting the emission limitations in Acme's permit. Furthermore, MDEQ may deny a permit if it finds that "[i]nstallation, construction, reconstruction, relocation, alteration, or operation of the source presents an imminent and substantial endangerment to human health, safety or welfare or the environment." NREPA section 5510(b), M.C.L. § 324.5510(b). Thus, MDEQ had authority to require emissions limitations sufficiently stringent to protect human health and environment, and to deny an air emissions permit to a source whose operation presents an imminent and substantial endangerment to human health or the environment, M.C.L.§ 324.5510(b). Based on MDEQ's multipathway risk assessment in this case that took into account, not only relevant air emission standards, but also indirect exposure routes and effects on the environment, MDEQ determined in the permit proceeding that Acme's mercury emissions do not present an imminent and substantial endangerment to human health or the environment. By arguing that Acme's emissions do present an imminent and substantial threat to human health or the environment, FOLHY is launching a collateral attack upon MDEQ's permitting process. See Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188, 1192 (6th Cir. 1995) ("allegations [of imminent and substantial endangerment] can[not] reasonably be interpreted as anything other than a collateral attack on Kentucky's hazardous waste permitting process in an effort to enjoin issuance to LWD of an operating permit"); Greenpeace, Inc. v. Waste Technologies Industries, 9 F.3d 1174, 1182 (6th Cir. 1993) (dismissing RCRA citizen suit as impermissible collateral attack on permitting process). FOLHY attempts to distinguish Coalition for Health Concern and Greenpeace on the grounds that the facilities in those cases had obtained RCRA permits whereas Acme has obtained a state air permit. Those cases relied in part upon RCRA section 7002(b)(2)(D), which provides: No action may be commenced under subsection (a)(1)(B) of this section by any person (other than a State or local government) with respect to the siting of a hazardous waste



	treatment, storage, or disposal facility, nor to restrain or enjoin the issuance of a permit for such facility. 42 U.S.C. 6972(b)(2)(D). Moreover, the Sixth Circuit reasoned in Greenpeace that to allow collateral attacks on the permitting process would eviscerate the limited permit appeal process authorized by RCRA section 7006. 9 F.3d at 1181. It concluded that the only means available to challenge a RCRA permit was through section 7006 and that compliance with a RCRA permit precludes Section 7002(a)(1)(B) jurisdiction. Id. at 1181-82. Even if section 7002(b)(2)(D) applies only to RCRA permits, the court's reasoning in Greenpeace applies with equal force to the instant case. As in Greenpeace, where EPA had specifically permitted the conduct at issue, FOLHY's arguments here should have been made in the state permitting process. That requirement is especially compelling in this case, where the State conducted a multipathway risk assessment that took into account pathways of indirect exposure. FOLHY's arguments either were already considered and rejected in the State's air permit proceedings or FOLHY failed to raise them. Where the risks complained of in the Section 7002(a)(1)(B) suit have been addressed by an issued permit, a collateral attack under section 7002(a)(1)(B) should be rejected. Greenpeace, 9 F3d at 1180 ("Citizens may not bring Section 6972(a)(1)(B) suits to challenge permitted activity"). See also Babich, "RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers," 24 ELR 10122 (March 1994) at p. 8 (if courts wish to apply "permit shield" to RCRA imminent hazard actions, the issue should be whether the permit addresses the risks complained of under section 7002(a)(1)(B)). D. FOLHY'S RCRA Claim Must Be Dismissed Because it Has Failed to Demon- strate That Acme's Operations Present an "Imminent and Substantial Endan- germent to Health or the Environment" A claimant under RCRA section 7002(a)(1)(B), 42 U.S.C. 6972(a)(1)(B), must establish: (1) conditions that may present an imminent and substantial endangerment to health or the environment; (2) that the endangerment stems from a RCRA solid or hazardous waste; and (3) that defendant has contributed to or is contributing to the handling, storage, treatment or disposal of such waste which may present an imminent and substantial endangerment. Foster v. United States, 922 F. Supp 642, 661 (D.D.C. 1996) (citation omitted). Section 7002(a)(1)(B) requires more than a showing that a RCRA solid or hazardous waste is present. Id. To qualify as "imminent," an endangerment must "threaten to occur immediately." Meghrig, 516 U.S. at 485. An endangerment is "substantial" if it can be described as so "serious" that "there must be some necessity" for action. Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994); Foster, 922 F. Supp. at 661. Extremely conservative modeling has predicted that Acme's operations will add 9 kilograms of mercury to Lake Hypo annually or less than 3% of the total annual loading. The model further predicts that this loading will increase mercury levels in fish by 0.6% to 3%. Not only are these predicted increases minute, but they are overly conservative, as the model acknowledges. Thus, even the model's conservative prediction more accurately is stated as less than 0.6% to less than 3%. As discussed above, the modeling fails to incorporate the latest scientific information and is not validated by real world data. Even based on the overly conservative predictions of the modeling conducted here, Acme's emissions



		do not amount to an imminent and substantial endangerment. The small increment predicted to come from Acme's emissions cannot be characterized as a substantial endangerment. The potential harm from mercury contributed from all sources, natural and anthropogenic, is chronic, not acute. MDEQ and other regulatory authorities have mitigated that potential risk through the issuance of fish advisories. Indeed, given the variability of mercury concentrations among individual fish of the same species and from season to season, such a small percentage increase (if it actually occurs) could not even be reliably measured. Moreover, FOLHY has not alleged that the increase would change the status quo. Fish advisories would remain in place; no outright ban on consumption would be imposed. In light of the fact that advisories are already in place, Acme's additions prompt no "necessity for action." Price, 39 F.3d at 1019. The potential threat of harm that exists in Lake Hypo and its fish due to the presence of mercury is attributable not to Acme but to background and other sources of mercury. Even if the court were to shut Acme down at substantial cost to the area economy, it would not eliminate the potential risk that necessitates the need for the fish advisories. Furthermore, in conducting the multipathway risk assessment, the State of Michigan has previously determined that the modeled increase in mercury to Lake Hypo and its potential uptake in fish poses no actionable threat of harm. Indeed, in issuing the air permit, the State concluded that Acme's emissions are at acceptable levels. See Price, 818 F. Supp. at 1325 (if level of contaminants are below levels acceptable by State, no imminent and substantial endangerment exists). Thus, even if the model has correctly predicted the increase in mercury due to Acme's operations, such an increase is not "substantial." Accordingly, the court should dismiss FOLHY's RCRA claim. CONCLUSION For the reasons set forth above, the court should enter a judgment for Acme on its cross-motion for summary judgment and dismiss FOLHY's claims. Respectfully submitted, Peter D. Holmes Karen H. Schodowski Attorneys for Defendant Acme Widget Dated: October 13, 1999



	APPENDIX F APPEAL To The Ontario Environmental Appeal Board By The Applicant Acme Widget Limited Submissions On Behalf Of Acme Widget Limited John L. Martin



		INTRODUCTION 1. This appeal is pursuant to Paragraph 139(2)(b) of the Environmental Protection Act, Revised Statutes of Ontario, 1990, Chapter E.19, as amended (the EPA), with respect to the imposition of a condition of approval on Certificate of Approval (Air) No. 8-1234-99-666, issued to Acme Widget Limited (the "Applicant"), dated August 18, 1999, pursuant to Section 9 of the EPA, by Mr. B. Wind, a Director for the purposes of Section 9. 2. Paragraph 139(2)(b) states: "139(2) When the Director, ... (b) imposes terms and conditions in issuing a ... certificate of approval ...; ... the Director shall serve notice together with written reasons therefor upon the applicant ... and the applicant ... may, by written notice served upon the Director and the Board within fifteen days after the service of the notice, require a hearing by the Board." 3. Notice of Appeal on behalf of the Applicant was served on the Director and the Board on August 27, 1999. 4. The condition under appeal states: "The operator shall ensure that the mercury emission rate does not exceed 11 grams per hour." 5. The reason for the imposition of the condition stated by the Director is: "Mercury is a persistent toxic substance that bioaccumulates. The facility is located near Lake Hypo. Mercury will be deposited in the lake from the facility's air emissions. Best available technology can control the emission rate to less than 11 g/hr. It is appropriate to limit the emission rate to protect life in the lake and the health of humans who may consume fish from the lake." 6. A hearing into this matter was held October 12 -14, 1999, before the Environmental Appeal Board (the "Board"). At that time, the Board invited written submissions to be presented to the Board along with oral submissions on October 27, 1999. 7. The facts from the hearing of evidence that are relied on by the Applicant are set out in the following paragraphs followed by a summary of the applicable law and argument. THE FACTS Background 8. The Applicant is a privately held corporation, incorporated pursuant to the laws of Ontario. Its head office is located in Windsor, Ontario. 9. The Applicant intends to construct a manufacturing facility in the Town of Needyville, Ontario, a town of 5,000 persons, near the southeast corner of Lake Hypo on the Hypo River.



	10. The facility, once completed, will employ 300 persons on a full time basis. The plant will manufacture widgets used by the medical community in corrective heart procedures on both children and adults. It will be the only plant in Canada and will guarantee the availability of widgets to the Canadian medical community. At the present time importation of the devices is irregular. 11. Needyville was chosen as the site for the facility because of the incentives offered by the federal and provincial governments to have manufacturing facilities locate in this area of chronic unemployment. 12. The plant is designed to be a state-of-the-art facility. The only hazardous material that is associated with the manufacturing process is mercury. While all efforts are made to capture any mercury not permanently fixed in the product, some mercury is present in the air emissions from the process. Air Emissions From Applicant's Facility 13. As noted by the experienced and professional consulting engineers called on behalf of the Applicant, the air pollution control (APC) technology proposed is the best available control technology economically achievable. It reduces mercury emissions from the facility by approxi- mately 90%, reducing the emission rate from approximately 212 grams per hour to 21.2 grams per hour. The mercury removed by the APC equipment is captured and reused in the manu facturing process. 14. Air emissions from the facility would be released to the environment through a 90 metre (295 foot) stack at the operating characteristics that are set out in the technical brief that was pro- vided to the Board members at the hearing. 15. Based on this information, an application for a Certificate of Approval (Air) (commonly called an "air approval") was made to the Environmental Assessment and Approvals Branch (the "Approvals Branch") of the Ontario Ministry of the Environment (the "MOE") on February 15, 1999. This application was made pursuant to Section 9 of the EPA. 16. As part of that application, the Applicant considered the requirements of Regulation 346, Revised Regulations of Ontario 1990, as amended ("Regulation 346"). Using the air dispersion model that is incorporated into that regulation, the Applicant calculated the half-hour maximum point-of-impingement (MPOI) concentration that was predicted from the operation of the facility. That maximum concentration was determined to be 10 nanograms per cubic metre (ng/m³) or 0.01 micrograms per cubic metre (ug/m³). The legally binding air quality standard for mercury that is contained in Regulation 346 for the half-hour MPOI is 5.0 ug/m³. 17. The Applicant also considered the U.S. Environmental Protection Agency developed Industrial Source Complex Screen3 model. This model was known to be used by the Approvals Branch when considering applications. This model predicted a maximum one-hour average concentration of 17 ng/m³, or 0.017 ug/m³. 18. The MOE has no legal standard with respect to a one-hour MPOI concentration for mercury. Based on the document entitled, "Summary of Point of Impingement Standards, Ambient Air Quality Criteria (AAQC's), and Approvals Screening Levels (ASLS)", prepared by the Standards Development Branch of the MOE, Revised August 1998, there is no AAQC or ASLS for mercury other than a 24 hour AAQC of 2 ug/m³. It is noted that even if the one -hour MPOI predicted by the SCREEN3 model occurred for twenty-four consecutive hours, the concentration would be below 2 ug/m³. 19. It was noted in the evidence that the MOE has no stack emission concentration (as opposed to ambient MPOI concentration) standards, criteria or guidelines for mercury other than Guideline A-7 dealing with new or expanded municipal waste incinerators in the province. Guideline A-7 -



		Combustion and Air Pollution Control Requirements for New Municipal Waste Incinerators, was adopted as MOE policy in 1996. 20. Guideline A-7 contains an emission concentration criteria for mercury of 57 ug/Rm³, where R refers to standard conditions of 25^oC, 101.3 kilopascals and 11% oxygen. The emission concentration from the proposed facility is 0.075 mg/std m³ @ 25^oC and 101.3 kPa and 7% oxygen. As noted by the MOE expert witness, in order to compare these two values, they must be put into the same standard conditions. When the facility emission concentration is converted to micrograms per cubic metre at the same temperature, pressure and an oxygen concentration of 11%, the emission concentration is 53.4 ug/Rm³. This value is comparable to the emission concentration criterion of 57 ug/Rm³ contained in Guideline A-7. 21. It is noted from the evidence of the MOE witness that Guideline A-7 was the subject of significant public consultation prior to it being adopted as MOE policy. From the MOE's discussion of this guideline contained in the Decision Posting on the Ontario Environmental Bill of Rights (EBR) Registry (No. PA5E0023), dated January 2, 1999, it is noted that the emission concentration for mercury of 57 ug/Rm³ was not revised. This implies that the MOE accepted that the best available technology economically achievable could meet this requirement. As noted in the evidence of the Applicant's experts, this same mercury removal technology is being proposed in this application. 22. The estimated emission rate for mercury from the facility is 21.2 grams/hour. This corresponds to an emission concentration of 53.4 ug/Rm³. The limit contained in the Director's condition is 11 grams/hour, or approximately 51.9% of the proposed emission rate. This corresponds to an emission concentration of (51.9% x 53.4) 27.7 ug/Rm³. This concentration in turn is less than half of the emission concentration criterion contained in Guideline A-7. 23. There was contradictory opinion evidence presented by the Applicant's experts and MOE staff regarding whether the 11 grams/hour emission rate limit could be met with proven available technology. There was agreement that the technology proposed by the Applicant could meet an emission rate of 21.2 grams/hour. 24. Based on modelling results, it was predicted that 9 kilograms (kg) of mercury would be added to Lake Hypo annually from the operation of the facility. This prediction was based on several assumptions with respect to meteorological conditions and the form in which the mercury would be present (mercury chloride, particulate mercury or elemental mercury). These assumptions were made conservatively, resulting in overestimates of the amount of mercury deposition to the lake. Mercury Loadings To Lake Hypo From Other Sources 25. Information from MOE witnesses suggest that there is up to 337 kg per year of mercury being added to Lake Hypo at the present time. 328 kg of this amount comes from mercury present in the river water flowing into the lake while the other 9 kg comes from atmospheric deposition from background levels in the air. These are estimates based on conservative assumptions. 26. No evidence was presented by the MOE that indicates how the 328 kg of mercury is getting into the river water in the first place and what steps are being taken to control and reduce mercury discharges into the river. It is noted that the conservative estimate of 9 kg contribution from the proposed facility is less than 2.8% of the mercury being discharged to the lake from the river. Fish Uptake and Consumption Advisories 27. Information was presented through MOE witnesses dealing with mercury transformation into its methylated form - the one of concern since it allegedly is absorbed and has the ability to bioaccumulate through the food web. Reportedly, all of the mercury in fish is in this form.



	28. The U.S. EPA's Mercury Study Report to Congress was also presented by an MOE witness. While information presented in the report indicated that the relationship between an increase in deposition and an increase in fish uptake may be as low as a 10:2 ratio or as high as 1:1, is was clear from the opinions expressed that this relationship requires much more study before reliance can be placed on this information. 29. The evidence shows that an assumption was made by MOE staff that, based on this information, there may be an increase in the mercury levels in fish in Lake Hypo of between 0.6 and 3% from the estimated 9 kg increase in mercury deposition to the lake from the proposed facility of the Applicant. 30. Further evidence was led by the MOE that the Ontario MOE guideline for mercury in fish flesh is <0.45 ppm for unrestricted consumption, restricted consumption for children under age 15 and women of child-bearing age, and no consumption of fish with mercury levels above 1.57 ppm. Again, these are guideline numbers. There are no standards with respect this these issues. 31. These fish consumption guideline values appear to have been set based on reference dose considerations to ensure no adverse health effects to humans, including sensitive sub-populations. It is noted that the estimated intake for an adult Canadian of all forms of mercury via all routes is 0.11 ug/kg.bw/day. This compares to the Agency for Toxic Substances and Disease Registry reference dose of 0.3 ug/kg.bw/day and the World Health Organization tolerable daily intake of 0.47 ug/kg.bw/day. Of this amount, fish consumption contributes 27%, or 0.029 ug/kg.bw/day. 32. If one accepts the assumptions made by the MOE witnesses, an increase in the mercury levels currently found in fish in Lake Hypo of between 0.6% and 3% may result from the Applicant's proposed facility. Based on the information placed before the Board, this could increase the contribution to the human consumer of, at most 3% of 0.029 ug/kg.bw/day, or 0.00087 ug/kg.bw/day. This in turn would increase the total mercury intake by less than 1 % (0.00087100%/0.11). THE LAW* The Applicable Legislation 33. Subsection 9(1) of the EPA states: "9(1) No person shall, except under and in accordance with a certificate of approval issued by the Director, (a) construct ... any plant, ... equipment, ... or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; ..." 34. It is admitted that the facility to be constructed will contain equipment from which mercury will be discharged into the open air. The "natural environment", as defined in Section 1 of the EPA includes open air that is not contained in a building, structure, machine, chimney, stack or flue. Therefore, Section 9 applies. Recognizing this fact, the Applicant made the requisite application. 35. It is noted that Section 9 does not apply, and no approval is required under Section 9, for discharges to water. 36. Subsection 9(4) applies to the application of the Applicant. It states: "9(4) The Director may refuse to issue a certificate of approval or may issue a certificate of approval on such terms and conditions as the Director considers necessary,



		(a) to ensure that any construction, ... use or operation of a plant, ... equipment, ... or thing referred to in clause (1)(a) ...will result in compliance with the Act and the regulations and any order or approval hereunder; or (b) on probable grounds, to prevent or alleviate an adverse effect." 37. This subsection sets out the authority and power of the Director to refuse to issue an approval or to impose terms and conditions on a certificate of approval that the Director issues. The Director has no jurisdiction to deal with the issuances of certificates of approval other than as provided in Subsections 9(1) and (4). 38. It is noted that, if the application conforms with the requirements of Subsection 9(4), that is, the plant will be in compliance with the EPA and the regulations and that, based on probable grounds, no adverse effect is expected, the Director must issue the certificate of approval. 39. "Adverse effect" is defined in Section 1 of the EPA as follows: "1(1) In this Act, `adverse effect' means one or more of, (a) impairment of the quality of the natural environment for any use that can be made of it, (b) injury or damage to property or to plant or animal life, (c) harm or material discomfort to any person, (d) an adverse effect on the health of any person, (e) impairment of the safety of any person, (f) rendering any property or plant or animal life unfit for human use, (g) loss of enjoyment of normal use of property, and (h) interference with the normal conduct of business;" 40. It is further noted that the Director can only refuse an approval or impose a condition on an approval where the Director considers it necessary to prevent or alleviate an adverse effect and there are probable grounds for the Director's belief. 41. Regulation 346 is promulgated pursuant to the EPA. It is entitled, "GENERAL - AIR POLLUTION. 42. Section 5 of Regulation 346 states: "5(1) The maximum concentration of a contaminant set out in Column 1 of Schedule 1 at a point of impingement from a source of contaminant, other than a motor vehicle, shall not be greater than the concentration set out opposite thereto in column 3 of Schedule 1, expressed in the unit of concentration set out opposite thereto in Column 2 of Schedule 1. (2) The concentration of a contaminant as a point of impingement may be calculated in accordance with the Appendix. (3) No person shall cause or permit the concentration of a contaminant at a point of impingement to exceed the standard prescribed in Schedule 1." 43. Schedule 1 currently lists 87 contaminants and sets out the maximum concentration limit allowed at a point of impingement over a one-half hour averaging period for them. 44. Mercury is listed as Item 52. The concentration of mercury in total micrograms of mercury in free and combined form per cubic metre of air over the half hour averaging period is 5.0.



	45. The Appendix referred to in Subsection 5(2) contains air dispersion models that may be used to calculate the concentration of a contaminant at a point of impingement for comparison with the limits contained in Schedule 1 to the regulation. ARGUMENT RELATED TO GROUNDS OF APPEAL A ISSUE The Director Has No Legal Authority To Impose The Condition 46. The Director is part of an administative legislative scheme to regulate and control discharges of contaminants into the air of the Province of Ontario. As such, the Director has no more authority to so regulate and control these discharges than has been given to the position by the legislation. That authority, and therefore the jurisdiction, is set out in Subsections 9(1) and (4) of the EPA. That authority and jurisdiction specifically does not include the discharge of contaminants into water as stated in Subsection 9(1). 47. As implied in Subsection 9(1), a person does not require an air approval for discharges into water. 48. Therefore, the Director has no jurisdiction under Section 9 of the EPA with respect to discharges to water. That being the case, the Director has no authority under Subsection 9(4) of the EPA to impose a condition on an air approval where the purpose of the condition is to control the discharge of a contaminant into water. 49. In the reasons given by the Director for the imposition of the condition (see Paragraph 5), the Director clearly states that condition is to control the deposit of mercury into Lake Hypo from the facility's air emissions. The Director does not have the jurisdiction or authority to impose this condition. 50. It would appear that there is a gap in the legislation if the Legislature intended to allow the Director to deal with deposition of air contaminants into water bodies. It is noted that the legislation dealing with approval of contaminant discharges to water (the Ontario Water Resources Act, Revised Statutes of Ontario 1990, Chapter O.40, as amended, ("OWRA")) deals with discharges of sewage into water where the related air discharge to the subject matter of this appeal would not fit the definition of sewage that is contained in the OWRA. (The definition states, "sewage" includes drainage, storm water, commercial wastes and industrial wastes and such other matter or substance as is specified by regulations ...") 51. It is up to the Legislature to correct this gap if that is its intent. The words are clear in Section 9 that no approval is required if the discharge is to water. 52. It is clear that the Director has no authority to impose the condition limiting the mercury emission from the proposed facility for the reasons that the Director has stated. Therefore, this Board should revoke the condition allowing the approval to stand without it. 53. It is noted that the Applicant has committed to the inclusion of a state-of-the-art air pollution control system for mercury that is proven to be capable of reducing mercury emissions from the facility to 21.2 grams per hour. For greater certainty, the Applicant agrees that the Board impose a condition that would state that: "The operator shall ensure that the mercury emission rate does not exceed 21.2 grams per hour." 54. If the Board does not agree with the interpretation of this legislation as submitted here and believes that the Director does have the jurisdiction to impose the condition, the following issues and argument are presented in the alternative.



		B ISSUE The Applicant's Proposal Meets All Legal Requirements of the EPA and Regulation 346 55. As noted in Subsection 9(4) (see Paragraph 36 herein), the Director has the authority to impose a condition on an approval if it is considered necessary to ensure that the operation of the plant will comply with the Act and regulations. 56. As noted in Paragraph 16, The Applicant calculated the one-half hour point of impingement concentration using the air dispersion model set out in Regulation 346. Comparison of that calculated value and the requirement in the regulation shows that the maximum mercury concentration will be 0.01 ug/m³. This is one five hundredth of the maximum allowable concentration of 5.0 ug/m³ under the regulation. 57. The Board is reminded of the testimony of the MOE witness dealing with the setting of standards. The standards are established to protect human health, damage to flora and fauna, property damage and nuisance. Based on this testimony and supporting MOE document set out at Paragraph 18, this mercury standard was set on the basis of human health considerations. 58. Clearly the Applicant's proposed facility meets this requirement. It is the only legally binding standard for mercury that applies to this application. 59. The Applicant also used the SCREEN3 air dispersion model as part of the application. It showed that the one hour maximum concentration was 0.017 ug/m³. Using a very conservative assumption that this one hour concentration would take place for 24 consecutive hours, it was noted that the MOE's AAQC for mercury for a 24 hour period of 2 ug/m³ would also be met by a factor of over one eight-hundredth. This AAQC was also set based on human health considerations. While not a legally binding standard, comparison to it does show that there is no compliance issue in this application. 60. The Applicant also compared its stack emission concentration to that contained in the MOE's Guideline A-7 (see paragraphs 19-22). While this guideline applies to new or expanded waste incinerators and not to the Applicant's proposal, the guideline gives the only stack emission rate criterion for mercury published by the MOE. It is also a current guideline that was the subject of much public consultation, including an EBR registry public comment exercise. 61. The Applicant's proposal would meet the stack emission concentration of 57 ug/Rm³ contained in the guideline. 62. It is noted that the Director's proposed limit of 27.7 ug/Rm³ (equivalent to 11 grams per hour) is almost half the concentration that is allowed under Guideline A-7. 63. Based on this information, the Director has no grounds to impose the condition due to any concern regarding compliance with the EPA and the regulations as stated in clause 9(4)(a) of the EPA. C ISSUE Probable Grounds, To Prevent or Alleviate An Adverse Effect 64. If the Director has the authority to impose the condition, it must come from the Director considering it necessary to impose the condition to prevent or alleviate an adverse effect. Not only must the Director consider it necessary, but their must be probable grounds to support the Director's position. 65. It is noted that the wording of the section states "probable grounds", not "possible grounds". It is submitted that the Director must have sufficient evidence to show that an adverse effect is probable, as opposed to possible, before the condition can be imposed.



	66. It is the Applicant's position that the Director made a number of assumptions that are not supported by the information that was available. These assumptions had an accumulative effect which resulted in the Director imposing the condition without probable grounds of an adverse effect from the Applicant's emissions. 67. The Director has given reasons for the imposition of the condition. They are set out as follows: (a) "Mercury is a persistent toxic substance that bioaccumulates". The Applicant does not challenge this statement. There is proven science to support it to a satisfactory degree. (b) "The facility is located near Lake Hypo". The Applicant agrees. (c) "Mercury will be deposited in the lake from the facility's air emissions." This will be discussed further below. (d) "It is appropriate to limit the emission rate to protect life in the lake and the health of humans who may consume fish from the lake." The Applicant disagrees that there are probable grounds to link the emissions from the plant to increases in mercury levels in the fish as discussed below. (e) "Best avaliable technology can control the emission rate to less than 11 g/hr." The Appli- cant disagrees with this assumption as not supported by the evidence as discussed below. (i) Link Between Applicant's Mercury Emissions And The Mercury Levels In Lake Hypo 68. It was admitted in evidence that the prediction of the deposit of 9 kg of mercury into Lake Hypo from the facility was based on several assumptions dealing with the model, meteorological conditions and the form in which the mercury would be present. In the assumptions, the uncertainty was always resolved in favour of overestimating the amount of deposition. While it is conceded that some mercury would be deposited annually into Lake Hypo from the facility operation, the level of confidence in the 9 kg is low. All that can be said for certain is that it would not be more than 9 kg. 69. This point becomes important because of how this value is used. If, in fact, this value is overestimated by 50%, (i.e., the deposition rate is 4.5 kg/yr), it is implied that the emission rate of 21.2 grams/hr predicted by the Applicant would be acceptable to the Director, based on all of the other assumptions continuing to be accepted. (ii) Link Between Deposition from the Facility and Levels in the Lake 70. If the addition of 9 kg of mercury to Lake Hypo was of such a concern to the Director to give probable grounds of an adverse effect, it was surprising that no evidence was led by the MOE to show what, if anything, was being done to control the 328 kg of mercury entering the lake through the Inlet River. Point sources of mercury discharges should be known to the MOE through the Municipal / Industrial Strategy for Abatement ("MISA") program. If an increase in mercury levels of less than 2.8% was probable grounds for concern, it would be expected that the MOE could point to continuing efforts and results in reducing the mercury input into the lake from these water discharges that account for over 97% of the mercury in the lake. 71. The evidence noted that the mercury concentration in the water column of the lake and the Inlet River was 2 ng/l. This is below the current recommended human health criterion of the U.S. EPA of 2.9 ng/l. It is of note that this value was set after the Great Lakes Water Quality Initiative value of 1.8 ng/l was published in 1995. It is further noted that an increase of less than 2.8 % in this concentration is still well below the current 2.9 ng/l criterion. 72. It is also noted that studies of health effects continue. This brings into question the reliability and



		level of confidence in the present data. This in turn raises questions with respect to the amount of "conservativeness" that gets built into these criteria to ensure too low a value is not used. For example, an increase of over 60% in the human health criterion is seen between the GLI criterion of 1995 and the U.S. EPA criterion of 1999. When we are trying to deal with a potential for an increase of less than 3%, one must consider whether the state of the science can give any definitive answers to such a small change. Once again, the Director has no probable grounds upon which to base the imposition of the condition from this information. (iii) Link From Plant's Emissions to Protection of Humans Who May Consume Fish From The Lake 73. If all of the evidence that was presented to the Board was accepted at face value, it appears that mercury levels in fish in the lake would increase by somewhere between 0.6 and 3% because of the addition of 9 kg annually from the proposed facility. 74. Based on the cross-examination of MOE witnesses, it was shown that the prediction of the transformation of mercury into methyl mercury, the form of greatest threat to health, in the environment is as much art as science. It was readily conceded that more study is needed and that there is a wide variance in results from study to study. Again, conservative estimates are used, resulting in overprediction. 75. Similarly, the models used to predict the relationship between change in mercury deposition to the water and mercury concentration in fish require further study. Studies to date appear to show the relationship somewhere between 1:1/5 and 1:1. No one can say with any scientific certainty what the actual relationship is. Remember, the overly conservative estimate of deposition is 9 kg/year or less than 3% of the annual load to the lake. If these studies are to be used, this could result in an increase in fish concentrations of less that 0.6% to 3% of parts per million. It is submitted that these levels could not be distinquished from normal variations in background levels. 76. When we then take these overpredicted values and apply them to intake in humans, another layer of overprediction is included to make up for the lack of scientific certainty in the establishment of the reference dose used to set a minimum risk level. (iv) Proven Best Available Control Technology Economically Achievable 77. The Applicant is a supplier to the health care sector and is mindful of human health issues. Its track record has shown that it is a forerunner in meeting, and more than meeting, its environmental responsibilities. 78. In designing this facility and the mercury control system for its air emissions, it hired experts in the engineering field with instructions to include the best removal technology that was proven and available. Economics was a factor but only so far as it would allow the plant to be able to function and make a reasonable return to shareholders. 79. The technology proposed by the applicant is state-of-the-art and is proven. The technology put forward by the MOE as an example of one that could meet the 11 gram/ hour emission concentration was still in the experimental stages. The MOE could not point this Board to one installation of comparable application where it was being used. It is not proven technology at this time. 80. The Board is reminded that Subsection 9(5) of the EPA allows the Director to alter any terms and conditions in a certficate of approval or add new ones as the Director considers necessary for the same reasons that are set out in Subsection 9(4). Therefore, if in the future, a technology is proven that is able to reduce mercury emissions below that proposed (21.2 grams/hour), the Director has the legal ability to amend the proposed condition.



	CONCLUSIONS 81. Overpredictions in mercury concentrations or loadings are included in the science to make up for a lack in scientific certainty with respect to; the assumptions input into the air dispersion models and the model algorithms, the link between deposition and uptake in the water; the link between the level in the water and the uptake by the fish; the link between the level in the fish and the uptake by humans; and the determination of the reference dose used to set the minimum risk level for human consumption. 82. Based on the evidence that was before the Director and that is before this Board, there are no probable grounds to support the condition that the mercury emissions from the Applicant's facility should be reduced from 21.2 grams/hour to 11 grams/hour. While the evidence shows that mercury is a substance that must be dealt with carefully, there is no substantiated evidence that the reduction sought will alleviate or prevent an adverse effect. 83. Reduction of mercury emissions to the environment is a laudable goal. However, reductions can only be based on proven contol technologies and substantiated scientific conclusions. The Applicant has based its application and the control technology chosen on these principles. RECOMMENDATIONS 84. That this Board find that the Director was without jurisdiction to impose the subject condition on this air approval as it deals with a discharge to water, something that is specifically excluded from Section 9 of the EPA. 85. IN THE ALTERNATIVE, that this Board revoke the condition of the Director in that there are no probable grounds to support it. The Applicant has committed to installing and operating control technology that would limit the stack emission concentration to 21.2 grams/hour. This would constitute a term of the approval. For greater certainty, the Applicant invites the Board to clarify this point by highlighting it as a condition on the face of the approval. All respectively submitted on behalf of the Applicant, Acme Widget Limited Dated this 20th day of October, 1999 John L. Martin Counsel For the Applicant Miller Thomson LLP Barristers & Solicitors 60 Columbia Way, Suite 600 Markham, Ontario L3R 0C9 (905) 415-6793 Fax (905) 415-6777 E-Mail: jmartin@millerthomson.ca



	APPENDIX G IN A HEARING BEFORE THE ONTARIO ENVIRONMENTAL APPEAL BOARD BETWEEN: ACME WIDGET LIMITED Appellant - and - ONTARIO (MINISTRY OF ENVIRONMENT) Respondent - and - FRIENDS OF LAKE HYPO Intervenor __________________________________ Ontario Ministry of the Environment The Director's Submissions __________________________________ Pat Moran Counsel for the Director 10^th floor, 135 St. Clair Ave. West Toronto ON M4V 1P5



		1. Acme Widget Limited, the applicant in this matter is a manufacturer that wants to build a plant near Lake Hypo. The site is upwind of the lake in relation to the prevailing wind. The manufacturing process used by Acme leads to a discharge to the air of various contaminants, including mercury. As a result, Acme is required to apply for a certificate of approval under section 9 of the Environmental Protection Act. 2. The Director received an application from Acme. Following a public notice period, during which the Director received several submissions, the Director finalized the technical review of the application and issued a certificate of approval to Acme. The approval includes maximum emission rates for several contaminants, including mercury. In addition, Acme, as a new source of air emissions, is required to carry out an emission inventory, as required by current Ministry policy. 3. Upon receipt of the approval, Acme appealed the mercury emission limit imposed by the Director, which is set out as follows: The operator shall ensure that the mercury emission rate does not exceed 11 grams per hour. 4. The Director's stated reason for imposing this condition was: The reason for imposing condition one is that mercury is a persistent toxic substance that bio-accumulates. The facility is located near Lake Hypo. Mercury will be deposited in the lake from the facility's air emissions. Best available technology can control the emission rate to less than 11/g per hour. It is appropriate to limit the emission rate to protect life in the lake and the health of humans who may consume fish from the lake. 5. Acme seeks to have the emission limit made less stringent on the following grounds: The Director has no legal authority to impose the condition. In the alternative, there is no reasonable link to mercury emissions from the company's plant to the levels in Lake Hypo. There is no technology that is economically achievable that can be used to meet the required emission rate. There is no reasonable link to mercury emissions from the company's plant causing any environmental impact in Lake Hypo. The company's technology is the best available and meets the legal requirements of Regulation 346 and any guidelines or criteria that the Ministry currently employs. 6. Due to other nearby sources of pollution, including transboundary pollution, Lake Hypo currently has a concentration of 2 ng/L of mercury in the water column at any given time. This is above the criterion used by the USEPA under the Great Lakes Water Quality Initiative to protect wildlife (1.3 ng/L) and is close to the criterion used to protect human health (2.9 ng/L). 7. There are several facilities in the vicinity that currently emit mercury and there are several proposed facilities that would also emit mercury. 8. Mercury has different properties depending on its form. It has been determined that the mercury emission from Acme's plant would be 50 percent elemental mercury and 50 percent mercury chloride. 9. Because Acme's site is upwind of the lake and because the plume from Acme's stack comes into contact with the water surface, mercury from Acme will be deposited in the lake. Acme will be contributing to the mercury loading in the lake. Currently, atomospheric deposition accounts for 9 kg of mercury per year into Lake Hypo. Acme would add another 9 kg per year. 10. Once deposited in the lake, the different forms of mercury are capable of undergoing chemical reactions to convert to other types of mercury. The form of most concern to human and environ



	mental health is methyl mercury. It has been agreed that all forms of mercury undergo methylation in the lake at the same rate. Since methyl mercury is absorbed by and bio-accumulates in fish, the increase in mercury deposition to Lake Hypo from the Acme Widget plant will result in an increase in the concentration of mercury in fish. 11. Most human exposure to mercury is due to methyl mercury in food, particularly fish. Certain populations, such as Aboriginal people and other subsistence fishers, are at higher risk of exposure to methyl mercury, because of their greater reliance on fish as food. In addition, the particular sensitivity of the human fetus to mercury has led experts in both Canada and the United States to severely restrict the consumption of fish containing mercury in pregnant women, women of childbearing age and children. 12. Although some uncertainty exists with respect to mercury's behaviour in the environment and the factors affecting absorption in humans, there are volumes of evidence documenting the effects of mercury on humans and other animals. Exposure to mercury causes adverse effects on the nervous system, especially on sensory-motor function, and on reproduction in humans and many species of wildlife. It has been found to be particularly harmful both to the embryos of animals and fish and to the human fetus, causing permanent developmental deficits (including reduced cognitive and motor ability) and behavioural changes. These effects can occur at very low doses, where the mother shows no or only mild symptoms. 13. The USEPA has set the reference dose for exposure to mercury, that is, the daily dose over a lifetime at which no adverse effects are expected to occur, at 0.1 µg/kg of body weight per day. 14. Because of mercury's persistence in the environment, the fact that it bio-accumulates, and its devastating human and environmental effects at very low chronic doses, governments around the world, including Ontario, have targeted industrial emissions of mercury for elimination. For example, the Commission for Environmental Cooperation has adopted the North American Regional Action Plan for Mercury, which sets as its goal the prevention or minimization of "anthropogenic inputs of mercury to the environment." This includes two specific objectives: (a) ambient levels of mercury should approach natural background levels; and (b) human releases of mercury should be reduced until naturally occurring levels are achieved. This Action Plan was approved by the Commission's governing Council of Ministers, of which both Canada and the US are members. 15. In addition, the International Joint Commission has identified mercury as one of 11 critical pollutants which are persistent, toxic and which bioaccumulate. These have been targeted for virtual elimination under the terms of the Great Lakes Water Quality Agreement. According to Annex 12 of the Agreement, all regulatory strategies dealing with these pollutants are to be undertaken with the "philosophy of zero discharge." 16. Canada and Ontario have committed themselves to accomplishing this phase out within the Great Lakes Basin ecosystem. The Great Lakes Binational Toxics Strategy was adopted by Canada and the U.S. to guide them in accomplishing the "unfinished business" of virtually eliminating persistent toxic substances from the Basin, as required by the Great Lakes Water Quality Agreement. The strategy contains a commitment by Canada to reduce mercury emissions from human sources in the Basin by 90% by the year 2000. As part of the 1994 Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem, Ontario and Canada agree to reduce the use, generation or release of mercury (and other specified priority substances) by 90% by the year 2000. 17. This is consistent with Ontario's Municipal-Industrial Strategy for Abatement of discharges to water (MISA). While that program is a comprehensive set of regulations aimed at phasing out direct



		discharges to water by municipalities and industry, it would be difficult to argue, as Acme attempts to do, that the Director ought not to be trying to control indirect discharges to water via air transport. 18. Canada and Ontario are also participating through the Canadian Council of Ministers of the Environment in the development of national standards. Mercury was chosen as a priority substance for immediate action in setting standards because of concerns that mercury levels in fish across Canada exceed levels now considered safe for human consumption and concerns that some wildlife populations may be at risk. The Regulatory Framework 19. The purpose of the Act, as set out in section 3, is to provide for the protection and conservation of the natural environment. 20. "Natural environment" is defined, in section 1, as "the air, land and water, or any combination or part thereof, of the Province of Ontario." 21. Section 9 of the Act provides as follows: 9. (1) No person shall, except under and in accordance with a certificate of approval issued by the Director, (a) construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; or (b) alter a process or rate of production with the result that a contaminant may be discharged into any part of the natural environment other than water or the rate or manner of discharge of a contaminant into any part of the natural environment other than water may be altered. 9. (2) The Director may require an applicant for a certificate of approval under subsection (1) to submit any plans, specifications and other information and to carry out and report on any tests or experiments relating to the plant, structure, equipment, apparatus, mechanism or thing or to the methods and devices to be employed to control or prevent the discharge of any contaminant into any part of the natural environment other than water and, subject to subsection (4), the Director may issue a certificate of approval. 9. (3) ... 9. (4) The Director may refuse to issue a certificate of approval or may issue a certificate of approval on such terms and conditions as the Director considers necessary, (a) to ensure that any construction, alteration, extension, replacement, use or operation of a plant, structure, equipment, apparatus, mechanism or thing referred to in clause (1) (a) or that any alteration of a process or rate of production referred to in clause (1) (b) will result in compliance with this Act and the regulations and any order or approval hereunder; or (b) on probable grounds, to prevent or alleviate an adverse effect. 9. (5) The Director may, (a) alter any terms and conditions in a certificate of approval or impose new terms and conditions; or



	(b) revoke or suspend a certificate of approval, as the Director considers necessary for the reasons set out in clause (4) (a) or (b). 9. (6) A person to whom the Director has issued a certificate of approval under subsection (1) may make any changes in respect of which it is impractical to first obtain an amendment to the certificate if, (a) the changes are not capable of increasing the potential for discharge of a contami- nant into the natural environment; and (b) the Director is notified in writing forthwith of the changes. 9. (7) No person shall use or operate a plant, structure, equipment, apparatus, mechanism or thing for which a certificate of approval is required under clause (1) (a) unless the required certificate of approval has been issued and complied with. 22. "Adverse effect" is defined by section 1 of the Act to mean one or more of, (a) impairment of the quality of the natural environment for any use that can be made of it, (b) injury or damage to property or to plant or animal life, (c) harm or material discomfort to any person, (d) an adverse effect on the health of any person, (e) impairment of the safety of any person, (f) rendering any property or plant or animal life unfit for human use, (g) loss of enjoyment of normal use of property, and (h) interference with the normal conduct of business. 23. In addition, Regulation 346 imposes maximum point of impingement limits for various contaminants, including mercury. Issues raised by this appeal 24. Acme raises the following issues: (a) Does the Director have legal authority to impose the mercury emission limit; (b) Does Acme's proposal meet all legal requirements of the Act and Regulation 346; and (c) Does the Director have probable grounds for imposing the mercury emission limit to prevent or alleviate an adverse effect. Issue (a) Does the Director have legal authority to impose the mercury emission limit? 25. The Director's position is that a purposive approach to interpreting and applying the Act to the current case provides clear jurisdiction for imposing the mercury emission limit.



		26. Acme argues that because section 9 require a certificate of approval for anything that may discharge a contaminant into "any part of the natural environment other than water" that the Director has no jurisdiction to impose the mercury emission limit because it appears to be aimed at dealing with the discharge of mercury into Lake Hypo. This argument can only succeed if the Board accepts it in the same absence of context in which it is presented by Acme. Section 9 of the Act is just part of the legislative scheme of environmental protection in Ontario. Under this Act and others such as the Ontario Water Resources Act, there is provision for many kinds of approvals. Section 9 of the Act deals with discharges into the air while discharges into the water are dealt with under the Ontario Water Resources Act. In the present case we are dealing with a direct discharge into the air, and on that basis, that discharge is properly dealt with under section 9 of the Act. To put in concrete terms, Acme is discharging mercury through its stack into the air. If Acme was discharging mercury directly into the lake from an effluent pipe, then Acme would be quite correct to say that the Director cannot regulate that discharge under section 9. Instead, that discharge would be regulated under the Ontario Water Resources Act. 27. However, it is clear that since the mercury is being discharged directly into the air by Acme, the Director has the jurisdiction to deal with that discharge under section 9. Specifically, the Director has the jurisdiction to impose conditions on the approval that are considered necessary on probable grounds to prevent or alleviate an adverse effect. A purposive interpretation of this jurisdiction leads to the conclusion that the Director is permitted to deal with adverse effects due to the presence of a contaminant in the air. Since the air is part of the ecosystem, it is clear that whatever is in the air can affect other parts of the ecosystem. Water is also part of the ecosystem. If contaminants in the air affect water to the extent of causing an adverse effect, then a purposive application of section 9 leads to a finding that the Director has jurisdiction to control or prevent the entry of that contaminant into the air in the first place. 28. Adverse effect is a defined term in the Act. For example, adverse effect includes "an adverse effect on the health of any person." If Acme discharges mercury into the air and that mercury is subsequently deposited in the lake where it becomes transformed into methyl mercury, which is then taken up by fish which are caught by people and used for food, and those people become sick as a result, it becomes very difficult to understand, based on Acme's argument, why the Director would not be entitled to impose an emission limit on mercury in order to prevent that health effect. The point is that the Director is not controlling a discharge into water. Rather the Director is controlling a discharge into the air because at some point, that discharge can impair human health. It makes little difference how that impairment comes about. It just happens that in this particular case it occurs because at some point the air discharge leads to a deposition of mercury in the lake. Acme's argument simply ignores ecological reality. 29. Therefore, it is submitted that the Director has clear jurisdiction, on a purposive interpretation of the statute, to impose a mercury emission limit. Issue (b) Does Acme's proposal meet all legal requirements of the Act and Regulation 346? 28. The Director's position is that is not sufficient for Acme to demonstrate that its emissions, when modeled, meet the maximum point of impingement standard for mercury, as set out under Regulation 346. Regulation 346 contains a mathematical model which predicts the concentration of a contaminant at any point of impingement, from the source of that contaminant. The model does not take into account the existence of other sources of that contaminant, nor does it take into account the existing ambient concentration for that contaminant. However, in the real world, there is typically an existing ambient concentration of mercury because there are other existing sources of mercury. These factors must be taken into account by the Director. It is not enough for the Director to rely solely on the modeling exercise, as carried out by Acme. The real issue is what additional load of mercury is being added to the air and subsequently the water, as a result of Acme's emissions.



	29. Furthermore, the Director's concern is not related to the direct effect of mercury in the air on human health. What the Director is concerned about is the fact that Acme is emitting sufficient mercury into the air so that a significant amount is deposited into Lake Hypo where it can bio-accumulate in fish that are used for food by people. Acme's ability to demonstrate that it can comply with maximum point of impingement standards does not really address this problem. The real issue for the Director is the fact that Acme is going to contribute up to 9 kilograms of mercury per year to Lake Hypo. This is equal to the current amount of atmospheric deposition of mercury from all other sources. In effect, Acme would double the loading of mercury into Lake Hypo through atmospheric deposition. 30. Regardless of whether Acme can meet the maximum point of impingement standard, the Director is still required to ensure that appropriate conditions are imposed on the approval to alleviate adverse effects due to mercury. The Director is obligated to impose such conditions, even if those conditions would mean that Acme would be well below the maximum point of impingement standard for mercury. Issue (c) Does the Director have probable grounds for imposing the mercury emission limit to prevent or alleviate an adverse effect? 31. The Director's position is that there is a clear basis for imposing the mercury emission limit in order to prevent the potential for an adverse effect on the health of those people who rely on fish from Lake Hypo for food. 32. The starting point for Acme's allegation that there are no probable grounds to support the imposition of the mercury emission limit is its reference to the 328 kilograms of mercury per year entering the lake through the Inlet River. Acme's argument is akin to the argument by the speeder to the police officer to the effect that "you can't stop me for speeding because those other guys are speeding too." While there may be other sources of mercury upstream of Lake Hypo, those sources, to the extent that they are discharging effluent containing mercury into the inlet river, are subject to the MISA program. The specific regulations that apply to those sources have been filed with the Board. In addition, the Board has heard evidence about how the MISA program is being implemented. As a result of the MISA program, mercury is being reduced in effluent from industry and municipalities. In the present case, the Director is dealing with Acme's air emissions, which will lead to a significant increase of mercury in the Lake Hypo airshed. While the Ministry is working to reduce all emissions of mercury into Lake Hypo, through the MISA program as well as in section 9 approvals, Acme seeks to convince the Board that it should be permitted to increase total emissions of mercury to the air and contribute to an increased loading of mercury into Lake Hypo. 33. Acme then goes on to discuss, in neutral terms, the health issue. What Acme's discussion leaves out is the fact that there is a particularly sensitive group of people who rely on fish from Lake Hypo for food. The aboriginal population eats a significantly larger amount of fish than the average population. What is clear from the evidence is the fact that the health criteria are based on the average population and not on groups such as the aboriginals who fish in Lake Hypo. Acme's claim that the numbers are conservative pales in this context. 34. Finally, Acme argues that it is using best available technology economically available to reduce mercury emissions. This argument is based on the proposition that all that Acme needs to do is to examine what is coming out of the stack and then figure out how to reduce the level of mercury. What Acme has failed to do is examine its entire process from beginning to end to see what process improvements could be made that would lead to reductions in the amount of mercury emitted before being treated by Acme's proposed pollution control equipment. Since mercury is coming out of Acme's process, it must be getting into Acme's process. This leads to the proposition that there are two points to control mercury. One point is at the stack, which is what Acme has looked at. The other point is where the mercury gets into the process, which Acme has failed to look at.



		Conclusion 35. When the Director imposed the mercury emission limit in Acme's certificate of approval, the Director did so with clear legal authority under section 9 of the Act. The Director imposed that limit in order to reduce the amount of mercury from Acme's process that would end up in the air, where it could get into Lake Hypo, where it poses a danger to the health of those people who fish for food in Lake Hypo. The scientific evidence and the thrust of regulatory action in relation to mercury all point to the need to reduce the discharge of mercury to zero. The imposition of this mercury emission limit is an important step toward that important goal. 36. Therefore, the Director respectfully asks that the Board dismiss Acme's appeal and uphold the certificate of approval as issued by the Director.



	APPENDIX H IN A HEARING BEFORE THE ONTARIO ENVIRONMENTAL APPEAL BOARD BETWEEN: ACME WIDGET LIMITED Appellant - and - ONTARIO (MINISTRY OF ENVIRONMENT) Respondent - and - FRIENDS OF LAKE HYPO Intervenor __________________________________ INTERVENOR'S FACTUM __________________________________ Paul Muldoon Marcia Valiante Laura Shaw Toshi Takishita Solicitors for the Intervenor 401 Sunset Avenue Windsor, Ontario N9B 3P4 Solicitors for Friends of Lake Hypo



		TABLE OF CONTENTS INTRODUCTION 161 PART I Facts 161 PART II Points in Issue 164 PART III Intervenor's Arguments on the Points in Issue 164 1. Does the Director have jurisdiction to impose the proposed condition as granted in the certificate of approval? 164 (a) Can the Director impose a section 9 approval to protect both air and water resources? 164 (b) Can the Director impose a condition more stringent than the Regulations? 166 2. Has the Director met the statutory requirements for exercise of that jurisdiction? 167 (a) Standard of Proof 167 (b) Adverse Effect 167 3. Does the Board have jurisdiction and grounds for imposing a condition requiring zero discharge of mercury? 168 (a) General 168 (b) Precautionary Principle 169 PART IV Nature Of Order Desired 172



	INTRODUCTION 1. The appellant is seeking to have a condition imposed by the Director revoked because it is more stringent than the requirements found in the current environmental protection regulation. The Respondent Director is asking the Board to uphold the imposition of the condition. The Intervenor, Friends of Lake Hypo, submits that, given the toxicity of mercury the pollutant, its permanency in the environment, its ability to bio-accumulate in the food chain and adversely affect human health, the Board should modify the condition and impose a zero discharge standard. PART I FACTS 2. Friends of Lake Hypo is a non-profit, environmental organization founded in 1970, with 10,000 supporters in the Windsor/Needyville area. Since 1970, Friends of Lake Hypo has been actively involved in advocating for the clean up of Lake Hypo and the surrounding ecosystem by identifying sources of contamination and working with governments and industry in cleanup efforts. The Friends of Lake Hypo works closely with the Hypo First Nation, an aboriginal band located at the delta of the Hypo River as it enters Lake Hypo. This aboriginal community of 1250 people is heavily dependent on fish from the lake and wildlife in the adjacent lands for their subsistence. 3. Due to other surrounding sources of pollution and including transboundary pollution, Lake Hypo currently has a concentration of 2 ng/L of mercury in the water column at any given time. This is above the criterion used by the US Environmental Protection Agency under the Great Lakes Water Quality Initiative to protect wildlife (1.3 ng/L) and is close to their criterion to protect human health (2.9 ng/L). There are several facilities planned for the Needyville area that will, if approved, significantly add to the mercury burden in the air and water of the Lake Hypo ecosystem. 4. In 1999, one of these facilities, Acme Widget Limited, the Appellant herein, applied under section 9 of the Ontario Environmental Protection Act for a Certificate of Approval (Air). The Certificate was needed as Acme will be emitting mercury into the air as a byproduct of its manufacturing process. Approximately 9 kg of this mercury will be subsequently deposited into Lake Hypo every year. 5. Following submission of Acme's application for a certificate of approval, public notice was posted on the Environmental Bill of Rights Registry. Four hundred and fifty (450) responses were received by the Ministry of the Environment, most of which conveyed serious public concern over the proposed increase in mercury emissions in the Lake Hypo ecosystem. The submissions were from local residents, ratepayers associations and both regional and national environmental organizations. The original application did not propose the use of "best available control technology, economically achievable", but following a series of articles in the National Post and a television documentary, the application was modified to include best available technology economically achievable, which now forms the application before the Board.



		6. Responding to the high degree of public concern, the Director issued to Acme the required Certificate of Approval (Air) containing a condition that is more stringent than that found in Regulation 346. In doing so, the Director emphasized the need to protect human and environmental health from the cumulative effects of mercury in the ecosystem. 7. The Certificate of Approval contains the following condition: 1. The operator shall ensure that the mercury emission rate does not exceed 11 g/hour. Reason for Condition The reason for imposing condition one is that mercury is a persistent toxic substance that bio-accumulates. The facility is located near Lake Hypo. Mercury will be deposited in the lake from the facility's air emissions. Best available technology can control the emission rate to less than 11/g per hour. It is appropriate to limit the emission rate to protect life in the lake and the health of humans who may consume fish from the lake. 8. Following issuance of the certificate, Acme appealed the condition to the Environmental Appeal Board (referred to subsequently as "the Board"), pursuant to section 139 of the Environmental Protection Act and a hearing was granted. 9. Acme Widget is appealing the condition to the Environmental Appeal Board on the following grounds: The Director has no legal authority to impose the condition. In the alternative, there is no reasonable link to mercury emissions from the company's plant to the levels in Lake Hypo. There is no technology that is economically achievable that can be used to meet the required emission rate. There is no reasonable link to mercury emissions from the company's plant causing any environmental impact in Lake Hypo. The company's technology is the best available and meets the legal requirements of Regulation 346 and any guidelines or criteria that the Ministry currently employs. 10. The Friends of Lake Hypo was granted intervenor status by the Board due to its history of involvement in cleaning up Lake Hypo and the knowledge regarding contaminants it is able to provide to the Board. 11. Mercury is a serious environmental pollutant, and its effects on humans and the environment are well documented. Source: S. Sang and B. A. Lourie, Mercury in Ontario: An Inventory of Sources, Uses and Releases (Toronto: Pollution Probe, 1996). 12. Mercury has different properties depending on its form. It has been determined that the mercury emission by the Appellant would be 50 percent elemental mercury and 50 percent mercury chloride. Once deposited in the lake, the different forms of mercury are capable of undergoing chemical reactions to convert to other types of mercury. The form of most concern to human and environmental health is methyl mercury. It is assumed that all forms of mercury undergo methylation in the lake at the same rate. Thus, the increase in mercury deposition to Lake Hypo from the Acme Widget plant will result in an increase in the concentration of mercury in fish, at a relationship of between 10:2 to 10:10. Source: Workshop Technical Scenario. 13. Most human exposure to mercury is due to methylmercury in food, particularly fish. Certain



	populations, such as Aboriginal people and other subsistence fishers, are at higher risk of exposure to methyl mercury. In addition, the particular sensitivity of the human fetus to mercury has led experts in both Canada and the United States to severely restrict the consumption of fish containing mercury in pregnant women, women of child-bearing age and children. Source: EPA Mercury Report to Congress; Workshop Technical Scenario. 14. Mercury concentrations in fish are accumulated and concentrate to higher exposure levels for predators and human consumers of the fish. 15. Although some uncertainty exists with respect to mercury's behaviour in the environment and the factors affecting absorption in humans, there are volumes of evidence documenting the effects of mercury on humans and other animals. Exposure to mercury causes adverse effects on the nervous system, especially on sensory-motor function, and on reproduction in humans and many species of wildlife. It has been found to be particularly harmful both to the embryos of animals/fish and to the human fetus, causing permanent developmental deficits (including reduced cognitive and motor ability) and behavioural changes. These effects can occur at very low doses, where the mother shows no or only mild symptoms. Source: US EPA, Mercury Report to Congress, supra; Sang et al., supra. 16. US EPA has set the reference dose for exposure to mercury, that is, the daily dose over a lifetime at which no adverse effects are expected to occur, at 0.1 g/kg of body weight per day. 17. Because of mercury's persistence, ability to bioaccumulate and devastating human and environmental effects at very low chronic doses, governments around the world and international organizations have targeted anthropogenic emissions of mercury for elimination. For example, the Commission for Environmental Cooperation has adopted the North American Regional Action Plan for Mercury, which sets as its goal "to prevent or minimize anthropogenic inputs of mercury to the environment." This includes two specific objectives: that ambient levels of mercury should approach natural background levels and that human releases of mercury should be reduced until naturally occurring levels are achieved. This Action Plan was approved by the Commission's governing Council of Ministers, of which both Canada and the US are members. In addition, the International Joint Commission has identified mercury as one of 11 critical pollutants which are persistent, toxic and bioaccumulative and are therefore targeted for "virtual elimination" under the terms of the Great Lakes Water Quality Agreement. According to Annex 12 of the Agreement, all regulatory strategies dealing with these pollutants are to undertaken with the "philosophy of zero discharge." 18. Canada and Ontario have committed themselves to accomplishing this phase out within the Great Lakes Basin ecosystem. The Great Lakes Binational Toxics Strategy was adopted by Canada and the U.S. to guide them in accomplishing the "unfinished business" of virtually eliminating persistent toxic substances from the Basin, as required by the Great Lakes Water Quality Agreement. The strategy contains a commitment by Canada to reduce mercury emissions from human sources in the Basin by 90% by 2000. As part of the 1994 Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem, Ontario and Canada agree to reduce the use, generation or release of mercury (and other specified priority substances) by 90% by 2000. Recent statements by the Ontario Minister of the Environment have confirmed the province's commitment to these goals. 19. Canada and Ontario are also participating through the Canadian Council of Ministers of the Environment in the development of "Canada wide standards". Mercury was chosen as a priority substance for immediate action in setting standards because of concerns that mercury levels in fish across Canada exceed levels now considered safe for human consumption and concerns that some wildlife populations may be at risk. While the process for development of the Canada-wide standard for mercury is on-going, the Canada-Wide Accord on Environmental Harmonization, the umbrella governing agreement that guides the development of these standards, commits the parties to developing these standards employing pollution prevention and other precautionary principles.



		20. Governments have made clear their commitment to the virtual elimination of anthropogenic releases of mercury. Every incremental increase, no matter how apparently small, works against that commitment. The only way that commitment can ever be accomplished is to prevent each and every new source from adding mercury to the environment. PART II POINTS IN ISSUE 21. The intervenor submits that the following points are in issue in this appeal: 1. Does the Director have jurisdiction to impose the proposed condition as granted in the certificate of approval? 2. Has the Director met the statutory requirements for exercise of that jurisdiction? 3. Does the Board have jurisdiction and grounds for imposing a condition more stringent than that imposed by the Director? PART III INTERVENOR'S ARGUMENTS ON THE POINTS IN ISSUE 1. Does the Director have jurisdiction to impose the proposed conditions as granted in the certificate of approval? 22. It is respectfully submitted that the Director has the jurisdiction to impose an air approval condition. This jurisdiction persists even though (a) one of the benefits of the condition is to protect water resources and (b) the condition imposed is even more stringent than the regulations. (a) Can the Director impose a section 9 approval to protect both air and water resources? 23. Both the governing legislation and jurisdiction makes it clear that the Director can impose a section 9 air approval condition in order to protect water resources. Overview to the Legislative Provisions 24. The stated purpose of the Ontario Environmental Protection Act (EPA) is to provide for the "protection and conservation of the natural environment". Source: Environmental Protection Act R.S.O. 1990, c. E.19, s. 3(1). 25. The Director is appointed by the Minister under the Act to implement and enforce its provisions. The authority for the Director to issue a certificate of approval is found in s. 9: 9(1) No person shall, except under and in accordance with a certificate of approval issued by the director, construct ... any plant ... that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water. 9(4)(a) The Director may refuse to issue a certificate of approval or may issue a



	certificate of approval on such terms and conditions as the Director considers necessary, to ensure than any construction, alteration, extension, replacement, use or operation of a plant, structure, equipment, apparatus, mechanism or thing referred to in clause (1)(a) ... will result in compliance with this Act and the regulations and any order or approval hereunder; or (b) on probable grounds, to prevent or alleviate an adverse effect. 1.—(1) In this Act, "adverse effect" means one or more of, impairment of the quality of the natural environment for any use that can be made of it, injury or damage to property or to plant or animal life, harm or material discomfort to any person, an adverse effect on the health of any person, impairment of the safety of any person, rendering any property or plant or animal life unfit for human use, loss of enjoyment of normal use of property, and interference with the normal conduct of business. 26. Regulation 346 is the general air pollution regulation promulgated under the EPA. The regulation establishes three separate standards designed limit the emissions of contaminants to air: The nuisance standard, the opacity or black smoke standard and emission standards. Emission standards are calculated using the concentration of a contaminant at a point of impingement. A point of impingement is a point where contaminants from a point source come into contact with the ground Source: R.R.O. 1990, Reg 346. Section 5(1) of Regulation 346 states: "The maximum concentration of a contaminant set out in Column 1 of Schedule 1 at a point of impingement from a source of contaminant, other than a motor vehicle, shall not be greater than the concentration set out opposite thereto in Column 3 of Schedule 1, expressed in the unit of concentration set out opposite thereto in Column 2 of Schedule 1". 27. The point of impingement standard in Schedule 1 for alkyl mercury is 1.5 ug per cubic metre of air, and for free and combined mercury, 5 ug per cubic metre of air. Applying the Legislative Framework 28. Section 9 of the Act applies to all discharges of contaminants into air. The Appellant contends that because the Director based the condition on effects associated with deposition to water, rather than air, the Director exceeded his jurisdiction. While a portion of Acme's mercury emissions will subsequently affect humans and other life forms via their deposition into the water of Lake Hypo, section 9 and the related air regulations are still applicable. 29. Section 9(1) of the EPA requires a certificate of approval before any facility may be constructed that may discharge a contaminant into the air. There is no dispute that Acme will discharge mercury into the air from its facility. Thus, a certificate of approval is required. 30. Section 9(4) of the EPA gives the Director authority to refuse such a certificate or impose conditions to ensure compliance with the Act or to prevent or alleviate an "adverse effect". "Adverse effect" is defined broadly in s. 1 to include a range of effects, including "injury _ to plant or animal life", "harm or material discomfort to any person" and "impairment of the quality of the natural environment_" "Natural environment" is defined to mean "the air, land and water, or any combination or part thereof, of the Province of Ontario". 31. Thus, the EPA is clear about the authority of the Director, in imposing a condition on an air certificate, to prevent resulting effects on water and human or animal health. When the Director imposed



		the condition on Acme's certificate, he was acting within his jurisdiction. To accept the Appellant's position would lead to an absurd result, requiring the Director to ignore the fact that all components of the environment are interconnected and thereby contribute to the Director being unable to protect the natural environment. (b) Can the Director impose a condition more stringent than the regulations? 32. It is submitted that, where the Director has probable grounds for believing that compliance with an existing regulatory standard will be inadequate to prevent or alleviate an adverse effect, the Director has authority to impose a more stringent standard. The Ontario Environmental Appeal Board has held that the Director (or the Board itself on appeal) has authority to go beyond the regulations and set a standard that is more stringent than that found in the regulations, if appropriate in an individual case. In addition, the Board has held that there is authority to tailor conditions in a certificate of approval to specific industrial processes and situations and failure to consider the individual circumstances may be unreasonable. Sources: Uniroyal Chemical Ltd. v. Ontario (Ministry of the Environment), [1992] OEAB, No.(Republic Environmental systems Brantford) Ltd. v. Director (MOEE), [1994] OEAB File no.6. 00314.A1, cited in Residents Against Company Pollution Inc. v. Ontario (MOEE), [1996] OEAB 29. 33. The Ontario MOE witness admitted that the point of impingement standards in Reg. 346 do not address the cumulative or persistent nature of a contaminant, merely its concentration at a hypothetical site. In addition, she admitted that the standards fail to take into account long-range transport, long term deposition, very short-term effects, very long-term effects, bioaccumulation, persistence, additive and synergistic effects or multiple source situations. 34. Further evidence of the inadequacy of the standards in Reg. 346 comes from an internal review of the regulation by the Ministry: The dispersion models are outdated and do not consider all adverse meteorological conditions or lakeshore effects. ... The regulation does not directly limit the persistent toxic emission loadings to the environment. The regulation permits the use of dispersion to bring the local concentrations down to acceptable levels; but, it does not take into account the fact that the pollutants can accumulate within the environment or be transported long distances and contribute to regional problems. The combined effects of multiple emission sources are not addressed by the Regulation. Source: Ministry of the Environment and Energy, Regulation Review O. Reg. 346, General Air Regulation, October 1995. (Obtained by the Canadian Environmental Law Association pursuant to a Freedom of Information and Protection of Privacy Act request, file #PDB960135). 35. These serious inadequacies in the regulatory standard, particularly as they relate to a proposal to emit mercury, a persistent, bioaccumulative toxic substance, gave the Director ample grounds for imposing a more stringent standard on the Appellant. If he had not done so, the Director would have failed to carry out his statutory obligation to protect the natural environment and prevent potentially devastating adverse effects. There is no jurisdictional or other constraint on the Director from imposing such a condition. 36. It is respectfully submitted therefore that the Director does have the jurisdiction to impose the condition as stated in the certificate of approval.



	2. Has the Director met the statutory requirements for exercise of that jurisdiction? 37. Although the Director has the jurisdiction to impose certain conditions, the Director still must meet the regulatory requirements before such conditions can be imposed. In this context, two statutory conditions that are relevant relate to the standard of proof and the need for an adverse effect. 38. It is respectfully submitted that these conditions have been met, and thus, allowing the Director to exercise its statutory discretion to impose such conditions. (a) Standard of proof 39. Section 9(4)(b) specifies that the standard of proof to be used by the Environmental Appeal Board in the present appeal is the "probable grounds" standard. The words "on probable grounds", as used in s. 9(4)(b) of the Act, indicate a standard of proof different from the "balance of probabilities" standard normally associated with civil tribunals in Ontario. Source: Residents Against Company Pollution Inc. v. Ontario (Ministry of Environment and Energy) [1996] O.E.A.B. No. 29 [hereinafter Residents] cited to QL 40. The language in s. 9(4)(b) implies a lower standard than the "reasonable and probable grounds" standard found in other provisions of the Act, such as s. 18(2). The s. 18(2) "reasonable and probable grounds" standard is also known as the "good reason to believe standard", and is regarded as a lower standard than the "balance of probabilities" standard. Source: Residents Against Company Pollution Inc. v. Ontario (Ministry of Environment and Energy) [1996] O.E.A.B. No. 29 [hereinafter Residents] cited to QL 41. Since the word "reasonable" is left out in s. 9(4)(b), the "probable grounds" standard should be characterized as a lower standard than both the "balance of probabilities" standard and the "reasonable and probable grounds" standard. The "probable grounds" standard should therefore only require that the Board has "some reason to believe" that a condition is necessary to prevent or alleviate an adverse effect, pursuant to s. 9(4)(b). 42. The Court should recognize how difficult it is to ascertain precisely the point at which an "effect" crosses the threshold and becomes an "adverse effect". In Domtar (supra at 50) the Board stated that "the immediate effect of the discharge of a contaminant to the natural environment may be difficult to ascertain, even with the most sophisticated testing procedures". The Board also stated that "[b]y the time environmental damage is proven, remedial action may not be available or be too late." Furthermore, the Board held that the Act "must be given a broad and liberal interpretation, one that enables the Director to identify and regulate potential as well as existing environmental problems." (b) Adverse Effect 43. In a prior decision of the Board, the term "impairment" as found in s. 1(1)(a) includes the dictionary meaning: "Impair: To grow or become worse; to suffer injury or loss; to deteriorate". This decision also indicates that under s. 1(1)(a) of the Act, an "adverse effect" has occurred where the quality of the environment has been worsened for any use that can be made of it. Source: Domtar Inc. v. Ontario (Ministry of Environment) [1989] O.E.A.B. No. 15, File No. EAB 18.87 44. Used in a similar context to "adverse effect", some provinces use the term "deleterious" in regulatory legislation. For this reason, the term "adverse effect" may be interpreted to be synonymous with "deleterious" or "deleterious effect". In R. v. Alcan Smelters and Chemicals Ltd. (1998), 37 W.C.B. (2d) 313, the British Columbia Court of Appeal held that a discharge of waste may be deleterious to the environment if contaminants in the waste add to an overall accumulation of a harmful substance.



		45. When determining whether a substance may cause an "adverse effect" under s. 1(1)(a) of the Act, the trier of fact should be concerned with the pollutant's capacity to cause an "adverse effect" as opposed to whether an "adverse effect" actually would occur. Source: R. v. Imperial Oil Ltd. (1995), 17 C.E.L.R. (N.S.) 12 (Ont. Ct. (Prov. Div.)), aff'd (unreported, September 5, 1997, Ont. C.A.)). 46. The Courts have held that impairment can be taken to include any cumulative impact on the environment, for instance, where an addition of a substance to a lake would not cause immediate harm, but would delay the recovery of a lake from prior pollution. Source: R. v. Falconbridge Mines Ltd. (1982), 8 W.C.B. 17 (Ont. Prov. Ct). 47. Recently, the Board has commented on the use of numerical limits in regulations when deciding on whether to give a third party leave to appeal a certificate of approval under the EBR. In the Board's view, "it is open to leave applicants to show that the potential harm from smaller amounts of contaminant is significant; for example, by evidence that emissions are capable of causing adverse effects at a level that complies with the numerical standards. However, in the absence of such evidence, compliance with the numerical standard may be assumed to be sufficient to eliminate the possibility of harm." In the Residents case, the Board held that in the context of the EBR, an "adverse effect" may be caused at a level that complies with numerical standards which would be found in regulations. Source: Residents Against Company Pollution Inc. v. Ontario (Ministry of Environment and Energy) [1996] O.E.A.B. No. 29 [hereinafter Residents] cited to QL 48. The Director made a number of assumptions during negotiations with the Appellant and subsequently during the hearing that are firmly supported by available information. These assumptions do have safety factors built in that make them "conservative". However, the reason for using these factors is a function of the many uncertainties that remain about the behavior of mercury and the processes by which it is taken up by humans and by which it causes adverse effects. It is submitted that the nature of this contaminant as a persistent, bioaccumulative toxic substance demand that conservative assumptions be made and those made by the Director may not be conservative enough. 49. Given the inadequacy of the numerical limits established in the regulation to address bio-accumulative, toxic and persistent substances such as mercury, the Director had probable grounds to invoke a more stringent standard. Moreover, it is appropriate for the Director to look at cumulative effects, especially from a substance like mercury, in fashioning conditions in certificates of approval. 3. Does the Board have jurisdiction and grounds for imposing a condition requiring zero discharge of mercury? 50. It is respectfully submitted that the Board should impose a condition requiring zero discharge of mercury. Principles such as the precautionary principle provide the basis upon which justify the condition. (a) General 51. Section 144(1) of the Environmental Protection Act allows the Board to step into the Director's shoes and make any decision that the Director could make relating to the subject matter of the appeal. The Board may direct the Director to take such action as the Board considers the Director should take in accordance with the Act and the regulations. Since the subject matter of the appeal is the condition of the certificate granted by the Director pursuant to s. 9(4), the Board has jurisdiction to



	confirm, revoke or alter the conditions of the certificate of approval. The Board may also, pursuant to s. 144(1) of the Act, confirm, revoke, alter, or substitute the decision of the Director to approve the s. 9(4) certificate of approval. 52. The Board has a responsibility of upholding the Act and implementing its purposes. Where necessary to achieve the purpose of the Act and where appropriate, the Board has the authority to set standards on a case by case basis. Source: Uniroyal Chemical Ltd. v. Ontario (Ministry of Environment) [1992] O.E.A.B. No. 6). 53. The Board, stepping into the shoes of the Director with respect to statutory authority on appeal, has authority to tailor conditions in a certificate of approval to specific industrial processes and situations. Source: Republic Environmental Systems (Brantford) Ltd. v. Director, Ministry of Environment and Energy [1994] O.E.A.B. File no. 00314.A1, as cited in Residents Against Company Pollution Inc. v. Ontario (Ministry of Environment and Energy) [1996] O.E.A.B. 29. 54. The Intervenor agrees with the Director's reasons for the imposition of the condition of approval, but does not agree that the condition is stringent enough to prevent potentially devastating adverse effects or to allow Ontario to meet its commitments under the Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem. It is submitted that the evidence supports the imposition of a zero discharge limit, that is, a condition that reads "the operator shall ensure that the mercury emission rate does not exceed 0.0 grams per hour". 55. The Board has jurisdiction under s. 144(1) of the Act to impose a zero discharge standard as a condition in the Appellant's certificate of approval, where the standard is necessary, on probable grounds, to prevent or alleviate an adverse effect pursuant to s. 9(4)(b). 56. The Board is a protector of the public interest and should exercise its discretion to impose a condition on appeal where, as in the present appeal, the condition is necessary on probable grounds to alleviate or prevent an adverse effect. The Board, where not satisfied that a condition is sufficient to meet the requirements of s. 9(4)(b), should direct the Director to take action in accordance with the Act and the regulations. 57. The purpose of the Act, found in s. 3(1), is to "provide for the protection and conservation of the natural environment". Therefore the Board has jurisdiction to instruct the Director to "provide for the protection and conservation of the natural environment", and impose a zero discharge standard where, as in the present appeal, it is necessary, on probable grounds, to alleviate or prevent an adverse effect. (b) The Precautionary Principle 58. It is submitted that the Director failed to take into account the Ministry's policy and the precautionary principle in imposing the condition. Under the Ontario Environmental Bill of Rights, the Ministry of the Environment was required to adopt a Statement of Environmental Values ("SEV"). The mandate of the MOE, as stated in the SEV is to "protect the quality of the natural environment so as to safeguard the ecosystem and human health; coordinate the government's energy supply and demand-related activities; and foster the efficient use and conservation of resources". Furthermore, the MOE commits itself to implementing an ecosystem approach to environmental protection. When making decisions, the Ministry states that it will "consider the cumulative effects on the environment; the interdependence of air, land, water and living organisms; and the interactions among the environment, the economy and society". Finally, with respect to environmental protection, the MOE states that its "priority will be to first prevent [pollutants'] release to the environment and second, to minimize their release".



		59. Statements of Environmental Values are required to be considered in the making of decisions on policies, programs, regulations and instruments such as certificates of approval. It is submitted that the Director's failure to consider the Ministry's pollution prevention policies as set out in its SEV and its commitments to eliminate new emissions of mercury to the Great Lakes Basin caused him to underestimate the need for a more stringent condition. 60. In the absence of scientific certainty, the Environmental Appeal Board should invoke the "Precautionary Principle" to support the imposition of a zero discharge standard for mercury in the conditions of approval. 61. The most widely accepted definition of the precautionary principle in Canada is elicited by the Canadian Council of Ministers of Environment. It states that "where there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 61. Source: Canadian Council of Ministers of the Environment, "A Canada-Wide Accord on Environmental Harmonization" as cited in E.L. Hughes et al., eds., Environmental Law and Policy, 2nd ed. (Toronto: Emond Montgomery Publications, 1998) at 69. 62. The Precautionary Principle has also been defined and adopted by the Rio Declaration's Principle 15. Principle 15 holds that "in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." The precautionary principle is an established principle of international law, observed by numerous international legal scholars. Sources: (Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M. 874); (Report of the United Nations Conference on Environment and Development, Distr. General, A/CONF.151/26 (Vol.I-III), 12 August 1992 as cited in P. Frye, "A Social Biosphere: Environmental Impact Assessment, the Innu, and Their Environment" (1998) 56(2) U.T. Fac. L. Rev. 177 at para. 9 (QL)).(Report of the United Nations Conference on Environment and Development, Distr. General, A/CONF.151/26 (Vol.I-III), 12 August 1992 as cited in P. Frye, "A Social Biosphere: Environmental Impact Assessment, the Innu, and Their Environment" (1998) 56(2) U.T. Fac. L. Rev. 177 at para. 9 (QL)). 63. Some commentators believe that the precautionary principle has become a customary international norm. Source: O. McIntyre & T. Mosedale, "The Precautionary Principle as a Norm of Customary International Law" (1997) 9 J. Env. L. 221. 64. The precautionary principle has also found recent authority with the International Court of Justice. Source: Submission of Hungary to the International Court of Justice in Republic of Hungary v. The Czech and Slovak Republic on the Diversion of the Danube River, as quoted in O. McIntyre & T. Mosedale, "The Precautionary Principle as a Norm of Customary International Law" (1997) 9 J. Env. L. 221 at 231. 65. The precautionary principle, although traditionally cited with authority in relation to international legal disputes, has found recent authority in domestic Canadian federal law. Source: Canadian Environmental Protection Act, S.C. 1999 (passed September, 1999). An Act respecting pollution prevention and the protection of the environment and human health in order to contribute sustainable development, 1st Sess., 36th Parl., 1997-98, preamble. Also see: Oceans Act, S.C. 1996, c. 31, s. 28;



	66. Canadian legal scholars hold that principles of international law, such as the precautionary principle, are perfectly valid means of elaborating the meaning of the Canadian Charter of Rights and Freedoms, and there is no reason to believe that the same principles do not apply to the elaboration of the common law. Source: M. Bastarache, "The Challenge of the Law in the New Millenium" (1998) 25 Man. L.J. 411 at para. 9 (QL). 67. It has long been recognized that customary international norms not contradicted by a domestic statute are a valid part of Canadian domestic law. Thus, since the precautionary principle is a customary international norm, not apparently contradicted by domestic legislation in Ontario, the precautionary principle should be considered a valid part of Ontario law. Source: M. Bastarache, "The Challenge of the Law in the New Millenium" (1998) 25 Man. L.J. 411 at para. 7 (QL). 68. The precautionary approach, as set out in Principle 15 of the Rio Declaration and in other international instruments, has been adopted by Canadian federal and provincial legislators. Not only does the binding statutory nature of the Canadian Environmental Assessment Act attest to this, but its purposes, which provide for a comprehensive assessment process prior to project implementation, reinforce the presence of the precautionary principle in Canadian law. Source: P. Frye, "A Social Biosphere: Environmental Impact Assessment, the Innu, and Their Environment" (1998) 56(2) U.T. Fac. L. Rev. 177 at para. 8 (QL) 69. It is respectfully submitted that the precautionary principle has been invoked in the context of Canadian provincial environmental law, most notably in Ontario and British Columbia. Therefore, the Ontario Environmental Appeal Board should feel compelled to consider a precautionary approach in the present appeal, where like the examples below, the facts of the case are largely dependent upon uncertain scientific evidence. 70. In 611428 Ontario Ltd. v. Metropolitan Toronto and Region Conservation Authority [1996] O.J. No. 1392 [hereinafter Metro], the Ontario Court of Justice endorsed the Ontario Mining and Lands Commissioner's argument that the precautionary principle applies to Ontario administrative hearings. In Metro, the issue of whether the Commissioner reasonably inferred that dump fill would alter a nearby downstream ecosystem was examined. The Ontario Court of Justice endorsed the Commissioner's view that where no scientific model is presented at a hearing to indicate a threshold test for the intrusion of pollution into a watershed beyond which development should not be allowed, the application of the precautionary principle is warranted. Source: 611428 Ontario Ltd. v. Metropolitan Toronto and Region Conservation Authority [1996] O.J. No. 1392. 71. The British Columbia Environmental Appeal Board has endorsed the view of the appellant that "Canada has recognized the Precautionary Principle" and that "the appeal board must follow suit; which means that where a decision about public health and/or safety and/or health of ecosystems must be made without adequate supporting scientific data, the action must err on the side of protection of public health/safety and the health of the ecosystem". The court also endorsed an agreement between the respondent Ministry and the permit holder to "favour a precautionary approach to pesticide use and that where there are other methods available that reduce risks, that they would use them." Source: Shuswap Thompson Organic Producers Assn. v. British Columbia (Ministry of Environment, Lands and Parks) [1998] B.C.E.A. No. 24 [hereinafter Shuswap] (QL). 72. "Part III: Guiding Principles for the Ministry of Environment and Energy" states that the MOE,



		including the Director of the MOE involved in the present appeal, "will exercise a precautionary approach in its decision making". As the MOE itself writes, "especially when there is uncertainty about the risk presented by particular pollutants or classes of pollutants, the Ministry will exercise caution in favour of the environment". 73. The precautionary principle should be applied where there is a threat of serious or irreversible damage, where there is a lack of scientific certainty and where there is a postponement of cost-effective measures to prevent threats of serious or irreversible damage. Where all three of these requirements are satisfied, the precautionary approach compels the trier of fact to err on the side of caution, and ensure that approval is granted only where the threat of serious or irreversible harm to humans or the environment is prevented or alleviated. 74. It is respectfully submitted that the Board can and should impose a zero discharge limit on the Appellant based upon binding policy and legal commitments undertaken by Ontario and Canada to eliminate anthropogenic sources of mercury, to give priority to pollution prevention and, when faced with uncertainty and the threat of serious or irreversible harm, to act with precaution. To do less would fail to protect Ontario's environment. PART IV - NATURE OF ORDER DESIRED 75. For all the foregoing reasons, it is requested that the Ontario Environmental Appeal Board allow the present appeal, and impose as a condition of the Appellant's Certificate of Approval (Air), the following condition: "The operator shall ensure that the mercury emission rate does not exceed 0.0 grams per hour." ALL OF WHICH IS RESPECTFULLY SUBMITTED this 19th day of October 1999. Paul Muldoon Marcia Valiante Laura Shaw Toshi Takishita Solicitors for the Intervenor John Martin Solicitor for the Appellant 60 Columbia Way, Suite 600 Markham, Ontario L3R OC9 Pat Moran Solicitor for the Respondent 135 St. Clair Avenue West, 10th Floor Toronto, Ontario M4V 1P5