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NONPOINT SOURCES: PRONSOLINO v NASTRI (479) FACTS

NONPOINT SOURCES: PRONSOLINO v NASTRI (479) FACTS. AFTER THE STATE FAILED TO ADOPT SEDIMENT TMDL FOR RIVER THAT FAILED TO MEET WQS, EPA ADOPTED TMDL TMDL WAS 60% BELOW HISTORICAL LOADINGS PRONSOLINOS SOUGHT TIMBER HARVESTING PERMIT FROM CALIFORNIA DEPT OF FORESTRY

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NONPOINT SOURCES: PRONSOLINO v NASTRI (479) FACTS

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  1. NONPOINT SOURCES:PRONSOLINO v NASTRI (479)FACTS • AFTER THE STATE FAILED TO ADOPT SEDIMENT TMDL FOR RIVER THAT FAILED TO MEET WQS, EPA ADOPTED TMDL • TMDL WAS 60% BELOW HISTORICAL LOADINGS • PRONSOLINOS SOUGHT TIMBER HARVESTING PERMIT FROM CALIFORNIA DEPT OF FORESTRY • STATE REQUIRED MITIGATION MEASURES IN PRONSOLINO’S PERMIT TO MEET TMDL • PRONSOLINOS CHALLENGED EPA’S AUTHORITY TO IMPOSE TMDLs FOR WATERS WITHOUT POINT SOURCES

  2. PRONSOLINO STATUTORY SETTINGTHE CWA “CARROT & STICK APPROACH” TO NONPOINT POLLUTION • “The Act provides no direct mechanism to control nonpoint source pollution but rather uses the ‘threat and promise’ of federal grants to the state to accomplish this task . . . • thereby ‘recognizing , preserving, and protecting the primary responsibilities and rights of the states to prevent, reduce, and eliminate pollution, [and] to plan the development and use . . . of land and water resources . . .” § 101(b). P. 480.

  3. PRONSOLINO STATUTORY SETTING:WATER QUALITY STANDARDS • WATER QUALITY STANDARDS (WQS) REQUIRED FOR ALL WATERS REGARDLESS OF SOURCES OF POLLUTION. (bottom 480) • EPA MUST ADOPT WQS IF STATE DOESN'T. 303(b). • WQS SHALL — • “PROTECT THE PUBLIC HEALTH OR WELFARE, ENHANCE THE QUALITY OF WATER . . . (AND) SHALL BE ESTABLISHED TAKING INTO CONSIDERATION THEIR USE AND VALUE FOR PUBLIC WATER SUPPLIES, PROPAGATION OF FISH AND WILDLIFE, RECREATIONAL PURPOSES, AND AGRICULTURAL, INDUSTRIAL, AND OTHER PURPOSES . . .” 303(c)(2)(A). • INCLUDE CRITERIA FOR ALL LISTED TOXIC POLLUTANTS. 303(c)(2)(B).

  4. PRONSOLINO STATUTORY SETTING: IDENTIFICATION OF WATERS NOT MEETING WQS; TMDLS • “Each State shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters.” § 303(d)(1)(A) • STATE MUST ESTABLISH TMDLs FOR THESE WATERS TO IMPLEMENT WQS. §303(d)(1)(C).

  5. PRONSOLINO STATUTORY SETTING:TMDL IMPLEMENTATIONTHROUGH CONTINUING PLANNING PROCESS • § 303(d)(2): UPON EPA APPROVAL OF TMDL, STATE MUST INCORPORATE IT INTO “CONTINUING PLANNING PROCESS” UNDER § 303(e). • § 303(e) GIVES “SOME OPERATIONAL FORCE” TO TMDL. • EPA MAY APPROVE CONTINUING PLANNING PROCESS IF IT INCLUDES — • “AREAWIDE WASTE MANAGEMENT PLANS” FOR NONPOINT SOURCES AND ADEQUATE IMPLEMENTATION, INCLUDING SCHEDULES OF COMPLIANCE FOR WQS. 303(e) • CWA PROVIDES FEDERAL FUNDING FOR IMPLEMENTATION OF EPA APPROVED PLANS.

  6. PRONSOLINO ISSUES & ARGUMENTS • LISTING AND TMDLs REQUIRED IF POINT SOURCE EFFLUENT LIMITS “ARE NOT STRINGENT ENOUGH” TO ACHIEVE WQS; THERE ARE NO POINT SOURCES ON GARCIA RIVER SEGMENT AT ISSUE HERE. • PRONSOLINOS: • ONLY DO TMDLs FOR WATERS WHERE EFFLUENT LIMITATIONS FAIL TO ACHIEVE WATER QUALITY (bot. 483) • STARTING POINT: MUST HAVE EFFLUENT LIMITATIONS • EPA: • DO TMDLs WHERE EFFLUENT LIMITATIONS ARE INSUFFICIENT TO IMPLEMENT WQS; NO LIMITATION TO WATERS INITIALLY AFFECTED BY EFFLUENT LIMITATIONS (Top 484)

  7. PRONSOLINOCOURT’S ANALYSIS: EPA REGULATIONS • EPA REGULATIONS DEFINE TMDLs AS SUM OF— • INDIVIDUAL WASTELOAD ALLOCATIONS FOR EXISTING OR FUTURE POINT SOURCES • LOAD ALLOCATIONS FOR EXISTING OR FUTURE NONPOINT SOURCES AND NATURAL BACKGROUND. 40 CFR §130.2

  8. PRONSOLINOCOURT’S ANALYSIS: EPA REGULATIONS, CONT’D • COURT NOTES THAT UNDER EPA REGULATIONS — • TMDL COULD APPLY EVEN THOUGH POINT SOURCES HAVE ZERO ALLOCATION (p. 482) • PLANS MUST INCLUDE “NONPOINT SOURCE MANAGEMENT AND CONTROL.” 40 CFR § 130.6 • IN SUM, EPA TMDL REGULATIONS APPLY REGARDLESS OF TYPE OF POLLUTANT SOURCE • CHEVRON DEFERENCE APPLIES. P.483.

  9. PRONSOLINOPRONSOLINO’S ARGUMENT: STRUCTURE OF ACT • CWA DISTINGUISHES BETWEEN POINT & NONPOINT SOURCES, SO SUCH A DISTINCTION MUST BE READ INTO § 303(d) RE TMDLs. CITED EXAMPLES: • § 208 — REQUIRES STATES TO ADOPT “AREAWIDE WASTE MANAGEMENT PLANS” THAT MAY INCLUDE CONTROLS ON NONPOINT SOURCES • § 319 — REQUIRES STATES TO IDENTIFY WATERS FAILING TO ACHIEVE WQS DUE TO NONPOINT SOURCES AND DEVELOP MANAGEMENT PLANS, INCLUDING PROCESS TO IDENTIFY “BEST MANAGEMENT PRACTICES” TO REDUCE NONPOINT POLLUTION. • EPA HAS NO AUTHORITY TO IMPLEMENT THESE PLANS IF STATE REFUSES, AND PLANS ARE NOT REQUIRED TO BE ENFORCEABLE AGAINST SOURCES. • FEDERAL FINANCIAL GRANTS ARE INTENDED TO SPUR STATE ACTION.

  10. PRONSOLINOHOLDING RE STRUCTURE OF ACT • EPA’S INTERPRETATION IS REASONABLE • TMDLS MAY BE ESTABLISHED FOR WATERS WHERE ONLY NONPOINT SOURCES CAUSE DISCHARGES • RATIONALE: • POINT SOURCES ARE TREATED DIFFERENTLY FROM NONPOINT FOR MANY PURPOSES, BUT NOT FOR PURPOSE OF § 303(d) REGARDING TMDLS

  11. PRONSOLINOFEDERALISM ARGUMENT • PRONSOLINO’S ARGUMENT: • EPA INTRUDING INTO STATE’S TRADITIONAL LAND USE ROLE • COURT: THIS TMDL DOES NOT SPECIFY AMOUNT OF ALLOWED POLLUTION FROM SPECIFIC PARCELS OF LAND, OR WHAT MEASURES STATE SHOULD TAKE. • JUST LIMITS BY BROAD CATEGORIES OF NONPOINT SOURCES • TMDL IMPLEMENTATION AND MONITORING ARE STATE RESPONSIBILITIES • CALIFORNIA CHOSE BOTH IF AND HOW TO IMPLEMENT THE TMDL • MUST BE IMPLEMENTED ONLY TO EXTENT STATE WISHES TO AVOID LOSING GRANT MONEY • NO PROVISIONS OTHERWISE REQUIRING IMPLEMENTATION OF § 303 PLANS OR PROVIDING FOR THEIR ENFORCEMENT.

  12. RISK ASSESSMENT & RISK MANAGEMENT • WHY DO WE CONSIDER RISK? • SCIENTIFIC UNCERTAINTY RE LONG-TERM EFFECTS OF POLLUTANTS • “ONE MOLECULE THEORY” & LONG LATENCY PERIODS FOR CARCINOGENS • OPTION: WAIT & SEE • “RULES CONCERNING RISK ASSESSMENT, CAUSATION, PRESUMPTIONS, BURDEN OF PROOF, SHARING OF LIABILITY, AND SCOPE OF JUDICIAL REVIEW BECOME CRITICAL.” p. 505 • NOTE SIMILARITY TO TORT LAW — BUT PREVENTATIVE

  13. RISK ASSESSMENT • STEPS: • HAZARD IDENTIFICATION • DOSE-RESPONSE EVALUATION • EXPOSURE ASSESSMENT • RISK CHARACTERIZATION • USUALLY AS INCREMENTAL LIFETIME RISK • ALSO . . . CANCER “BURDEN”

  14. RISK ASSESSMENT UNCERTAINTIES • EXTRAPOLATED PROBABILITIES vs. PAST FREQUENCIES • HUMAN (EPIDEMIOLOGICAL) STUDIES ARE LIMITED • TO AVOID “WAIT & SEE” DUE TO LATENCY PERIODS • POTENCY FACTORS • ANIMAL v HUMAN STUDIES • HIGH DOSES IN ANIMAL TESTS • DOSE-RESPONSE CURVES • EXPOSURE ASSUMPTIONS • DUE TO UNCERTAINTIES, HEALTH-PROTECTIVEASSUMPTIONS ARE USED

  15. RISK MANAGEMENT • WHAT IS ACCEPTABLE LEVEL OF RISK? • A POLICY CALL • WHAT FACTORS SHOULD BE CONSIDERED?

  16. EVOLVING KNOWLEDGE:CHLORINE CHEMISTRY COUNCIL v EPA (519)STATUTES • SAFE DRINKING WATER ACT • MCLG (MAXIMUM CONTAMINANT LEVEL GOALS) • “LEVEL AT WHICH NO KNOWN OR ANTICIPATED HEALTH EFFECTS WILL OCCUR” & ADEQUATE MARGIN OF SAFETY. 42 U.S.C § 300g-1(b)(4)(A) • MCL (MAXIMUM CONTAMINANT LEVEL — REGULATORY LIMIT) • AS CLOSE TO THE MCLG “AS IS FEASIBLE.” § 300g-1(b)(4)(B)

  17. CHLORINE COUNCILFACTS • 1994 EPA PROPOSED ZERO MCLG • BASED ON ABSENCE OF DATA SUGGESTING THRESHOLD • EPA USED DEFAULT ASSUMPTION OF LINEAR EXTRAPOLATIONIF DATA ABSENT • IF CAUSES CANCER AT ANY EXPOSURE, CAUSES IT AT EVERY EXPOSURE • 1997: PANEL RECOMMENDED NONLINEAR APPROACH • CONCLUDED CHLOROFORM NOT LIKELY CARCINOGENIC BELOW CERTAIN DOSE THRESHOLD • EPA SAID THIS CONCLUSION WAS WELL FOUNDED • 1998: EPA NEVERTHELESS ADOPTED ZERO MCLG • ADDITIONAL DELIBERATION OF SCIENTIFIC ADVISORY PANEL NEEDED BEFORE DEPARTING FROM LONG-HELD POLICY • NEEDED TO ACT BY 11/98 STATUTORY DEADLINE

  18. CHLORINE COUNCIL CLAIM • EPA VIOLATED STATUTORY DUTY TO USE “BEST AVAILABLE EVIDENCE.” 42 U.S.C § 300g-1(b)(3)(A)

  19. CHLORINE COUNCILFACTS, CONT’D • AFTER BRIEFING, EPA MOVES FOR VOLUNTARY REMAND TO CONSIDER SAB REPORT • COURT DENIES MOTION • RULE STILL IN EFFECT; EPA DIDN’T VACATE • EPA TELLS COURT IT WON’T DEFEND ORIGINAL DECISION AND MOVES COURT TO VACATE MCLG • COURT: MOTION TO VACATE DOES NOT OBVIATE NEED FOR DECISION • EPA HAS NOT STATED IT WOULD PROMULGATE A NON-ZERO MCLG

  20. CHLORINE COUNCILEPA ARGUMENTS • EPA COULD NOT COMPLETE DELIBERATIONS WITH SAB IN TIME: • NON LINEAR CONCLUSION WAS JUST AN INTERIM DECISION

  21. CHLORINE COUNCILHOLDING • EPA VIOLATED DUTY TO USE BEST AVAILABLE EVIDENCE • EPA CANNOT REJECT BEST AVAILABLE EVIDENCE BECAUSE OF POSSIBILITY OF CONTRADICTION IN FUTURE — ALWAYS PRESENT

  22. JUDICIAL APPROACH TO RISK & UNCERTAINTY:RESERVE MINING CO. v EPA (543) • FACTS: ASBESTOS-CONTAINING MINING BY-PRODUCTS DISCHARGED INTO LAKE • EPA ABATEMENT ACTION • DISTRICT COURT ENJOINED DISCHARGES; WOULD CLOSE FACILITY • STRUCTURE OF APPELLATE COURT’S OPINION • IS THERE A RISK TO PUBLIC HEALTH? • IS THE RISK LEGALLY COGNIZABLE? • REMEDY

  23. RESERVE MINING1. IS THERE A RISK TO PUBLIC HEALTH? • EVIDENCE — • TISSUE STUDY OF DULUTH RESIDENTS • NOT CONCLUSIVE; BUT INDICATES NO EMERGENCY • ANIMAL STUDIES RE PENETRATION OF GASTROINTESTINAL MUCOSA • CONFLICTING; SOME SUPPORT FOR IMPACT • INCREASED RATE OF GASTROINTESTINAL CANCER FROM OCCUPATIONAL EXPOSURE • INGESTION IMPACT IS TENABLE HYPOTHESIS • LEVEL OF EXPOSURE HAZARDOUS? • DISTRICT COURT: COMPARABLE EXPOSURE TO WHAT CAUSED OCCUPATIONAL CANCERS • COURT OF APPEAL: DUBIOUS ACCURACY

  24. RESERVE MININGCOURT’S CONCLUSIONS REGARDING RISK • FRONTIERS OF SCIENTIFIC KNOWLEDGE • NO PROOF OF ACTUAL HARM • COURT FACED WITH CONSIDERING PROBABILITIES AND CONSEQUENCES • PROBABILITY OF HARM IS NOT MORE LIKELY THAN NOT • “REASONABLE MEDICAL CONCERN” • “SOME HEALTH RISK” • SUCH CONTAMINANT “SHOULD BE REMOVED”

  25. RESERVE MINING 2. IS THE RISK LEGALLY COGNIZABLE? • THE STATUTE • AUTHORIZES ACTION BY US TO ABATE DISCHARGE VIOLATING CLEAN WATER ACT WATER QUALITY STANDARDS AND ENDANGER HEALTH OR WELFARE • HELD: “ENDANGER” USED IN PRECAUTIONARY OR PREVENTATIVE SENSE; • POTENTIALAS WELL ASACTUAL HARM INCLUDED • COURT’S AUTHORITY: ISSUE ORDERS AS PUBLIC INTEREST & EQUITIES REQUIRE

  26. RESERVE MINING3. REMEDY • TRIAL COURT: ORDERED IMMEDIATE CLOSURE • COURT OF APPEAL: • LOW PROBABILITIES/ SERIOUS CONSEQUENCES • UNPREDICTABLE HEALTH EFFECTS; PREDICTABLE SOCIAL & ECONOMIC CONSEQUENCES • EFFECT OF RESERVE’S OFFER TO HALT POLLUTION • CONCLUSION: ALLOW REASONABLE TIME TO STOP DISCHARGE

  27. NOTES (549) • 1. HOW JUSTIFY REQUIRING EXPENDITURE OF MILLIONS IN RESERVE MINING? • PREPONDERANCE OF EVIDENCE TEST NOT MET • 4. ETHYL CORP (DC CIR 1976): • UPHOLDING LEAD ADDITIVE PROHIBITION; “ENDANGER” STANDARD • AWAITING CERTAINTY WILL NOT ALLOW PREVENTATIVE REGULATION • RIGOROUS STEP BY STEP PROOF OF CAUSATION NOT REQUIRED WHERE STATUTE IS PRECAUTIONARY

  28. US SUPREME COURT ON RISK:INDUSTRIAL UNION v AMERICAN PETROLEUM INST. (552) • US SUPREME COURT WEIGHS IN ON • RISK • UNCERTAINTY • BURDEN OF PROOF • CONTEXT: OCCUPATIONAL • FACTS: OSHA BENZENE EXPOSURE LIMIT DROPPED FROM 10 PPM TO 1 PPM • SET REGULATION AT LOWEST FEASIBLE LEVEL

  29. INDUSTRIAL UNION: THE STATUTES • DEFINITION OF “STANDARD” - § 3(8): • “REASONABLY NECESSARY OR APPROPRIATE TO PROVIDE SAFE OR HEALTH EMPLOYMENT OR PLACES OF EMPLOYMENT” • REQUIRED STANDARDS FOR TOXICS - § 6(b)(5): • STANDARD “WHICH MOST ADEQUATELY ASSURES, TO THE EXTENTFEASIBLE, ON THE BASIS OF THE BEST AVAILABLE EVIDENCE, THAT NO EMPLOYEE WILL SUFFER MATERIAL IMPAIRMENT OF HEALTH OR FUNCTIONAL CAPACITY.”

  30. INDUSTRIAL UNIONTHE AGENCY’S DECISION & DEFENDANT’S ARGUMENT • DEFENDANT’S ARGUMENT • § 3(8) REQUIRES COST-BENEFIT ANALYSIS • (COURT DOESN’T REACH THIS ISSUE) • OSHA POSITION • MUST GUARANTEE • WORKPLACE FREE OF ANY RISK OF MATERIAL HEALTH IMPAIRMENT, HOWEVER SMALL, OR • COME AS CLOSE AS POSSIBLE WITHOUT RUINING ENTIRE INDUSTRIES

  31. INDUSTRIAL UNION: HOLDING RE SIGNIFICANCE (553-4) • ACT INTENDED TO REQUIRE ELMINATION, WHERE FEASIBLE, ONLY OF SIGNIFICANT RISKS • NEED THRESHOLD FINDING THAT WORKPLACE IS NOT “SAFE” • SOME RISK DOESN’T MEAN UNSAFE • ANALOGY TO DRIVING A CAR • RATIONALE: • STRUCTURE & LANGUAGE; LEGISLATIVE HISTORY • AVOID UNPRECEDENTED POWER OVER INDUSTRY (WHEN COUPLED WITH NO-THRESHOLD ASSUMPTION) (mid 554)

  32. INDUSTRIAL UNION: BURDEN OF PROOF ISSUE • ISSUE: HOW TO ALLOCATE BURDEN OF PROVING “SIGNIFICANT RISK” • SCIENTIFIC UNCERTAINTY; PRECISE QUANTIFICATION IMPOSSIBLE • OSHA POSITION: • EVIDENCE OF NO SAFE LEVEL • THUS BURDEN ON INDUSTRY TO PROVE SAFE LEVEL • OSHA: ANY OTHER APPROACH WOULD RENDER AGENCY HELPLESS (WOULD HAVE TO WAIT & SEE)

  33. INDUSTRIAL UNION: HOLDING RE BURDEN OF PROOF • BURDEN ON AGENCY TO SHOW MORE LIKELY THAN NOT LONG-TERM EXPOSURE TO 10 ppm PRESENTS SIGNIFICANT RISK OF MATERIAL IMPAIRMENT • RATIONALE: PROPONENT OF RULE ORDINARILY HAS BURDEN • IN SOME CASES INVOLVING TOXICS, CONGRESS SHIFTED THE BURDEN TO PROVE SAFE. Fn 61, E.G. FIFRA REGISTRATION SUSPENSION • CONGRESS DIDN’T SHIFT HERE • HERE, OSHA IMPOSED BURDEN ON INDUSTRY OF PROVING EXISTENCE OF SAFE LEVEL, THEREBY AVOIDING OSHA’S BURDEN. (558)

  34. INDUSTRIAL UNION: HOLDING RE EVIDENCE NEEDED TO MEET OSHA’S BURDEN • MUST WAIT FOR DEATHS? • NO . . . • NO DUTY TO CALCULATE EXACT RISK. (bottom 556). • STATUTE JUST REQUIRES “BEST AVAILABLE EVIDENCE” • OSHA MAY USE CONSERVATIVE ASSUMPTIONS • 1 IN THOUSAND: “MIGHT WELL BE” SIGNIFICANT

  35. INDUSTRIAL UNION: HOLDING Cont’d: ETC . . . . • TOP OF 558: ACTUAL FINDINGS MUST SUPPORT; NOT JUST FINDINGS COURT BELIEVES OSHA MIGHT HAVE MADE • SUBSTANTIAL EVIDENCE TEST HERE • FN 62: ACCEPTABLE RISK IS POLICY, NOT JUST FACTUAL, DETERMINATION • COURT DOES NOT DECIDE REVIEWING SCRUTINY • FN 64: “GOOD DEAL OF DATA” FROM ANIMALS HERE: 100 OF 200 RATS DIED

  36. INDUSTRIAL UNION: MARSHAL et al DISSENTING • OSHA ADEQUATELY MADE SIX FINDINGS (top of 562) • STATUTE DOESN’T REQUIRE FINDING OF SIGNIFICANT RISK • NOTE 3: IN “GREY AREA” WHERE EVIDENCE TOO UNCLEAR TO REACH CONCLUSION ABOUT RISK, MARSHAL WOULD ALLOW REGULATION BUT MAJORITY WOULD NOT

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