• NPDES: Permit Disclosures and Standard

Winter, Circuit Judge: This appeal raises the issue of whether private groups may bring a citizen suit pursuant to §505 of the Federal Water Pollution Control Act to stop the discharge of pollutants not listed in a valid permit issued pursuant to the CWA §402. We hold that the discharge of unlisted pollutants is not unlawful under the CWA. We also hold that private groups may not bring such a suit to enforce New York State environmental regulations.

Appellee Eastman Kodak Company ("Kodak") operates an industrial facility in Rochester, New York that discharges wastewater into the Genesee River and Paddy Hill Creek under a State Pollutant Discharge Elimination System ("SPDES") permit issued pursuant to CWA §402. Appellant Atlantic States Legal Foundation, Inc. ("Atlantic States") is a not-for-profit environmental group based in Syracuse, New York.

Kodak operates a wastewater treatment plant at its Rochester facility to purify waste produced in the manufacture of photographic supplies and other laboratory chemicals. The purification plant employs a variety of technical processes to filter harmful pollutants before discharge into the Genesee River at the King's Landing discharge point (designated Outfall 001) pursuant to its SPDES permit.

Kodak first received a federal permit in 1975. At that time, the pertinent regulatory scheme was the National Pollutant Discharge Elimination System ("NPDES") that was administered directly by the federal Environmental Protection Agency ("EPA"). Subsequently, CWA § 402(b), (c) delegated authority to the states to establish their own programs in place of the EPA's. As a result, Kodak applied in July 1979 to renew its permit to the New York State Department of Environmental Conservation ("DEC"). The DEC declined to act on Kodak's renewal application, and Kodak's NPDES permit remained in effect. As part of the pending application for a SPDES permit, in April 1982 Kodak provided the DEC with a Form 2C describing estimated discharges of 164 substances from each of its outfalls. Kodak also submitted an Industrial Chemical Survey ("ICS") disclosing the amounts of certain chemicals used in Kodak's facility and whether they might appear in the plant's wastewater. Although the ICS originally requested information on 144 substances, including some broad classes such as "unspecified metals," the DEC restricted the inquiry to chemicals used in excess of specified minimum levels.

On the basis of these disclosures, DEC issued Kodak a SPDES permit, number 000-1643, effective November 1, 1984, establishing specific effluent limitations for approximately 25 pollutants. The permit also included "action levels" for five other pollutants as well as for three of the pollutants for which it had established effluent limits. DEC further required Kodak to conduct a semi-annual scan of "EPA Volatile, Acid and Base/Neutral Fractions and PCB's priority pollutants on a 24-hr. composite sample." In May 1989, Kodak applied to renew the SPDES permit submitting a new Form 2C and ICS, but the 1984 permit will continue to remain in effect until DEC issues a final determination.

On November 14, 1991, Atlantic States filed the complaint in the instant matter. The complaint alleged that Kodak had violated §§ 301 and 402 by discharging large quantities of pollutants not listed in its SPDES permit. After discovery Atlantic States moved for partial summary judgment as to Kodak's liability in relation to post-April 1, 1990 discharge of one or more of 16 of the 27 pollutants listed in the complaint. The 16 pollutants are all listed as toxic chemicals under §313(c) of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §11023(c). Atlantic States argued that General Provision 1(b) of the SPDES permit and §301 of the CWA prohibit absolutely the discharge of any pollutant not specifically authorized under Kodak's SPDES permit. Kodak made a cross-motion for summary judgment on the ground that neither the CCWA nor the federal regulations implementing it prohibit discharge of pollutants not specifically assigned effluent limitations in an NPDES or SPDES permit.

Atlantic States argues first that the plain language of §301 of the CWA, prohibits the discharge of any pollutants not expressly permitted. §301(a) reads: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." This prohibition is tempered, however, by a self-referential host of exceptions that allow the discharge of many pollutants once a polluter has complied with the regulatory program of the CWA. The exception relevant to the instant matter is contained in § 402, which outlines the NPDES, and specifies the requirements for suspending the national system with the submission of an approved state program, WPA § 402(k) contains the so-called "shield provision, "which defines compliance with a NPDES or SPDES permit as compliance with § 301 for the purposes of the CWA's enforcement provisions. The Supreme Court has noted that "The purpose of CWA [§402(k)] seems to be ... to relieve [permit holders] of having to litigate in an enforcement action the question whether their permits are sufficiently strict." E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n. 28, 97 S.Ct. 965, 980 n. 28, 51 L.Ed.2d 204 (1977).

Atlantic States' view of the regulatory framework stands that scheme on its head. Atlantic States treats permits as establishing limited permission for the discharge of identified pollutants and a prohibition on the discharge of unidentified pollutants. Viewing the regulatory scheme as a whole, however, it is clear that the permit is intended to identify and limit the most harmful pollutants while leaving the control of the vast number of other pollutants to disclosure requirements. Once within the NPDES or SPDES scheme, therefore, polluters may discharge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants.

The EPA lists tens of thousands of different chemical substances in the Toxic Substances Control Act Chemical Substance Inventory pursuant to 15 U.S.C. § 2607(b). However, the EPA does not demand even information regarding each of the many thousand chemical substances potentially present in a manufacturer's wastewater because "it is impossible to identify and rationally limit every chemical or compound present in a discharge of pollutants." Memorandum from EPA Deputy Assistant Administrator for Water Enforcement Jeffrey G. Miller to Regional Enforcement Director, Region V, at 2 (Apr. 28, 1976). "Compliance with such a permit would be impossible and anybody seeking to harass a permittee need only analyze that permittee's discharge until determining the presence of a substance not identified in the permit." Indeed, at oral argument Atlantic States could provide no principled reason why water itself, which is conceded to be a chemical, would not be considered a "pollutant" under its view of the Act.

The EPA has never acted in any way to suggest that Atlantic States' absolutist and wholly impractical view of the legal effect of a permit is valid. [FN9] In fact, the EPA's actions and policy statements have frequently contemplated discharges of pollutants not listed under a NPDES or SPDES permit. It has addressed such discharges by amending the permit to list and limit a pollutant when necessary to safeguard the environment without considering pre-amendment discharges to be violations calling for enforcement under the CWA. The EPA thus stated in its comments on proposed 40 C.F.R. § 122.68(a), which applied the "application- based" limits approach to implementation of the CWA reporting scheme,

There is still some possibility ... that a [NPDES or SPDES] permittee may discharge a large amount of a pollutant not limited in its permit, and EPA will not be able to take enforcement action against the permittee as long as the permittee complies with the notification requirements [pursuant to the CWA]. 45 Fed.Reg. 33516, 33523 (1980).

The EPA's statement went on to note that this possibility constituted a "regulatory gap," and that, "the final regulations control discharges only of the pollutants listed in the [NPDES or SPDES] permit application, which consist primarily of the listed toxic pollutants and designated hazardous substances." [The opinion went on to uphold EPA's statutory interpretation using the deferential Chevron v. NRDC, 467 U.S. 837 (1984) standard of review. The decision in favor of Kodak was affirmed.]