Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Pollutant' Element of the Federal Water Pollution Offense
| Date | 01 November 2014 |
| Author |
44 ELR 10960 ENVIRONMENTAL LAW REPORTER 11-2014
Plain Meaning,
Precedent, and
Metaphysics:
Interpreting the
“Pollutant”
Element of the
Federal Water
Pollution Offense
by Jerey G. Miller
Jerey G. Miller is Professor of Law
Emeritus at Pace Law School.
is Article, the second in a series of ve, examines the
meaning of “pollutant” under the Clean Water Act.
Congress and EPA have dened “pollutant” to mean a
list of specic substances and broad categories of mate-
rials and wastes discharged into water, e.g., “biologi-
cal materials” and “chemical wastes.” e denition
is broad enough to encompass virtually all substances
associated with human activity that are discharged to
water, regardless of whether the substances cause pollu-
tion or are produced through human endeavor. ere-
fore, “pollutant” is rarely a limiting element. Instead,
the issues with the denition of “pollutant” primarily
address whether it includes material used in common
and productive activities, such as adding hatchery-
raised sh (“biological material ”) to trout streams or
spraying pesticides to suppress disease-bearing mos-
quitoes (“biological material” or “chemical wastes”).
EPA can easily x these and other problems by a bet-
ter regulatory denition.
I. Introduction
e Clean Water Act (CWA)1 prohibits “the discharge of
any pollutant by any person,” unless in compliance with
several listed sections in §301(a).2 e listed sections autho-
rize the issuance of two types of CWA permits and specify
their substantive requirements.3 In §502(12) the statute
denes “discharge of a pollutant” to mean “any addition of
any pollutant to navigable waters f rom any point source.”4
In sum, the subsection prohibits (1)any addition (2)of any
pollutant (3)to navigable waters (4)from any point source
(5)by any person, except in compliance with a CWA per-
mit. U.S. Supreme Court Justice Ruth Bader Ginsburg has
called t his the “core command” of the CWA.5 is is t he
second in a series of ve articles examining how the U.S.
Environmental Protection Agency (EPA) and the courts
have interpreted the initial four jurisdictional elements
of t he federa l water pollution control oense from 1972
to 2012.6 e rst four articles in the series examine each
of the rst four elements, and a fth article explores dif-
ferences in the techniques courts have used to interpret
them. Disputes over the interpretations of these elements
have produced a steady stream of reported decisions since
the initial implementation of the statute. Even after four
decades, many of t he issues are unresolved and new issues
continue to surface.
ese articles have t wo purposes. e rst is to provide
denitive analyses of the initial four elements. Because
many of t he most dicult issues under several of the ele-
ments arise from t he same fact patterns, one hypothesis is
that examining these elements in depth in the same project
will ma ke it easier to resolve t he common issues. Because
many EPA a nd judicia l interpretations obscure elements
by conating them with other elements, another hypoth-
esis is that examining each element alone and in depth will
illuminate its singular meaning and its relations with other
elements. e second purpose is to explore the methods
1. Clean Water Act, 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
3. The U.S. Env ironment al Prote ction A gency ( EPA) issu es perm its un-
der CWA §4 02, 33 U.S. C. §1242, to regulat e water po llution, and the
U.S. A rmy Corp s of Engi neers (t he Corps) issues permits u nder CWA
§404, 33 U. S.C. § 1344, t o regul ate the filli ng of wetlands and other
naviga ble wate rs.
4. 33 U.S.C. §1362(12).
5. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S.
261, 298 (2009). e author has elsewhere called the subsection “the basic
prohibition” of the CWA. J G. M ., I
E L: C M W P
C 141 (2008).
6. e other elements of the oense are similarly deserving of individual analy-
sis, but space constraints preclude their discussion in this Article. e au-
thor’s analysis of the “addition” element of the oense was published in an
earlier issue of . Jerey G. Miller, Plain Meaning,
, 44 ELR 10770 (Sept. 2014).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
11-2014 NEWS & ANALYSIS 44 ELR 10961
that EPA and the courts have used to interpret the ele-
ments. One hypothesis is t hat the very dierent nat ures
of the four elements will result in dierent frequencies of
judicial challenges, dierent ratios of expansive to narrow
interpretations, and dierent interpretive devices used by
the courts. Another hypothesis is that statutory interpreta-
tion is dynamic: both the interpretations of the elements
and the methods used to interpret them evolve over time,
reecting the maturation of the statute and developments
in jurisprudence.
e C WA denes polluta nt to mean a list of 18 spe -
cic substances and categories of subst ances “discharged
into water,” with two specic exclusions in §502(6). e
categories include biological and radioactive materials,
and solid, chemical, industrial, municipal, and agricul-
tural wastes. While many substances may not initially
fall into one of these categories, once such materials a re
discha rged into water, most become waste and then fall
within one of the wa ste categories. As a consequence, it is
dicult to imagine a substance disc harged into water that
is not included in one of the c ategories. e denition of
pollutant is qualitatively dierent in t his regard from the
denitions of two other elements dened in the CWA,
“point source” and “navigable water.”7 Both of them
have statutorily enunciated opposite s. “Point sources” are
conned, discrete c onveyances, but the CWA recognizes
their opposites: nonpoint sources such as surfac e runo.
“Navigable waters” may be a broad term, but the CWA
recognizes t heir opposites: non-navigable waters suc h as
groundwater. And, of course, water has its opposite: dry
land. But what is the opposite of a “pollutant”? A sub-
stance that does not pollute? We wil l see t hat the U.S.
Congress divorced the meaning s of pollutant and pollu-
tion. Or i s the opposite of a pollutant a substance that is
not listed or not part of a listed category? Name a sub-
stance that does not fall into a listed categor y when it is
discha rged into water.
e denition of pol lutant is e xtremely broad. As a
consequence, almost all decisions considering w hether a
particular substance is a pollutant should be a nswered
positively. B ecause it is fairly clear that most substances
are pollutants, fewer decisions should consider whether
the pollutant element of the oense is met than whether
other elements of the oense are met. Finally, most courts
should use the plain meaning of the denition to deter-
mine whether a substance is a pollutant. Once courts
have held that a variety of substances are pollutants,
precedent also should become a f requently used short-
cut interpretive device. Courts should not often en gage
in e xtensive interpretations of pollutant. e interesting
pollutant decisions, t herefore, will be those holding sub-
7. CWA §502(7) & (14), 33 U.S.C. §1362(7) & (14).
stances not to be pollutants and decisions u sing multiple
interpretive devices. ese decisions shou ld point to the
fault l ines bet ween pollutants and their opposites, what-
ever they are. Or as Supreme Court Justice Sonia Soto -
mayor has commented, they are the “muddy, unclear and
gray ca ses.”8
e Article begins by examining congressional actions
illuminating the meaning of pollutant. It parses the statu-
tory denitions of pollutant and related terms; identies
the contexts in which Congress used the term in t he stat-
ute and how the term relates to other dened terms in the
statute; and reviews relevant legislative history. Next, the
Article catalogues the substances that courts have held are,
or are not, pollutants; and analyzes EPA and judicial inter-
pretations of pollutant. Finally, the Article identies and
discusses prominent or dicult issues that EPA and the
courts have resolved in their interpretations.
II. Legislative and Administrative
Definitions of Pollutant and Related
Terms
A. Statutory Definitions
1. Pollutant
Although “pollutant” has a familiar common meaning as
something that pollutes, §502(6) denes it to mean a list
of 18 specic substances or categories of substances
9
“dis-
charged into water,” with two exclusions.
10
EPA’s regulatory
denition is virtually identical.
11
Because the denition states
that pollutant means a list of specic substances or categories
of substances, the list is an exclusive one and nothing else can
be a pollutant.
12
e exclusive nature of this list is emphasized
8. Remarks by Supre me Court Justice Son ia Sotomayor at Pace La w School
(Nov. 12, 2012) ( commenting on ca ses that compri se the Supreme
Court’s docket).
9. CWA §502(6), 33 U.S.C. §1362(6). Dredged spoil, incinerator residue,
sewage sludge, munitions, wrecked or discarded equipment, rock, sand
and cellar dirt (specic substances); solid waste, sewage, garbage, chemical
wastes, biological materials, radioactive materials, industrial, municipal, and
agriculture waste (categories of substances). Heat, which is included in the
list, is not a substance or material, although it could be a waste. Some of the
substances on the list could be considered either a material or a categor y of
material, e.g., dredged spoil or sewage.
10. Id. e exclusions are: (1) sewage from vessels regulated by CWA §312,
33 U.S.C. §1322; and (2)water, gas, or other material pumped into wells
to facilitate production of petroleum products or pumped onto wells for
disposal of wastes pursuant to state permits.
11. It adds “filter ba ckwash” to and drops “cellar di rt” from the list, quali-
fies “radioa ctive material s” as tho se n ot regulated unde r th e At omic
Energy Act, 42 U.S.C. §§2 011 et s eq., and restates t he two e xceptions
in mino r ways.
12. An exclusive denition, using “means,” is conned to the specics of the
denition, while an inclusive denition, using “includes,” is not. Sierra
Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 565, 26
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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