Shotguns, spray, and smoke: regulating atmospheric deposition of pollutants under the Clean Water Act.

• Author: Antony, Anil J.

1. INTRODUCTION II. ATMOSPHERIC MERCURY POLLUTION AS A CASE STUDY ILLUSTRATING THE SCIENCE OF ATMOSPHERIC DEPOSITION AND THE EXISTING REGULATORY SCHEME III. THE CLEAN WATER ACT AND THEORIES DE DISCHARGE IV. ATMOSPHERIC DEPOSITION OF POLLUTANTS AND THE TWO RATIONALES OF DISCHARGE A. The Indirect Discharge Rationale B. The Point Source Rationale 1. Addition of Pollutants via Land: The Effect of Gravity 2. Addition of Pollutants via the Atmosphere; The Effects of Gravity and Predictability a. Shotgun Pellets and Clay Pigeons b. Pesticide Spray and Incinerator Emissions i. The Non-textual Approach to Discharge of Pollutants ii. The Textual Approach to Discharge of Pollutants 3. Applying a Textual Interpretation of the Clean Water Act to Atmospheric Deposition of Pollutants a. Congressional Intent and Regulatory Conflict b. Fear of Irrational Results V. CONCLUSION I. INTRODUCTION

   I recently watched a fireworks display from the shore of a lake. I looked on with interest as breathtaking fireworks burst over the lake. My interest turned to concern as burning embers of fireworks residue drifted downward to the lake. My concern stemmed from knowing that this particular lake is a source of drinking water for the city of Portland, Maine. (1) Fireworks contain a number of potentially dangerous pollutants, including barium, copper, cadmium, lithium, rubidium, strontium, lead, and others. (2) Given the lake's use as a source of drinking water, I wondered whether the person shooting the fireworks had obtained a permit to do so pursuant to the Clean Water Act. (3) It appeared that the residue falling from the fireworks into the lake should have been regulated under the Clean Water Act. Discharges of pollutants within the purview of the Clean Water Act are those that involve "any addition of any pollutant to navigable waters from any point source." (4) Courts have held that liquid or misted pollutants released over land from a point source, which then flow into navigable waters, are within the purview of the Clean Water Act. (5) The same is true for solid pollutants released into or near navigable waters--they too are regulated under the Clean Water Act. (6) In essence, as long as a solid or liquid is considered a pollutant, (7) its discharge from a point source to navigable water may be regulated under the Clean Water Act. The common theme is that courts, pursuant to the Clean Water Act, proscribe releases of solid, liquid, and misted pollutants when it is demonstrated with certainty that the pollutant--shortly after release--deposited in navigable waters, even if the pollutant is not released directly into navigable waters. (8) Undoubtedly, then, the fireworks show should have been subject to the regulations of the Clean Water Act, at least for the debris that fell directly into the lake.

   I thought about the fireworks episode later that week when I saw a power plant on the shores of a river. The wind that day was pushing smoke and steam from the plant's stack downward, such that it hovered several feet above the surface of the water. I could not tell whether any of the pollutants, such as heavier particulate matter, were depositing directly into the river, but I wondered whether there was a scenario where emissions from the power plant could be regulated under the Clean Water Act. For example, what about particulates or other emissions that landed in the river shortly after their release from the power plant? Even if there had not been wind on that day, it is likely that particulates from the smoke I saw would deposit into the river. (9) Logically, pollutants released, e.g., from a smokestack into the atmosphere, could be regulated pursuant to the Clean Water Act if it could be proven with certainty that the pollutant would deposit into navigable waters. To paraphrase Sir Isaac Newton's first law of motion, (10) "when pollutants go up, they come down, ... often depositing in navigable waters." (11) Atmospheric deposition of anthropogenic pollutants into lakes, streams, rivers, and oceans is a major environmental problem of our time. (12) For many pollutants, it is difficult to predict the form and location of their deposition, due primarily to long atmospheric residence times. (13) However, some pollutants, such as mercury released from anthropogenic sources (14)--including from power plants and through firework displays--have relatively short residence times in the atmosphere. (15) As scientific knowledge of atmospheric distribution patterns of those airborne pollutants improves, scientists will be able to better predict spread patterns and deposition of these pollutants. It follows logically that when atmospheric deposition can be reliably measured and observed, releases of those pollutants from anthropogenic sources into the atmosphere could also be regulated pursuant to the Clean Water Act.

   This Article leaves for the scientists the debate about the scientific certainty regarding distribution and atmospheric deposition of pollutants. Instead, it considers the question whether, assuming that there is scientific certainty about deposition patterns and rates for airborne pollutants, the atmospheric deposition of those pollutants could be regulated pursuant to the Clean Water Act. The concept of atmospheric deposition is essential to watershed health and management because emissions released by land-based point sources, such as factories, power plants, and even fireworks, eventually precipitate into water bodies and onto land, from where the pollutants are washed into water bodies. (16) In many instances, and perhaps in general, the predictability upon which this Article is premised is lacking, because scientists are not yet certain about the atmospheric residence and deposition rates for many pollutants, which vary based on a number of factors. (17) However, for some pollutants, such as mercury, there is a wealth of knowledge about the localized effects of atmospheric releases (18) and an increasing ability to predict the regional spread of the pollutant through probabilistic analyses. (19) These rapid scientific advances in the ability to quantify atmospheric residence and deposition rates counsel that it now is appropriate to consider the legal implications of this advancing scientific knowledge as it pertains to the Clean Water Act.

   Part I of this Article examines airborne mercury Pollution as a case study for understanding the science of atmospheric deposition, the problems created by atmospheric deposition of pollutants, and the failure of the current regulatory system to address atmospheric deposition of pollutants. Part II examines the two rationales of pollutant discharge--the indirect discharge rationale and the point source rationale--both of which are regulated pursuant to a permitting scheme authorized by the Clean Water Act. Part HI examines the potential applicability of the indirect discharge rationale and the point source rationale to atmospheric deposition of pollutants. This part concludes that the indirect discharge rationale is the best fit for regulating atmospheric deposition of pollutants pursuant to the Clean Water Act's permitting system. Moreover, Part III also addresses concerns raised by courts that have addressed factually similar cases, and surmises that the fears raised by courts regarding the regulation of airborne pollutants pursuant to the Clean Water Act derive from a belief that regulating atmospheric pollutants under the Clean Water Act would delimit the scope of the regulatory scheme. However, the Article concludes that rather than resorting to applying arbitrary limitations to decrease the extent to which airborne pollutants are regulated under the Clean Water Act, courts should refocus on the ability of science to prove that atmospheric pollutants discharged from point sources will deposit in navigable waters. This focus on scientific certainty has the advantage of producing predictable application of the regulations that can adapt to ever-increasing scientific knowledge about atmospheric transport and deposition of pollutants. Thus, a science-based approach would best restore and maintain "the chemical, physical, and biological integrity of the Nation's waters," as required by the Clean Water Act. (20)

2. ATMOSPHERIC MERCURY POLLUTION AS A CASE STUDY ILLUSTRATING THE SCIENCE OF ATMOSPHERIC DEPOSITION AND THE EXISTING REGULATORY SCHEME

   Although the substantive legal analysis of this Article is written without reference to a particular pollutant, the problem of mercury pollution facing the United States serves as an inspiration for this Article. Examining the problems of mercury deposition helps to illustrate and contextualize both the seriousness of the problems that atmospheric deposition creates and shortcomings of the current legal and regulatory framework.

   Anthropogenic emissions of mercury are a major environmental and health problem in the United States. Mercury is a potent neurotoxin (21) that bioaccumulates in the food chain, until it reaches humans and has adverse effects on our health. (22) Once atmospheric mercury particles and gases deposit in aquatic environments, they are then methylated. (23) Methylation is the process by which inorganic mercury is converted to methylmercury. (24) Although methylation is both a biotic and abiotic process, the most common pathway is through conversion of inorganic mercury to methymercury by suffate-reducing bacteria. (25) One expert notes that "[t]he methylation of inorganic mercury Hg(II)" is "the most toxicologically significant transformation in the environmental mercury cycle because it greatly increases the bioavailability and toxicity of mercury and increases the exposure of wildlife and humans to methylmercury." (26) Animal species easily ingest the methylized form of mercury from food, water, and sediment. (27) That accumulation of methylmercury is dangerous because organisms eliminate methylmercury from their...