OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 197

October 1991

Nancy Kerastas, Esq.

Office of the General Counsel

Department of Environment & Conservation

150 9th Avenue North

Terra Building

Nashville, Tennessee 37243-1548

TOPIC: NPDES PERMITS: STATE SET WATER QUALITY STANDARDS

INQUIRY: According to EPA regulation 40 CFR 122.44(d) a state can set NPDES water 

quality standards which are more stringent than the federal standards. (Tennessee administers its

own NPDES permitting program; OSM administers the surface coal mining program.) A coal 

company is contesting the state's right to set certain effluent limits on an NPDES permit. Please 

locate any information which discusses the state's right to set more stringent levels and the 

processes the state must follow to establish those levels for the permit. 

SEARCH RESULTS: Using LEXIS, several cases and a Federal Register preamble were 

identified that confirm the state's right to set effluent limitations that are more stringent than the 

federal requirements. An additional preamble to EPA regulations noticed in the Federal Register 

was identified that discusses the process a state must follow in order to establish the more 

stringent effluent requirements. Copies of the items listed below are attached. 

CASE LAW

MENZEL v COUNTY UTILS. CORP., 501 F Supp 354 (E.D. Va 1979). MENZEL v 

COUNTY UTILS. CORP., 19 ERC (BNA) 2197 (E.D. Va 1982). MENZEL v COUNTY 

UTILS. CORP., 712 F 2d 91 (4th Cir 1983).

The State of Virginia set nitrogen discharge requirements more stringent than the federal 

requirements. A state court judge voided the more stringent requirements as "neither 

technologically achievable nor economically feasible". The NPDES permit was modified to 

eliminate the more stringent nitrogen requirement. The federal courts stated they were "bound by 

the announcement of state law in the state court opinion and decree" as the permit's conditions 

remained in conformity with federal law.

The 4th Circuit Court stated that the "NPDES permit program serves at least two purposes: it 

ensures that discharges are subjected to the scrutiny of the application process...; and it enables 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 3

specification of discharge limitations, including more stringent state guidelines, for all effluent 

point sources."

ENVIRONMENTAL PROTECTION AGENCY v CALIFORNIA EX. REL. STATE 

WATER RESOURCES CONTROL BOARD, 426 US 200 (1976).

The 1972 Amendments to the Federal Water Pollution Control Act provide that "the States may 

set more restrictive standards, limitations, and requirements than those imposed under the 

Amendments. Section 510 quite plainly was intended to strengthen state authority." However, 

while federal installations discharging water pollutants are obliged "to comply to the same extent 

as nonfederal facilities with state 'requirements respecting control and abatement of pollution,' 

obtaining a permit from a State with a federally approved permit program is not among such 

requirements."

INTERNATIONAL PAPER CO. v OUELLETTE et al., 479 US 481 (1987).

In addressing the issue of interstate water pollution, the Court stated that the Clean Water Act 

"allows the State in which the point source is located (the 'source State') to impose more stringent 

discharge limitations than the federal ones, and even to administer its own permit program if 

certain requirements are met."

UNITED STATES v CITY OF NIAGARA FALLS, 706 F Supp 1053 (W.D. NY 1989). 

[Excerpt]

In a footnote, the court explained that New York State's "somewhat more stringent effluent 

limitations and monitoring requirements" issued in October, 1982 were invalidated by the New 

York Supreme Court "on the grounds that the State had failed to hold a public hearing as 

required under state law."

PREAMBLES TO EPA NPDES REGULATIONS

53 FR 20764 (JUNE 6, 1988). Final rule. Clean Water Act Section 404 Program Definitions 

and Permit Exemptions; Section 404 State Program Regulations. [Excerpt]

"In response to comments, we have clarified that States may have a program that is more 

stringent or extensive than what is required for an approvable program. Under State law, and not 

as part of its approved program, States may also regulate discharges into those waters over which 

the Corps retains jurisdiction. Those parts of the State's program that go beyond the scope of 

Federal requirements for an approvable program are not subject to Federal oversight or federally 

enforceable."

54 FR 23868 (JUNE 2, 1989). Final rule. National Pollutant Discharge Elimination System; 

Surface Water Toxics Control Program. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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The preamble discusses the amendments to 40 CFR 122.44 and provides a comprehensive 

explanation of the procedures for developing water quality-based effluent limits from state 

narrative or numeric water quality criteria.

ATTACHMENTS

A. 40 CFR 122.44 (1990) 

B. MENZEL v COUNTY UTILS. CORP., 501 F Supp 354 (E.D. Va 1979). 

C. MENZEL v COUNTY UTILS. CORP., 19 ERC (BNA) 2197 (E.D. Va 1982). 

D. MENZEL v COUNTY UTILS. CORP., 712 F 2d 91 (4th Cir 1983). 

E. ENVIRONMENTAL PROTECTION AGENCY v CALIFORNIA EX. REL. STATE 

WATER RESOURCES CONTROL BOARD, 426 US 200 (1976). 

F. INTERNATIONAL PAPER CO. v OUELLETTE et al., 479 US 481 (1987). 

G. UNITED STATES v CITY OF NIAGARA FALLS, 706 F Supp 1053 (W.D. NY 1989). 

[Excerpt] 

H. 53 FR 20764 (JUNE 6, 1988). Final rule. Clean Water Act Section 404 Program 

Definitions and Permit Exemptions; Section 404 State Program Regulations. [Excerpt] 

I. 54 FR 23868 (JUNE 2, 1989). Final rule. National Pollutant Discharge Elimination 

System; Surface Water Toxics Control Program.