Dioxin/Organochlorine Center v. Clarke, s. 93-35973

• Citation: 57 F.3d 1517
• Decision Date: 22 June 1995
• Docket Number: 93-36000,Nos. 93-35973,s. 93-35973
• Parties: , 64 USLW 2063, 25 Envtl. L. Rep. 21,258 DIOXIN/ORGANOCHLORINE CENTER; Columbia River United, Plaintiff-Appellants, and Longview Fibre Co., et al., Plaintiffs-Intervenors, v. Chuck CLARKE, * in his capacity as Regional Administrator, United States Environmental Protection Agency, Region 10; United States Environmental Protection Agency, an agency of the United States Government, Defendants-Appellees. DIOXIN/ORGANOCHLORINE CENTER; Columbia River United, Plaintiffs, and Longview Fibre Co., a Washington corporation; James River II, Inc., a Virginia corporation; Boise Cascade Corporation, a Delaware corporation; Weyerhaeuser Co., a Washington corporation, Plaintiffs-Intervenors-Appellants, v. Chuck CLARKE, in his capacity as Regional Administrator, United States Environmental Protection Agency, Region 10; United States Environmental Protection Agency, an agency of the United States Government, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1517

57 F.3d 1517

40 ERC 1961, 64 USLW 2063, 25 Envtl.

L. Rep. 21,258

DIOXIN/ORGANOCHLORINE CENTER; Columbia River United, Plaintiff-Appellants, and Longview Fibre Co., et al., Plaintiffs-Intervenors, v. Chuck CLARKE, ^* in his capacity as Regional

Administrator, United States Environmental Protection

Agency, Region 10; United States Environmental Protection

Agency, an agency of the United States Government,

Defendants-Appellees.

DIOXIN/ORGANOCHLORINE CENTER; Columbia River United, Plaintiffs,

and

Longview Fibre Co., a Washington corporation; James River

II, Inc., a Virginia corporation; Boise Cascade

Corporation, a Delaware corporation; Weyerhaeuser Co., a Washington corporation, Plaintiffs-Intervenors-Appellants, v. Chuck CLARKE, in his capacity as Regional Administrator,

United States Environmental Protection Agency, Region 10;

United States Environmental Protection Agency, an agency of

the United States Government, Defendants-Appellees.

Nos. 93-35973, 93-36000.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1994.

Decided June 22, 1995.

Todd D. True and Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, for plaintiffs-appellants.

Karen M. McGaffey, Bogle & Gates, Seattle, WA, for plaintiffs-intervenors-appellants.

Christopher Scott Vaden, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeals from the United States District Court for the Western District of Washington.

Before: WRIGHT, O'SCANNLAIN, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

Appellants, environmental groups and paper and pulp mills, challenge on opposing grounds the district court's grant of summary judgment in favor of the Environmental Protection Agency ("EPA") on appellants' claims that the EPA violated the Clean Water Act ("Act"), 33 U.S.C. Sec. 1251, et seq., by establishing total maximum daily load limits for the discharge of the toxic pollutant dioxin into the Columbia River. We affirm.

FACTS AND PRIOR PROCEEDINGS

In the late 1980's, a series of EPA-sponsored and independent biological studies revealed that high levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin ("TCDD" or for the purposes of this appeal simply "dioxin" ¹) were accumulating in the tissue of fish located downstream from pulp and paper mills in the Columbia River Basin. These studies also confirmed that the mills themselves were a significant source of dioxin contamination as a result of their use of chlorine-based chemicals to bleach wood and other raw materials used in the paper production cycle. ²

Oregon, Washington, and Idaho had already adopted applicable water quality standards under state law for waters in the Columbia Basin including the Columbia, Snake, and Willamette Rivers. The EPA found that these water quality standards limited the permissible ambient concentration of dioxin to 0.013 parts per quadrillion ("ppq") as provided in the EPA's Quality Criteria for Water tables issued in 1986. ³ Due in large part to the mills activity, the dioxin concentration in these waters exceeded the level permitted by the state standards.

Pursuant to 33 U.S.C. Sec. 1314(l ), the states listed the mills as particular point sources believed to be impairing the water quality. ⁴ Section 1314 required the development of individual control strategies ("ICS") expressed as individual National Pollution Discharge Elimination System ("NPDES") permits which would result in the attainment of the applicable water quality standard within three years. ⁵

Oregon, Washington, and Idaho also identified the Columbia River as "water quality limited" pursuant to Sec. 1313(d)(1)(A), finding that the levels of dioxin being discharged into the Columbia River violated the applicable state water quality standards. Once the states had made this finding under Sec. 1313(d)(1)(A), the states, pursuant to Sec. 1313(d)(1)(C), or, the EPA, pursuant to Sec. 1313(d)(2), were required to establish a Total Maximum Daily Load ("TMDL") for dioxin. See TMDL at 2-1.

A TMDL defines the specified maximum amount of a pollutant which can be discharged or "loaded" into the waters at issue from all combined sources. Thus a TMDL represents the cumulative total of all "load allocations" which are in turn best estimates of the discrete loading attributed to nonpoint sources, natural background sources, and individual wasteload allocations ("WLAs"), that is, specific portions of the total load allocated to individual point sources. When a TMDL and specific wasteload allocations for point sources have been established, any NPDES permits issued to a point source must be consistent with the terms of the TMDL and WLA. See 40 C.F.R. Sec. 130.2.

The states decided against issuing TMDLs and WLAs on their own authority. Instead, after consultation and involvement in the development of the draft TMDL, the states requested the EPA to issue the proposed and final TMDL as a federal action under the authority of Sec. 1313(d)(2). On June 14, 1990, the EPA published a proposed TMDL and invited public comment. On February 25, 1991, the EPA established the final TMDL for dioxin discharge into the Columbia River.

In Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1314 (9th Cir.1992), we dismissed consolidated appeals on this matter for lack of jurisdiction. The environmental groups, Dioxin/Organochlorine Center and Columbia River United ("DOC"), then filed this action in the United States District Court for the Western District of Washington on January 11, 1993. The mills, Longview Fibre Co., James River II, Inc., Boise Cascade Corp., and Weyerhaeuser Co. ("Mills"), also challenged the EPA's action. The parties filed cross-motions for summary judgment. On August 10, 1993, the district court granted EPA's motion for summary judgment and denied the motions of DOC and the Mills.

DOC argues that the TMDL developed by the EPA fails to conform to the water quality standards adopted by the states because it is not stringent enough. DOC asserts that the TMDL was based on arbitrary and capricious decisions by the EPA constituting an abuse of discretion. The Mills, on the other hand, argue that the EPA violated the Clean Water Act by issuing a TMDL prior to establishing less burdensome technology-based limitations which the Mills assert are required by

the Act before the EPA can establish TMDLs.

ANALYSIS

I. Environmental Group Claims

A. Standard of Review

Under the Administrative Procedure Act ("APA"), "the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A); Longview Fibre, 980 F.2d at 1313. We recently noted,

[t]he APA does not give this court power "to substitute its judgment for that of the agency" but only to "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." [Citizens to Preserve] Overton Park [, Inc. v. Volpe], 401 U.S. [402,] 416 [91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 [1971]. We may reverse only if the decision was "arbitrary and capricious" within the meaning of the APA, 5 U.S.C. Sec. 706(2)(A), in that

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir.1994) (quoting Motor Vehicle Mfr. Ass'n v. State Farm Ins., 463 U.S. 29, 44, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983)).

B. Discussion

DOC contends that the TMDL fails to implement state water quality standards because it: 1) inadequately protects aquatic life and wildlife, 2) inadequately protects certain human subpopulations, and 3) fails to consider the cumulative effect of dioxin-related pollutants in the water system.

1. The TMDL: Aquatic Life and Wildlife

DOC maintains that the EPA abused its discretion by arbitrarily and capriciously considering only the risk to human life and failing to consider the effect of dioxin on animal life. ⁶

DOC first disputes the evidence relied upon by the district court to support its decision. In order to establish that it appropriately considered the effect of the TMDL on aquatic life and wildlife, the EPA filed in the district court an affidavit of Richard Albright. Albright was one of three principal EPA officials involved in the development of the TMDL. In his affidavit Albright stated:

During development of the TMDL, it was determined that an ambient concentration of [dioxin] of .013 ppq was necessary to protect human health. In addition, I concluded during development of the TMDL that an ambient concentration of .013 ppq would be protective of aquatic life and wildlife, and would therefore implement the state narrative water quality standards for aquatic life and wildlife protection.

In reaching this conclusion, I was aware of the data and analyses regarding the dioxin toxicity to aquatic life and wildlife contained in the following documents. The Fish and Wildlife Service Dioxin Hazard Document, ... EPA's Background Document to the Integrated Risk Assessment for Dioxins and Furans from Chlorine Bleaching in Pulp and Paper Mills, ... and EPA's dioxin criteria guidance document, entitled "Ambient Water Quality Criteria for 2,3,7,8-tetracholoro-dibenzo-p-diozin," dated 1984.... The TMDL was intended and designed to provide protection to humans aquatic life and wildlife.

DOC discounts the significance of Albright's affidavit and contends that the documents referred to do not support the conclusion that the EPA had adequately considered the effect of the TMDL on aquatic life and wildlife. We consider each of the documents cited by...