City of Albuquerque v. Browner

• Decision Date: 21 October 1993
• Docket Number: Civ. No. 93-82-M.
• Parties: CITY OF ALBUQUERQUE, Plaintiff, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of New Mexico

865 F. Supp. 733

CITY OF ALBUQUERQUE, Plaintiff, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant.

Civ. No. 93-82-M.

United States District Court, D. New Mexico.

October 21, 1993.

COPYRIGHT MATERIAL OMITTED

Gregory P. Smith, Albuquerque City Attys. Office, Albuquerque, NM, Bruce S. Garber, Garber & Hallmark, Santa Fe, NM, for plaintiff.

John W. Zavitz, U.S. Attys. Office, Dist. N.M., Albuquerque, NM, Myles E. Flint, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Pat Rankin, U.S. Environmental Protection Agency, Asst. Regional Counsel, Dallas, TX, Randolph L. Hill, U.S. Environmental Protection Agency, Washington, DC, Elizabeth M. Ahern, U.S. Attys. Office, N.D. Ga., Atlanta, GA, for defendant.

L. Lamar Parrish, Ussery & Parrish, Albuquerque, NM, for amicus curiae, Isleta of Pueblo.

MEMORANDUM OPINION AND ORDER

MECHEM, Senior District Judge.

This matter comes on for consideration on cross motions for summary judgment filed June 11, 1993. Having reviewed the motions, responses and replies, and being otherwise fully apprised in the premises, I find that defendants' motion is well taken and will be granted and that plaintiff's motion is not well taken and will be denied.

The City filed suit under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. and under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. This Court is authorized to review the actions of federal agencies under the Administrative Procedure Act, 5 U.S.C. § 551 et seq.

BACKGROUND

This case concerns the quality of Rio Grande water south of Albuquerque where the river flows through Isleta Pueblo. The river runs north to south through New Mexico before turning east and south to form the border between Texas and Mexico. Albuquerque's waste treatment facility outfall is approximately five miles north of the Isleta Pueblo boundary.

The waste treatment facility discharges to the Rio Grande under a National Pollution Discharge Elimination System (hereinafter "NPDES") permit issued by the U.S. Environmental Protection Agency (hereinafter "EPA"). EPA sets permit discharge limits for the facility to meet New Mexico's water quality standards. EPA revised the City's NPDES permit a year ago to reflect the State's new, more stringent standards. On October 12, 1992, while that revision was in progress, EPA recognized Isleta Pueblo as a state for purposes of the Clean Water Act, § 518(e), 33 U.S.C. § 1377(e). EPA delayed issuing the City's revised permit until the Pueblo's proposed water quality standards were approved. EPA approved the Pueblo's standards on December 24, 1992, and is preparing a NPDES permit for the City wastewater treatment facility that will meet the Pueblo's standards as well as the State's. The Pueblo's standards are more stringent than the State's. The City of Albuquerque challenges the agency's approval of Isleta Pueblo's water quality standards.

The City filed a complaint on January 25, 1993, and on February 2, 1993, moved this court for a temporary restraining order and then for a preliminary injunction. After a hearing on February 17, 1993, I denied both requests. The City amended its complaint on March 16, 1993, and renewed its motion for a preliminary injunction on July 23, 1993, after receiving EPA's Draft NPDES permit. The parties filed cross motions for summary judgment on June 11, 1993, and submitted responses and replies to one another's motions.

The City challenges the agency's approval of the Pueblo's water quality standards on several grounds. Specifically, the City alleges that EPA failed to follow the required procedures in approving the standards, misinterpreted two provisions of the Act in approving the standards, and approved standards that are unconstitutional. Further, the City asserts that EPA violated the Act by failing to provide a mechanism to resolve unreasonable consequences which arise when a State and a Tribe impose different standards on a common body of water, and by failing to ensure that the Pueblo standards are stringent enough to protect the designated uses. Finally the City asserts that the Pueblo's water criteria are without any rational scientific basis and should not have been approved.

DISCUSSION

The parties dispute the appropriate scope of the court's review and the materials which properly form the record for review.

A. Scope of Review

The City asks this court to review the agency's decision under the Administrative Procedure Act, 5 U.S.C. § 551 (hereinafter "APA"). The City also asserts jurisdiction under the Declaratory Judgment Act 28 U.S.C. §§ 2201, 2202, and argues that the court's authority under the Declaratory Judgment Act expands the record available for judicial review beyond the administrative record compiled by the agency. The City cites no authority for this argument. EPA's position is that the court may properly review only the administrative record the agency reviewed in making the challenged decision. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985). The reviewing court does not review the facts de novo or reach an independent conclusion. Id. at 744, 105 S.Ct. at 1607. The Declaratory Judgment Act is not an independent grant of jurisdiction and does not enlarge the parties' substantive rights. Action brought under the Declaratory Judgment Act does not alter the scope of review. Davis v. United States Dept. of Housing, 627 F.2d 942 (9th Cir.1980).

The agency is correct but the argument is of no matter in this case. The information relied on by the City is incorporated into the administrative record in the form of comments to the Pueblo or to EPA, or was presented at the February 17 hearing. I consider the administrative record in reviewing the agency's decision to approve Isleta's standards, but I cannot fail to take notice of the information presented in the hearing, much of which the agency did not dispute.

I review the EPA's decision to approve Isleta's water quality standards to determine whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... without observance of procedure required by law; ... or unsupported by substantial evidence ...." Administrative Procedure Act, 5 U.S.C. § 706(2). The arbitrary and capricious standard demands considerable deference to agency decisions and presumes the validity of the agency's action. Colorado Health Care Ass'n v. Colorado Dept. of Social Services, 842 F.2d 1158, 1164 (10th Cir.1988). The substantial evidence inquiry is whether the agency based its decision on relevant evidence a reasonable mind might accept as appropriate to support such a decision. Foust v. Lujan, 942 F.2d 712, 714 (10th Cir.1991).

The standard of review is very narrow. The reviewing court must affirm a reasoned decision which is supported by substantial evidence in the record. Shell Oil v. Costle, 595 F.2d 224 (5th Cir.1979). Judicial review is especially deferential where the agency interprets its own regulations. Robertson v. Methow Valley Citizen's Council, 490 U.S. 332, 358-59, 109 S.Ct. 1835, 1850-51, 104 L.Ed.2d 351 (1989). The agency has broad discretion when faced with conflicting technical opinions. Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1524 (10th Cir.1992). The reviewing court must affirm a reasoned decision which rests on a review of all relevant information, even if the reviewing court would not have reached the same conclusion. 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). The City here misconstrues the endpoint of judicial review. Were I to find the agency acted arbitrarily or outside the scope of its authority, I may order it to reconsider its decision in light of additional relevant information, but I may not impose a new decision on the agency. Florida Power & Light Co., 470 U.S. at 744, 105 S.Ct. at 1607.

B. Statutory Requirements

The Clean Water Act (hereinafter "Act") is a comprehensive statute designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through the reduction and eventual elimination of pollutant discharge into those waters. Clean Water Act § 101(a), 33 U.S.C. 1251(a). The Act anticipates a partnership between the federal government and the States in cleaning up the nation's waterways. Clean Water Act § 101(b), 33 U.S.C. § 1251(b). States are free to set water quality standards so as to force the development of technology. United States Steel Corp. v. Train, 556 F.2d 822, 838 (7th Cir.1977).

In 1987, Congress revised the Act, authorizing the EPA Administrator to treat Indian Tribes as States for the purposes of the Clean Water Act so long as the Tribes meet certain enumerated criteria. Clean Water Act § 518, 33 U.S.C. § 1377. A Tribe which meets the criteria listed in § 518(e), 33 U.S.C. § 1377(e) and 40 C.F.R. § 131.8(a), may submit an application to the EPA that includes: a statement that the Secretary of the Interior recognizes the Tribe; a statement documenting that the current Tribal governing body carries out substantial government functions; a description of the Tribe's authority to regulate water quality; a description of the Tribe's ability to administer a water quality standards program; and any additional information the Administrator may require. 40 C.F.R. § 131.8 (1992).

Upon receipt of the application, the Regional Administrator will notify appropriate government entities of the Tribe's application and the basis of the Tribe's authority to regulate water quality. The Administrator provides a thirty-day period to receive comments on the Tribe's assertion of authority. If comments challenge the Tribe's authority, the Regional Administrator, after consulting with the Secretary of the Interior, shall determine whether the Tribe meets the requirements of 40 C.F.R. § 131.8(a)(3) (1992...