Alaska Center for the Environment v. Reilly

• Decision Date: 15 April 1991
• Docket Number: No. C90-595R.,C90-595R.
• Citation: 762 F. Supp. 1422
• Parties: ALASKA CENTER FOR THE ENVIRONMENT, Northern Alaska Environmental Center, Southeast Alaska Conservation Council, and Trustees for Alaska, Plaintiffs, v. William K. REILLY, Administrator, the U.S. Environmental Protection Agency, EPA Region X, and Dana A. Rasmussen, in her capacity as Regional Administrator, Defendants.
• Court: U.S. District Court — Western District of Washington

762 F. Supp. 1422

ALASKA CENTER FOR THE ENVIRONMENT, Northern Alaska Environmental Center, Southeast Alaska Conservation Council, and Trustees for Alaska, Plaintiffs, v. William K. REILLY, Administrator, the U.S. Environmental Protection Agency, EPA Region X, and Dana A. Rasmussen, in her capacity as Regional Administrator, Defendants.

No. C90-595R.

United States District Court, W.D. Washington, at Seattle.

April 15, 1991.

Brian Faller, Seattle Law Enforcement, Utilities and Environmental Protection, Seattle, Wash., Michael Wenig, Anchorage, Alaska, for plaintiffs.

Susan L. Barnes, U.S. Attys. Office, Seattle, Wash., Christopher Scott Vaden, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on plaintiffs' motion for partial summary judgment. Having reviewed the motion, together with all documents filed in support and in opposition, having heard oral argument and being fully advised, the court finds and rules as follows:

Plaintiffs Alaska Center for the Environment, et al. (collectively "ACE"),¹ move for partial summary judgment against defendants U.S. Environmental Protection Agency, et al. (collectively "EPA"), on the issue of liability under the Clean Water Act. If the motion is granted, plaintiffs indicate they will file a motion to compel the EPA to perform its duties under § 303(d) of the Act pursuant to a schedule developed by the court.

I. FACTUAL BACKGROUND

Plaintiffs have filed this citizen suit to compel the EPA to perform what plaintiffs believe is a mandatory duty to implement certain water quality protection measures under the Clean Water Act ("CWA" or "the Act").

A. Water Pollution Regulation

Congress passed the Federal Water Pollution Control Act (commonly referred to as the CWA) in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Sec. 101(a), 33 U.S.C. § 1251. In order to achieve that objective, Congress declared as a "national goal" that "the discharge of pollutants into the navigable waters be eliminated by 1985." Id., § 101(a)(1).

EPA's regulatory program for water protection focuses on two potential sources of pollution: point sources and nonpoint sources. Point source pollution was addressed in the 1972 amendments to the Act, where Congress prohibited the discharge of any pollutant from any point source into certain waters unless that discharge complies with the Act's specific requirements. Secs. 301(a) and 502(12), 33 U.S.C. §§ 1311(a) and 1362(12). Under this approach, compliance is focused on technology-based controls for limiting the discharge of pollutants through the National Pollution Discharge Elimination System ("NPDES") permit process.

When these requirements are found insufficient to clean up certain rivers, streams or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters and designate them as "water quality limited." The states are then to establish a priority ranking for these waters, and in accordance with that ranking, to establish more stringent pollution limits called "total maximum daily loads" or "TMDLs." 33 U.S.C. §§ 1313(d)(1)(A), (C). TMDLs are the greatest amount of a pollutant the water body can receive daily without violating a state's water quality standard.

The TMDL calculations help ensure that the cumulative impacts of multiple point source discharges are accounted for, and are evaluated in conjunction with pollution from other nonpoint sources. States are then required to take whatever additional cleanup actions are necessary, which can include further controls on both point and nonpoint pollution sources. As a recent GAO report concluded, the TMDLs process:

provides a comprehensive approach to identifying and resolving water pollution problems regardless of the sources of pollution. If implemented, the TMDL process can provide EPA and the states with a complete listing of key water pollutants, the source of the pollutants, information on the amount of pollutants that need to be reduced, options between point and/or nonpoint approaches, costs to clean up, and situations where it may not be feasible to meet water quality standards.²

It is the TMDL regulatory process upon which this lawsuit focuses. The CWA sets out a very specific timetable and description of mandatory duties on the part of states and the EPA for the TMDL process. The court is being asked to clarify the scope of the EPA's duties under this section of the Act.

B. Duties of States and the EPA

Under § 303(d), states are required to submit lists of water quality limited segments and TMDLs to the EPA at certain times; the first such submission was due by June 26, 1979.³ Once such a submission is made, certain mandatory duties by EPA are triggered. Within 30 days, the EPA Administrator must review the state's submissions of the identified waters and the load allocations established under § 303(d)(1). Once approved by EPA, the identified waters and TMDLs are incorporated by the state into its continuing planning process established under § 303(e)(3).

If EPA disapproves the identification and/or TMDL, the agency has 30 days after disapproval to make its own identification of waters and establish TMDLs necessary to implement the applicable water quality standards. § 303(d)(2). The Act is silent as to the nature of EPA's obligations if a state, such as Alaska here, fails to make any initial submission at all.

C. History of the TMDLs Process in Alaska

As indicated, the first identification of "water quality limited" waters by the State of Alaska was required in 1979. Over ten years later, it is undisputed that the State has not submitted a single TMDL to the EPA. Moreover, the State and the EPA have failed to complete even the first stage of the TMDL process. Alaska's 1988 305(b) Report⁴ categorized several hundred distinct waterbodies as either "impaired" or "threatened" by water pollution. See Plaintiffs' Ex. G. However, only one segment from all these waterbodies has been identified as "water quality limited." There is no evidence that the EPA ever approved or disapproved that submission within the 30 day deadline.

The EPA directly commented on the State's failure again to include "water quality limited" segments in its 1990 305(b) report. See Plaintiffs' Ex. E, letter from Kriezenbeck. The EPA gave the State until June 30, 1990, to provide such a list.

Shortly after this suit was filed in April 1990, the State submitted to the EPA a revised list of 48 "water quality limited" segments. To date, the EPA does not appear to have approved or disapproved this list. Plaintiffs contend there is little hope that the State will begin to take the next step and establish TMDLs in a timely fashion. The State's 1990 305(b) Report notes that TMDLs have "not been attempted" and makes no promise to "attempt" them.

In comparison to Alaska's lack of progress in developing TMDLs, other areas of the country have a mixed record of success. In 1989, EPA Region IV approved 163 TMDLs, Region V approved 74, Region I approved 50, Region VIII approved 16, Region X approved 11. Regions II, III, and VII, however, approved no TMDLs. Pl.Ex. K.⁵

Plaintiffs now ask the court to direct the EPA to establish TMDLs in lieu of any meaningful action on the part of the State. Defendants oppose the motion, arguing that the EPA does not have a mandatory duty to establish TMDLs in the absence of a submission by the states. Defendants argue that in the absence of a nondiscretionary duty, plaintiffs are unable to pursue a citizen suit under § 505(a) of the Act, and therefore this court lacks jurisdiction to hear the case.

II. DISCUSSION

A. Summary Judgment Standard

A grant of summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the opposing party, that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630-31 (9th Cir.1987); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985). Here, the parties agree that there are no material facts in dispute; rather, the questions before the court are legal in nature. Thus, the matter is ripe for summary judgment.

B. Mandatory Duties of the EPA

Section 505(a) of the CWA authorizes citizens to bring suit in federal court against the EPA for failing to perform an "act or duty" under the CWA which is not discretionary. 33 U.S.C. § 1365(a). Plaintiffs invoke this section in their attempt to protect the waters of Alaska from further degradation in light of State regulatory inaction.

In determining whether the EPA has a mandatory duty under sec. 303(d) to establish TMDLs at this time, the court looks to traditional principles of statutory construction. "Proper statutory construction requires more than linguistic examination and review of the rules of statutory construction. The interpretation should be reasonable, and where the result of one interpretation is unreasonable, while the result of another interpretation is logical, the latter should prevail." Sierra Club v. Train, 557 F.2d 485, 490 (5th Cir.1977); Rosado v. Wyman, 397 U.S. 397, 414-5, 90 S.Ct. 1207, 1218-19, 25 L.Ed.2d 442 (1970). "In interpreting statutes, a court's function is to construe the language so as to give effect to the intent of Congress." Train, 557 F.2d at 489.

The mandatory TMDLs process requires that states identify those waters that are below certain quality limits; establish a priority ranking for those waters; and establish TMDLs in accordance with the priority ranking. 33 U.S.C. § 1313(d)(1).

The exact statutory language at issue is as follows:

(2) Each State shall submit to the Administrator from time

...