Alaska Center for the Environment v. Reilly, C90-595R.

• Decision Date: 08 June 1992
• Docket Number: No. C90-595R.,C90-595R.
• Citation: 796 F. Supp. 1374
• Parties: ALASKA CENTER FOR THE ENVIRONMENT, Northern Alaska Environmental Center, Southeast Alaska Conservation Council, and Trustees for Alaska, Plaintiffs, v. William K. REILLY, Administrator, United States Environmental Protection Agency, Dana Rasmussen Regional Administrator, and EPA Region X, Defendants.
• Court: U.S. District Court — Western District of Washington

796 F. Supp. 1374

ALASKA CENTER FOR THE ENVIRONMENT, Northern Alaska Environmental Center, Southeast Alaska Conservation Council, and Trustees for Alaska, Plaintiffs, v. William K. REILLY, Administrator, United States Environmental Protection Agency, Dana Rasmussen Regional Administrator, and EPA Region X, Defendants.

No. C90-595R.

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

June 8, 1992.

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

Susan L. Barnes, U.S. Attorney's 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 TO COMPEL DEFENDANTS TO PERFORM THEIR MANDATORY DUTIES UNDER SECTION 303(d) OF THE CLEAN WATER ACT

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on plaintiffs' motion to compel defendants to perform their mandatory duties under Section 303(d) of the Clean Water Act. Having reviewed the motion, all documents filed in support and in opposition, all supplemental memoranda and declarations, and having twice heard oral argument, the court finds and rules as follows:

I. BACKGROUND

Plaintiffs Alaska Center for the Environment, et al. (collectively "ACE"),¹ filed this citizen suit to require the United States Environmental Protection Agency ("EPA") to fulfill its statutory obligation to implement water quality protection measures in Alaska. Plaintiffs' previous motion for partial summary judgment was granted by this court on April 15, 1991.²

A. EPA's Duties under the Clean Water Act.

Congress passed the Federal Water Pollution Control Act (commonly known as the Clean Water Act, "CWA") in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. § 1251(a). This court described the EPA's regulatory program for water protection under the Act in its Order of April 15, 1991. See, Alaska Center for Env't v. Reilly, 762 F.Supp. 1422, 1424-1425 (W.D.Wash.1991).

This court found that the CWA requires the EPA to identify "water quality limited segments" if a state's submissions are inadequate, or if a state has not taken action. Alaska Center for Env't v. Reilly, 762 F.Supp. at 1429.³ This court further found that in the face of Alaska's inaction, § 303(d) of the CWA imposed a nondiscretionary duty on the EPA to promulgate pollution limits called "total maximum daily loads" (TMDLs) for waters designated as water quality limited segments. Id. at 1429.⁴ This court's Order of April 15, 1991 required the EPA to initiate its own process of identifying water quality limited segments and establishing TMDLs in accordance with a priority ranking of those water bodies. Id. at 1429.

B. EPA's Progress in Initiating the TMDLs Process.

In July of 1990, Alaska submitted to the EPA a list of 48 water quality limited segments. The EPA partially approved Alaska's list on September 10, 1991. See, "Partial Approval of Alaska's Identification of Water Quality-Limited Segments," Exhibit C, Defendants' Memorandum in Support of Motion for Partial Summary Judgment. As a condition to the partial approval, the EPA requested that more information about additional water bodies suspected of being polluted be included in Alaska's 305(b) report, due in April of 1992.⁵

On January 27, 1992, the EPA Region X Administrator, Dana A. Rasmussen, and the Commissioner of the Alaska Department of Environmental Conservation ("ADEC"), John A. Sandor, signed a Memorandum of Understanding ("MOU") regarding the implementation of a TMDLs program in Alaska. Supplemental Declaration of Richard G. Albright, at 2, ¶ 3. According to the EPA, the MOU formalizes the agreement reached between the EPA and the ADEC after "many months of negotiations," and identifies the responsibilities to be carried out by each agency over the next two years. Id. at 2, ¶¶ 4, 5.

The MOU was agreed upon after plaintiffs filed this motion to compel the EPA to perform its mandatory duties under the CWA. Through supplemental memoranda, plaintiffs have altered their demands to incorporate the progress made by the MOU. Nevertheless, plaintiffs contend that the MOU does not adequately fulfill the EPA's statutory obligation to implement the TMDLs program. Plaintiffs assert that the process outlined in the MOU falls short of providing the requisite assurance that TMDLs will be established for all waters designated as water quality limited segments. Plaintiffs further contend that the MOU will in fact contribute to further delay in fully implementing a TMDLs program in Alaska.

Plaintiffs therefore move to compel the EPA to: (1) approve or disapprove Alaska's revised April 1, 1992 list of water quality limited segments by July 1, 1992; (2) promulgate its own list of water quality limited segments within 30 days, if the EPA disapproves the list; (3) establish, or review and approve the State's establishment of, TMDLs for each of the representative waters identified in the MOU by a date certain; (4) propose, and submit to the court, a schedule for the establishment of TMDLs for all waters designated as water quality limited segments; and, (5) generate a plan for ambient water quality monitoring in Alaska, and a schedule for the implementation of such a plan. Plaintiffs further request that the court retain jurisdiction over this case for the next five years to ensure compliance with the court's order.

II. DISCUSSION

The Supreme Court has held that the CWA citizen suit provision allows a district court to "order the relief it considers necessary to secure prompt compliance with the Act." Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 1807, 72 L.Ed.2d 91 (1982). The Court explained that the "exercise of equitable discretion, which must include the ability to deny as well as grant injunctive relief, can fully protect the range of public interests at issue ..." Id. at 320, 102 S.Ct. at 1807; See also, Amoco Prod. Co. v. Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987) (acknowledging the "important role of the public interest in the exercise of equitable discretion").

The Ninth Circuit has also noted that "an injunction is not necessarily made overbroad by extending the benefit or protection to persons other than the prevailing parties — even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled." Bresgal v. Brock, 843 F.2d 1163, 1170-1171 (9th Cir.1987) (emphasis in the original). A district court has the discretion to fashion an appropriate remedy when the EPA fails to perform a mandatory duty. Sierra Club v. Ruckelshaus, 602 F.Supp. 892, 898-899 (N.D.Cal.1984) (ordering the EPA to issue final standards for radionuclide emissions within 90 days, after EPA's failure to adhere to statutory deadlines under the Clean Air Act).

The EPA claims that plaintiffs have not shown that they are entitled to injunctive relief. The EPA contends as follows: (1) that the remedy plaintiffs seek lies outside the court's jurisdiction; (2) that the court is not authorized to review the content of administrative action, or to engage in ongoing review of agency action; (3) that plaintiffs have not exhausted their administrative remedies; (4) that judicial oversight of the TMDLs process as proposed by plaintiffs would violate the separation of powers doctrine; and, (5) that plaintiffs have not shown injury due to the EPA's failure to implement a TMDLs program in Alaska sufficient to support injunctive relief.

The court finds the EPA's arguments unpersuasive. In citizen suits against the EPA courts have not required the kind of proof which the EPA argues is necessary before ordering the Agency to perform its mandatory duties. See, New York v. Gorsuch, 554 F.Supp. 1060, 1066 (S.D.N.Y. 1983) (ordering the EPA to comply with its statutory duty to promulgate emissions standards in a suit brought under the Clean Air Act's citizen suit provision); Sierra Club v. California, 658 F.Supp. 165, 175 (N.D.Cal.1987) (ordering the EPA to promulgate regulations for nitrogen oxides under the Clean Air Act); Sierra Club v. Gorsuch, 551 F.Supp. 785, 789 (N.D.Cal. 1982) (ordering the EPA to propose emission standard within 180 days).

Moreover, the Supreme Court has found that environmental injury is uniquely deserving of injunctive relief: "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987).

In this court's Order of April 15, 1992, granting plaintiffs' motion for summary judgment, this court found that § 303(d) of the CWA imposed a nondiscretionary duty on the EPA to promulgate TMDLs in the face of state inaction. Alaska Center for Env't v. Reilly, 762 F.Supp. 1422, 1429 (W.D.Wash.1991). The court specifically noted that the "details of this process will be worked out with the court at a future date." Id. at 1429 (emphasis added). The parties have made limited settlement progress during the year that has passed since the court's Order, and the EPA has taken only tentative steps to implement the TMDLs process to date.

The EPA allowed over a decade to pass before taking even these first steps towards implementing the Alaskan TMDLs program. This delay has rendered TMDLs completely useless to date as a tool to control water pollution in Alaska. The failure of the EPA to perform its mandatory duties has frustrated congressional intent underlying the TMDL provisions of the CWA. ACE has no adequate remedy other than a court order requiring the EPA to perform...