Chesapeake Bay Foundation v. Virginia State Water

• Decision Date: 29 July 1980
• Docket Number: Civ. A. No. 77-0376-R.
• Citation: 495 F. Supp. 1229
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CHESAPEAKE BAY FOUNDATION, INC. and Citizens Against the Refinery's Effects, Inc., Plaintiffs, v. VIRGINIA STATE WATER CONTROL BOARD et al., Defendants.

495 F. Supp. 1229

CHESAPEAKE BAY FOUNDATION, INC. and Citizens Against the Refinery's Effects, Inc., Plaintiffs, v. VIRGINIA STATE WATER CONTROL BOARD et al., Defendants.

Civ. A. No. 77-0376-R.

United States District Court, E. D. Virginia, Richmond Division.

July 29, 1980.

Patrick M. McSweeney, McSweeney, Stutts & Burtch, Richmond, Va., Bruce J. Terris, Washington, D. C., Betty C. Higginbotham, Staff Atty., Chesapeake Bay Foundation, Annapolis, Md., for plaintiffs.

Norman Olitsky, Portsmouth, Va., Steven Lieberman, City Atty., and Stuart E. Katz, Asst. City Atty./Portsmouth, Portsmouth, Va., for intervening defendants.

Frederick S. Fisher, Asst. Atty. Gen., Gerald L. Baliles, Richmond, Va., J. Michael Hines and John Feore, Washington, D.C., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiffs, Chesapeake Bay Foundation, Inc. ("Chesapeake Bay") and Citizens Against the Refinery's Effects ("CARE"), instituted this action to challenge the issuance of a discharge permit to the Hampton Roads Energy Company ("HREC") by the Virginia State Water Control Board ("State Board").

Plaintiffs are non-profit organizations dedicated to conservation and environmental protection. Chesapeake Bay is a Maryland corporation which owns property adjoining the Chesapeake Bay. Its members enjoy that body of water for fishing, swimming, boating and other activities. CARE is a corporation organized under the laws of Virginia. CARE's membership consists primarily of residents of the Tidewater section of Virginia. CARE members claim to enjoy the use of the Chesapeake Bay and other navigable waters relevant to this action.

Defendant State Board is an agency of the Commonwealth of Virginia. Regulating the discharge of pollutants into the state's waters is one of the State Board's responsibilities.

Defendant HREC is a Delaware corporation. HREC intends to construct a petroleum refinery and marine terminal at Portsmouth, Virginia. In order to operate the refinery, HREC is required to obtain a National Pollutant Discharge Elimination System permit. HREC sought and obtained that permit and it is the validity of its issuance which is the focus of this action.

The United States of America and Douglas M. Costle, Administrator of the United States Environmental Protection Agency ("EPA") were originally joined as defendants in this action. They were dismissed by orders of February 28 and June 28, 1978. Dismissal was prompted by the Court's reasoning that the federal defendants either were not responsible for the conduct complained of or that their actions were beyond the review of this court.

By order of November 11, 1977 the Court permitted the City of Portsmouth, Virginia and The Hampton Roads Building and Construction Trades Council to intervene in this action as defendants. The City of Portsmouth, Virginia is a municipal corporation and it actively solicited the construction of the HREC facilities within its jurisdiction. Hampton Roads Building and Construction Trades Council is an affiliation of labor organizations whose membership would purportedly benefit from construction of the refinery and marine terminal.

Jurisdiction over the subject matter of this action is claimed under 28 U.S.C. § 1331. Each of the parties have moved for summary judgment, representing to the Court that there is no genuine dispute of material fact. The parties have filed exhaustive memoranda in support of their respective positions. The Court, on March 20, 1980, solicited supplemental memoranda regarding specific issues, and those memoranda have been submitted. The Court also entertained the oral argument of counsel on several occasions. The matter is thus ripe for disposition.

The HREC permit is a national pollutant discharge elimination system ("NPDES") permit which was issued by the State Board. The Federal Water Pollution Control Act ("the Act") was amended in 1972 to allow the states the opportunity to obtain NPDES permitting authority. The Act contains a general prohibition of pollutant discharges except in accordance with an NPDES permit.

HREC applied for its NPDES permit on October 19, 1976. The refinery is expected to discharge approximately 466,000 gallons of treated effluent into the Elizabeth River each day. HREC hopes to process 175,000 barrels of oil daily at the refinery. In addition to the effluent, it has been estimated that 0.01% of the crude oil and refined petroleum processed by the refinery will be spilled into the Elizabeth River during shipping and handling.

The HREC application was initially considered by a special task force created by the State Board. The task force was composed of representatives of several state agencies, including The Virginia Institute of Marine Science. On November 11, 1976, the State Board issued a draft permit which was based upon the task force's evaluation of HREC's application.

A public hearing on the draft permit was held in Portsmouth, Virginia on December 9, 1976. Over 700 persons attended the hearing. Approximately fifty persons addressed the State Board, including, inter alia, State Board staff members, HREC representatives, residents of Portsmouth and representatives of the plaintiffs. The State Board advised those in attendance that it would accept additional written comments until January 4, 1977.

Representatives of the EPA also appeared at the Portsmouth hearing. The EPA conveyed its position as not objecting to the issuance of the draft permit. The State Board was formally advised of the EPA's position on January 28, 1977.

The State Board considered the HREC application at its January 31, 1977 meeting. No action was taken at that time. The State Board again convened on February 18, 1977. At this second meeting the State Board considered and approved an oil spill condition which was to be incorporated into the draft permit. The draft permit, as amended, was then approved by the State Board.

The oil spill condition requires HREC to submit an acceptable plan for the prompt containment, clean-up and removal of oil spills associated with the refinery. HREC may not discharge pursuant to the permit until after the oil spill plan is approved by the State Board. The permit imposed other conditions upon HREC's discharge, as well: There is an absolute prohibition of any discharge in violation of the state's water laws. The permit requires HREC to install a waste treatment system utilizing an ultraviolet ozonation process. HREC must also permit the State Board staff to review the treatment performance on a continuing basis.

On March 16, 1977 the plaintiffs petitioned the EPA to exercise its right to veto the HREC permit. The plaintiffs then indicated their intention to seek judicial relief if the EPA's position remained unchanged. Plaintiffs filed this action on June 30, 1977.

Plaintiffs' claims II, III and IV survive the previously addressed motions to dismiss. In claim II plaintiffs allege that the State Board violated the Act, and its own and the EPA's regulations by failing to ensure that the refinery's discharge will not exceed the total maximum daily pollution loads for the Elizabeth River. Claim III asserts that the record does not contain substantial evidence to support the State Board's conclusion that the discharge will not violate the applicable water quality standards. Plaintiffs' claim IV contends that the State Board's procedures violated federal and state law, the Fourteenth Amendment to the United States Constitution and the EPA's regulations.

THE NPDES PROGRAM

The Act's 1972 amendments constituted a significant change in both the strategy and method for controlling and eliminating water pollution. After 1972 the Act no longer placed primary emphasis upon ambient water quality. Pollution control strategy began to focus, instead, upon the components and amounts of discharge into navigable waters. The method of enforcement was consequently altered, as well. A violation could now be determined by monitoring individual discharges rather than having to discover an offending point source.

The NPDES program was adopted as the primary means of implementing the Act's effluent limitations and standards of performance and to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act prohibited any person from discharging pollutants into navigable waters except in accordance with an NPDES permit.

The EPA was initially entrusted with the responsibility for issuing NPDES permits. Congress did envision a major role for the states in the water pollution control effort, however. See, e. g., 33 U.S.C. § 1251(e). This is especially clear from the consideration of 33 U.S.C. § 1370 and 33 U.S.C. § 1342. The former section explicitly recognizes the rights of the states to adopt more stringent pollution control measures than those found in the Act. The latter section, which is § 402 of the Act, is particularly persuasive of the important role of the states. Section 402(b) provides that the states may assume the EPA's role in the NPDES permit-issuing process. It is difficult to read § 402 without concluding that, "Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program". Shell Oil Company v. Train, 585 F.2d 408 (9th Cir. 1978).

The first step in obtaining NPDES authority is for the state to submit a proposed permit program to the EPA. If the proposed program satisfies § 402's requirements, the Administrator must give it his approval. Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282, 1285 (5th Cir. 1977), reh. den. 560 F.2d 1023 (1977). The EPA must thereafter cease its NPDES permit-issuing activities within ninety days. 33 U.S.C. § 1342(c). A state's administration of an NPDES program is indicative of Congress' intent to "recognize, preserve and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution . ....