Envtl. Law & Policy Ctr. v. U.S. Envtl. Prot. Agency
| Decision Date | 11 April 2018 |
| Docket Number | Case No. 3:17CV01514 |
| Parties | Environmental Law and Policy Center, et al., Plaintiffs, v. United States Environmental Protection Agency, et al. Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
The Water Department of the City of Toledo, Ohio, provides water to about 500,000 persons living in that City and elsewhere in Northwest Ohio. For three days in August 2014, those people were without water. (A.R. 2085).1 Shortly after the City gave notice that its water was not fit to drink (or use for any other household purpose) bottled water in grocery and convenience stores, gas stations, and other outlets was quickly sold out.
Toledo's water was contaminated by microcystin-a toxin produced by Harmful Algae Blooms (HABs) growing near the City's water intake point and elsewhere in the Western Basin of Lake Erie.
Microcystin is dangerous. It "causes diarrhea, vomiting and liver-functioning problems, and readily kills dogs and other small animals that drink contaminated water."2 And one need not ingest the toxin to experience ill-effects; the Ohio Environmental Agency (Ohio EPA) reportsthat mere skin contact with a mirocystin-laden HAB can cause "numbness, and dizziness, nausea . . . skin irritation or rashes." (A.R. 2085).
Over the past decade, HABs have increasingly taken hold in the western third of Lake Erie. Up close, these toxic growths "look like film, crust . . . spilled paint, pea soup," "or green cottage cheese curd" on the water's surface.3
The view from afar is equally dramatic. Lake Erie's 2015 HAB, for example, "was the largest on record . . . . le[aving] behind a thick, paint-like scum that covered an area roughly the size of New York City" (A.R. 2329):
Image materials not available for display.(Image taken from Summary of Ohio's new HAB Rules and Drinking Water Response Strategy, pg. 11 of 36, Ohio Environmental Protection Agency Webinar published June 7, 2016).4
The principal cause of Lake Erie's now perennial HAB is phosphorus runoff from fertilizer, farmland manure, and, to a lesser extent, industrial sources, and sewage treatment plant discharges. The Maumee River, boasting the largest drainage area of any Great Lakes river, is the major tributary flowing into the Western Lake Eire Basin. Its watershed encompasses Northwestern Ohio and parts of Northeastern Indiana-with Northwest Ohio's farmland having a principal role in Ohio's agricultural industry, among the most important in the State. Other Lake Erie tributaries-the Huron and Vermillion Rivers among them, also drain agricultural areas of Northwest Ohio.
The major federal legislation intended to safeguard these waters is the Clean Water Act (CWA) 33 U.S.C. § 1251 et seq.
The CWA requires the Ohio EPA to submit a biennial Report to the U.S. EPA identifying waters within the State's borders that fail to meet Ohio's water quality standards. 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. §§ 130.7(b)(3), (d). The U.S. EPA can approve the Report "only if" the Ohio EPA "assemble[s] and evaluate[s] all existing and readily available water quality-related data and information" concerning these impaired waters, 40 C.F.R. §§ 130.7(d)(2), (b)(5).
For certain limited areas of Lake Erie, the Ohio EPA has done that. The State Agency has, for example, included "portions" of Lake Erie on its list of impaired waters since 2004. (Doc. 26-1, ID 8983). Further, following the 2014 Toledo water crisis, the Ohio EPA also "beganassessing and listing portions of the Lake Erie shoreline," including some (but not all) of the State's water intake points as impaired for "public drinking water supply." (Id.).
But historically, the State has also restricted its testing areas, with "assessment units" extending only "100 meters from the shore," and encompassing a "500-yard radius" around the public water intake points "associated with the nearest shoreline unit[.]" (Doc. 1-7, ID 141).5 The Ohio EPA has routinely failed to assess Lake Erie's open waters-those "beyond the shoreline and drinking water intake[]" areas and site of the recurring toxic algae bloom. (Doc. 1-7, ID 164).
Ohio's persistent failures came to a head in 2016.
That year, in its Report to the U.S. EPA, the Ohio EPA explicitly refused to "assemble and evaluate all existing and readily available water quality-related data and information" concerning Lake Erie's open waters. 40 C.F.R. § 130.7(b)(5). Its rebuke put the U.S. EPA in a difficult position; the Federal Agency could approve the State's impaired waters list "only if" the Ohio EPA met its CWA obligations. 40 C.F.R. § 130.7(d)(2). Given the State's admitted refusal to meet those obligations, an outside observer might have expected the U.S. EPA to disapprove the State's impaired waters list, and with it, the 2016 Report.
But it did not.
Instead, the U.S. EPA approved Ohio's impaired waters list and its 2016 Report, and "deferred to the State's judgment not to assess the open waters of the Western Basin of Lake Erie," (A.R. 3371), the same waters where Toledo's Water Department detected "cyanotoxins . . . recognized to be a hazard to humans, animals and ecosystems" just two years earlier. (A.R. 2728).
Plaintiffs in this case challenge the U.S. EPA's approval of Ohio's 2016 impaired waters list under the Administrative Procedure Act (APA). See 5 U.S.C. § 704. They dispute the continuing failure of the Ohio EPA and the U.S. EPA to perform their mandatory duties under the CWA, if not entirely, then at least rigorously and effectively.
Pending are the parties' counter-motions for summary judgment. (Docs. 18, 21, 22).
I begin my adjudication of the motions with an overview of the CWA's requirements and the Agencies' substantial noncompliance, beginning in 2012, with those requirements. Next, I relate developments in this case since shortly before the plaintiffs filed their motion and thereafter.
For the reasons that follow, I: 1) deny plaintiffs' motion for summary judgment, without prejudice; 2) hold my ruling on defendants' motion for summary judgment in abeyance; 3) remand, while retaining jurisdiction over this case, to the U.S. EPA for action consistent with this Order; and 4) timetable dates for status report(s) and a status conference.
The CWA "is a comprehensive water quality statute designed to 'restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)). Acooperative statute, the CWA "establishes distinct roles for the Federal and State Governments" in reducing pollution. Id.
On the federal level, "the Administrator of the Environmental Protection Agency . . . is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources." Id. (citing 33 U.S.C. §§ 1311, 1314). Not all pollutants, however, enter the water through "discernable . . . and discrete" point sources, such as discharges from industrial pipes or sewerage treatment plants. Am. Paper Institute, Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (citing 33 U.S.C. § 1362(14) (brackets omitted)); see also Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp.2d 210, 214 (D. D.C. 2011).
"Sediments and other biological materials can easily accumulate in rivers through normal ecological processes," such as erosion and drainage. Anacostia Riverkeeper, 798 F. Supp.2d at 214. "Many toxins," including phosphorous, can also "enter[] water systems through runoff from agricultural land." Id. "Unlike point source pollutants, EPA lacks the authority to control [these] non-point source discharges through a permitting process." Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir. 2005). Congress instead assigned that task to the states, who enjoy "the primary responsibilit[y] and right[] . . . to plan the development and use of [their] land and water resources." 33 U.S.C. § 1251(b).
CWA § 303 requires states "to institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1, 511 U.S. at 704 (citing 33 U.S.C §§ 1311(b)(1)(C), 1313)). A state's water quality standards "have two primary components:" first, "designated 'uses' for a body of water (e.g., public water supply, recreation,agriculture)" and second, a set of water quality "'criteria' specifying the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses." Am. Paper, 996 F.2d at 349 (citing 33 U.S.C. § 1313(c)(2)(A)).
A lake's "designated use" is exactly what it sounds like-a description of "the manner in which . . . waters are to be utilized by governments, persons, animals, and plants." Anacostia Riverkeeper, 798 F. Supp.2d at 215 (footnote omitted). Ohio EPA, for instance, designates Lake Eire for use as an "exceptional warmwater habitat," a "public water supply, agricultural water supply, industrial water supply," and for recreational "bathing." Ohio Admin. Code § 3745-1-31(A).
"Water quality criteria, on the other hand, are measures of the conditions of a water body." Anacostia Riverkeeper, 798 F. Supp.2d at 215. They can be expressed either as "specific numerical limitations on the concentration of a specific pollutant in the water (e.g., no more than .05 milligrams of chromium per liter) or more general narrative statements applicable to a wide set of pollutants (e.g., no toxic pollutants in toxic amounts.)." Am. Paper, 996 F.2d at 349 (footnote omitted). Most relevant to the instant dispute is Ohio's narrative criteria regarding algae, which declares that "all surface waters . . . shall be . . . [f]ree from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae." Ohio Admin. Code § 3745-1-04(E).
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