Friends of the Earth v. U.S. E.P.A.

• Decision Date: 29 November 2004
• Docket Number: Civil Action No. 04-0092 RMU.
• Citation: 346 F.Supp.2d 182
• Parties: FRIENDS OF THE EARTH, Plaintiff v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

346 F.Supp.2d 182

FRIENDS OF THE EARTH, Plaintiff v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civil Action No. 04-0092 RMU.

United States District Court, District of Columbia.

November 29, 2004.

COPYRIGHT MATERIAL OMITTED

Howard I. Fox, Earthjustice Legal Defense Fund, Washington, DC, for Plaintiff.

Scott Jeffrey Jordan, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the parties' cross motions for summary judgment. Friends of the Earth brings suit against the Environmental Protection Agency ("EPA") alleging that EPA's approval of the District of Columbia's proposed "total maximum daily loads" ("TMDLs") of pollutants for the Anacostia River violates the Clean Water Act and EPA's duty to act non-arbitrarily under the Administrative Procedure Act. The plaintiff claims that EPA acted improperly by (1) calculating TMDLs on an annual and seasonal basis rather than a daily basis, (2) approving TMDLs that achieve annual and seasonal but not daily water quality standards, and (3) assigning wasteloads to categories of sources instead of to individual point sources. EPA and intervenor District of Columbia Water and Sewer Authority (collectively, "defendants") move for summary judgment, arguing that EPA's decision should be upheld. Because the court finds the TMDL locution ambiguous in the context of the Clean Water Act as a whole, because sufficient evidence exists that the TMDLs were reasonably calculated to achieve daily water quality standards, and because the TMDLs subject point sources to specific percentage wasteload reductions, the court grants the defendants' motions for summary judgment.

II. BACKGROUND¹

A. Factual Background

Congress enacted the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The CWA attempts to achieve this goal in part by (a) establishing technology controls that regulate discharges into waterbodies and (b) promulgating water quality standards based on how a body of water should be used (for example, recreational or wildlife). 33 U.S.C. § 1311(b). These measures, known as "effluent controls," include technology-based abatement methods, such as filtration or recycling, and the issuance of permits by EPA. Id.

Because effluent controls alone may not prevent unsatisfactory pollution levels, Congress also mandated that the states promulgate water quality standards ("WQSs"). Id. § 1313(a). States must supplement these standards with "total maximum daily loads" for pollutants in a waterbody if effluent controls alone cannot achieve the WQSs. Id. at § 1313(d)(1)(C). A TMDL equals the maximum concentration of a pollutant in a waterbody for a given time and is calculated "at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." Id.; 40 C.F.R. § 130.2(i). EPA's regulations permit TMDLs to be expressed "in terms of either mass per time, toxicity, or other appropriate measure." 40 C.F.R. § 130.2(i). TMDLs encompass discharges from specific sites such as refineries along a river known as point sources, nonpoint sources such as runoff near a river due to land development, and naturally occurring or "natural background" pollutants. Id. EPA regulations describe a TMDL as the sum of the loading allotments for point sources of pollution ("wasteload allocations") and for nonpoint and natural background sources ("load allocations"). 40 C.F.R. §§ 130.2(e)-(i). EPA approves or disapproves a state's proposed WQSs and TMDLs by assessing their conformance with the CWA. 33 U.S.C. § 1313(d)(2).

In many cities, the District included, the combination of antiquated municipal sewage infrastructure and periodic long and heavy rains results in sewage overflow into adjacent waterbodies. Brief of Amici Curiae Ass'n of Metro. Sewerage Agencies et al. at 2-3. In 1987, Congress created a stormwater management control program to address this problem which allows flexible approaches to permitting for municipal storm sewer discharges under section 402(p) of the CWA. 33 U.S.C. § 1342(p) (1987). In 2000, Congress added section 402(q) to the CWA to provide that each permit issued for a discharge from a combined storm sewer conform to the EPA's Combined Sewer Overflow ("CSO") policy. The Weather Water Quality Act of 2000, Pub.L. 106-554, § 112(a), 114 Stat. 2763. EPA's CSO policy gives states and localities several options for managing sewage overflow from heavy rains. CSO Control Policy, 59 Fed.Reg. 18,688 (Apr. 19, 1994). These options include permitting processes for long-term plans that allow for various annual overflow events, unlike the uniform and regular daily load limits found in section 303(d). Id. at 18,692.

In 1998, the District of Columbia determined that the Anacostia River was in violation of the District's WQSs for dissolved oxygen and turbidity. EPA's Mot. for Summ. J. ("EPA's MSJ") at 3. Thus, in 2001, the District submitted and EPA approved annual TMDLs for dissolved oxygen. Id. at 8. Dissolved oxygen violations occur when decomposing pollutants create a biochemical oxygen demand ("BOD") in waterbodies that depletes oxygen necessary for aquatic life. Id. at 6-7. The District found that large rainfalls resuspend river sediment, thus causing chemical reactions that reduce oxygen levels. Id. at 16-17. Because the sediment remains chemically active for a number of years, the District concluded that measuring BOD load reductions in years would be appropriate. Id. EPA concurred with the District's decision to use the yearly figure, and the District used computer modeling to simulate river conditions and determine an annual BOD TMDL adequate to meet daily WQSs. Id. at 18-20.

In 2002, EPA proposed and finalized seasonal TMDLs for turbidity. Id. at 8. Turbidity violations occur when total suspended solids ("TSS") occlude waterbodies, causing murkiness which hinders recreational enjoyment and blocks light necessary for plant growth. Id. at 6-7. From a prior study involving the Anacostia River, EPA (1) established a 15 mg/L daily TSS concentration level necessary for protecting aquatic life, (2) concluded that TSS concentrations have an insignificant impact on aquatic life outside of the growing season, then (3) used an updated version of the computer model used by the District to calculate the TSS percentage reduction (77%) in the river necessary to achieve the TSS TMDL (a seasonal average daily concentration of 15 mg/L). Id. at 20-22.

B. Procedural History

In 2003, Friends of the Earth sued EPA in the D.C. Circuit, claiming that both the dissolved oxygen and the turbidity TMDLs were insufficient for achieving the District's WQSs and that EPA acted arbitrarily in approving them. Friends of the Earth v. EPA, 333 F.3d 184 (D.C.Cir.2003). The D.C. Circuit held that it lacked subject-matter jurisdiction and transferred the case here for review pursuant to the Administrative Procedure Act ("APA"). Id. at 193. In March 2004, the District of Columbia Water and Sewer Authority ("WASA"), the agency responsible for the District's TMDL proposals, moved and was permitted to intervene as defendant.

In May 2004, the plaintiff filed a motion for summary judgment contending that EPA's approval of annual and seasonal TMDLs violates the CWA's "express requirement to establish... `total maximum daily load [s].'" Pl.'s Mot. for Summ. J. ("Pl.'s MSJ") at 11 (emphasis in original). The plaintiff claims that, even if non-daily calculations are permissible, the TMDLs themselves violate the District's daily WQSs. Id. at 11-13. Finally, the plaintiff alleges that EPA violated its own regulations by not allocating TMDL wasteloads to individual point sources, but instead to categories of sources. Id. at 13. In June and July, EPA and WASA filed their own motions for summary judgment, contending that long-standing agency practice and statutory interpretation justify the calculation of non-daily TMDLs. EPA's MSJ at 8-9. They further claim that EPA's approval represents a reasonable judgment, within agency discretion, and based on the administrative record that the TMDLs will meet the District's daily WQSs. Id. They deny plaintiff's accusation that assigning wasteloads to categories instead of point sources violates EPA's regulations. Id. The court now addresses all parties' motions for summary judgment.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere...