Kingman Park Civic Ass'n v. U.S. E.P.A.

Decision Date31 August 1999
Docket NumberNo. CIV.A. 98-0758(CKK).,CIV.A. 98-0758(CKK).
PartiesKINGMAN PARK CIVIC ASSOCIATION, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
CourtU.S. District Court — District of Columbia

Howard Irving Fox, Earth Justice Legal Defense Fund, Ocean Law Project, Washington, DC, for plaintiffs.

Scott J. Jordan, United States Department of Justice, Environmental Defense Section, Washington, DC, Meredith Manning, United States Attorney's Office, Washington, DC, Stephania Shamet, Environmental Protection Agency, Philadelphia, PA, CarolAnn Siciliano, United States Environmental Protection Agency, Office of General Counsel, Washington, DC, for defendants.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Over twenty-five years ago, Congress enacted the Federal Water Pollution Control Act Amendments of 1972, an ambitious and comprehensive statute designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Pub.L. No. 92 500, § 101(a), 86 Stat. 816, 816 (codified as amended at 33 U.S.C. § 1251(a)). The 1972 Amendments were updated in the Clean Water Act of 1977 ("CWA"), Pub.L. No. 95-217, 91 Stat. 1566 (codified as amended at 33 U.S.C. §§ 1251 et seq.). Among the innovations that Congress introduced in the CWA was a mandate compelling states to establish for each of their most polluted waterways a Total Maximum Daily Load ("TMDL"), a measurement intended to regulate the discharge of pollutants into those bodies of water. See CWA § 303(d)(1), 33 U.S.C. § 1313(d)(1). The CWA required each state, including the District of Columbia, to submit by June 28, 1979 (no more than 180 days after the EPA identified certain pollutants pursuant to § 1314(a)(2)(D)) the first of its TMDL calculations to the Administrator of the Environmental Protection Agency ("EPA"). Within thirty days after this submission, the Administrator must take one of two actions. She may approve the TMDL, in which case it becomes binding on the states. If, however, she disapproves it, the Administrator must devise her own binding TMDL for the state within thirty days of disapproval. CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).

More than eighteen years after its first TMDL submission was due, the District of Columbia had yet to forward a single TMDL calculation to the EPA. Arguing that nearly two decades of silence and inaction from the District constitute a "constructive submission" that no TMDLs are necessary, Plaintiffs Kingman Park Civic Association and other organizations and individuals have brought suit under the CWA's citizen-suit provision, CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2), to compel the Administrator to disapprove the District's "submissions," and to order the Administrator to establish TMDLs for the District's polluted waters. In moving to dismiss the Plaintiffs' Amended Complaint, EPA presents a narrow issue: whether the District's eighteen-year recalcitrance constitutes a submission that triggers the Administrator's nondiscretionary duty under § 303(d)(2). After careful consideration, the Court holds that a state's consistent, longstanding failure to submit TMDL calculations can be construed as a submission that calls forth the Administrator's nondiscretionary duties under § 303(d)(2).

I. BACKGROUND

With its passage, the CWA "marked the ascendancy of water-quality control to the status of a major national priority," Monongahela Power Co. v. Marsh, 809 F.2d 41, 45-46 (D.C.Cir.1987). Its intricate structure and rich history have received exhaustive attention from many federal courts during the past quarter century, and need not be revisited here. See, e.g., Arkansas v. Oklahoma, 503 U.S. 91, 104-07, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 116-21, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202-09, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 287-98 (D.C.Cir.1981). Only the CWA's specific provisions at issue in this litigation require brief explication.

The CWA employs a variety of interrelated procedures to regulate water pollution. Among these, the National Pollutant Discharge Elimination System ("NPDES"), 33 U.S.C. § 1342, represents the CWA's primary mechanism for achieving and enforcing water-quality standards. Reduced to its essence, this regime prohibits discharges of pollutants from any "point source" — a discernable, confined, and discrete conveyance from which pollutants may be discharged — into the waters of the United States except as provided in an NPDES permit. See id. §§ 1311(a), 1362(12), (14).

Congress recognized, however, that the technology-based effluent limitations alone would fail to implement applicable water-quality standards. To supplement these limitations, Section 303(d) of the CWA establishes "a complex statutory scheme," of which there are two important components. EDF, 657 F.2d at 294. First, each state, including the District of Columbia, must identify waters where point source controls pursuant to the NPDES permitting system alone will be insufficient to meet proper water-quality standards applicable to those waters. See CWA § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A). These waters, known as "water quality limited segments," or simply "WQLSs," are then submitted to EPA for approved. WQLS submissions, popularly known as "303(d) lists," not only identify each WQLS, but also describe the specific pollutants affecting the water and rank each WQLS in order of priority. Since 1992, EPA has required each state to submit an updated "303(d)" list every two years. See 40 C.F.R. § 130.7(d)(1).

For each WQLS identified in the 303(d) list, a state must establish a Total Maximum Daily Loads ("TMDLs") consistent with the priority ranking set forth in the 303(d) list. TMDLs "set the maximum amount of a pollutant which can be contributed into a stream segment without causing a violation of the water quality standards." EDF, 657 F.2d at 294. By statute and regulation, the TMDL calculation must "be established 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." CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C); see also 40 C.F.R. § 130.7(c)(1)(ii).

So important is Section 303(d) to the CWA's overall structure that Congress compelled both the states and EPA to abide by strict, date-certain deadlines for submitting and implementing TMDLs. Within 180 days from the date that EPA first identified certain pollutants, see CWA § 304, 33 U.S.C. § 1314, each state was bound by statute to submit its WQLSs and corresponding TMDLs. Once each state submitted these TMDL calculations, the statute obliged EPA either to approve or to disapprove the TMDL. If approved, the TMDL is incorporated into the state's water-quality management plans under Section 303(e). In the event that EPA disapproves the state's TMDL submission, however, the agency inherits a nondiscretionary duty to establish acceptable TMDL calculations within thirty days from the date of disapproval; the EPA's TMDL is then incorporated into the state's Section 303(e) plan. See CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).

Because EPA neglected to promulgate its list of identified pollutants until December 28, 1978, 43 Fed.Reg. 60662 (1978), "the states' duty to submit TMDL calculations ... did not arise until June 28, 1979," EDF, 657 F.2d at 295; see also CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).1 From 1979 until 1994, the District of Columbia's response to its Section 303(d) obligations was absolute silence and intransigence. During that fifteen-year span, the District failed to submit a list of WQLSs, much less a single TMDL calculation. Not until 1994 did the District finally comply with its statutory duty under the CWA to submit a 303(d) list of WQLSs. It has since updated its list every two years as required by EPA regulations, albeit late each time. Yet, notwithstanding this modest and belated compliance, the District continued to ignore its TMDL obligations. More than 18 years after the District's duty to submit its first TMDL calculation ripened, it had not yet offered any TMDL to EPA for review. Not until January 1998 — four months after Plaintiffs served their notice of intent to file this lawsuit — did the District submit a TMDL for Hickey Run, one of its 38 identified WQLSs. EPA subsequently informed the District that its Hickey Run TMDL was inadequate.

While the District has neglected its obligations under Section 303(d) for almost two decades, its waters have grown increasingly polluted. Today, sewage discharges into District waters contain unsafe levels of fecal coliform bacteria. In some cases, this fecal coliform bacteria exist in levels a thousand times greater than the maximum safe-level for swimming. See District of Columbia Consumer and Regulatory Affairs, Environmental Regulation Admin., The District of Columbia Water Quality Assessment at 211 (1996) [hereinafter Water Quality Assessment] (Pls.' Exs. C & E). Beyond fecal coliform, District waters boast unhealthy amounts of toxics, organic compounds, pathogens, bacteria, metals, nutrients, and oil and grease to name a few. Toxic pollutants have accumulated in sediments, are ingested by fish, and are ultimately ingested by District residents, who may, according to some studies, face an increased risk of cancer. See D. Velinsky & J. Cummins, Distribution of Chemical Contaminants in Wild Fish Species in Washington, D.C., ICPRB Rep. No. 94-1 (June 1994), at 62-67 (Pls.' Ex. D) D.C. Commissioner of Public Health Urges Limited Consumption of Fish Caught in D.C. Waters, D.C. Gov't News Release, Nov. 15, 1994 (Pls.' Ex. E); Water Quality...

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