Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency

• Decision Date: 21 September 2020
• Docket Number: Civil No. 16-1861 (JDB)
• Citation: 490 F.Supp.3d 190
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

490 F.Supp.3d 190

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,

v.ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civil No. 16-1861 (JDB)

United States District Court, District of Columbia.

Signed September 21, 2020

Hope Madeline Babcock, Georgetown University Law Center, Peter J. DeMarco, Natural Resources Defense Council, Washington, DC, for Plaintiff.

Heather E. Gange, Eileen T. McDonough, Justin D. Heminger, U.S. Department of Justice, Washington, DC, for Defendant Environmental Protection Agency.

Heather E. Gange, Eileen T. McDonough, U.S. Department of Justice, Washington, DC, for Defendants Andrew Wheeler, Cosmo Servidio.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff Natural Resources Defense Council, Inc. ("NRDC") has moved under Federal Rule of Civil Procedure 54(b) for the Court to reconsider its 2018 decision giving defendant Environmental Protection Agency ("EPA") discretion as to how to establish a new total maximum daily load ("TMDL") for trash in the Anacostia River. NRDC contends that little progress has been made since that 2018 decision and that the Court should require EPA to have a TMDL in place within one year. EPA opposes, arguing that development of the TMDL is continuing apace and that NRDC has not met the high standard for reconsideration under Rule 54(b). For the reasons that follow, the Court agrees with EPA and will deny the motion. However, given the slow pace of development to date, the Court will require EPA to submit status updates every three months going forward.

Background

I. The Clean Water Act

The Clean Water Act, passed in 1972, requires states and the District of Columbia to "institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) ; see 33 U.S.C. § 1313(a) – (c). The Act embodies a "cooperative federalism framework" whereby the states and EPA "work[ ] together to clean the Nation's waters." Am. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 288 (3d Cir. 2015). At issue in this case is one component of that complex statute, calling for the establishment of a "total maximum daily load" of pollutants in certain waters. See 33 U.S.C. § 1313(d)(1)(C).

The creation of a TMDL is just one part of a multistep process, with each step "placing primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the EPA." Am. Farm Bureau Fed'n, 792 F.3d at 289. At the first step in the process, a state is required to identify a given waterbody's "designated use[ ]," such as recreation or wildlife preservation. See Nat. Res. Def. Council v. EPA ("NRDC I"), 301 F. Supp. 3d 133, 136–37 (D.D.C. 2018) (quoting 33 U.S.C. § 1313(c)(2)(A) ). The state must then set a target water quality based on that use. See id. at 137. At this point, EPA must either approve or disapprove the water quality standards; if EPA disapproves, it must set its own standards for the waterbody. See 33 U.S.C. § 1313(a)(3)(A)-(C) & (b).

Next, the state must "identify those waters within its boundaries" that do not meet the established water quality standards, otherwise known as impaired waters. Id. § 1313(d)(1)(A). For those impaired waters, the Act requires, in the first instance, states—not EPA—to establish a TMDL for the pollutants causing the impairment. Id. § 1313(d)(1)(C). The TMDL must be set "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.; see Nat. Res. Def. Council v. Muszynski, 268 F.3d 91, 94 (2d Cir. 2001) ("In effect, a TMDL posts a limit on the total amount of a pollutant a waterbody may receive over a period of time."). Once a state has established a TMDL for the pollutants in a given waterbody, the state must submit the TMDL to EPA for approval. See 33 U.S.C. § 1313(d)(2). Here again, EPA must either approve or disapprove the state TMDL, this time within thirty days, and if EPA disapproves, it must establish its own federal TMDL within thirty days of that disapproval. Id.

The Act does not itself set a deadline for when a state is required to establish and submit a TMDL to EPA. It largely leaves that judgment up to the state, requiring only that the state submit TMDLs "from time to time," "in accordance with [the state's] priority ranking" for its waters, which must "tak[e] into account the severity of the pollution and the uses to be made of such waters." Id. § 1313(d)(1) & (2). In the years since the Act was enacted, courts have acknowledged that "TMDLs take time and resources to develop and have proven to be difficult to get just right." Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 14 n.8 (1st Cir. 2012) ; see, e.g., S.F. BayKeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002) ("The development of TMDLs to correct the pollution is obviously a more intensive and time-consuming project than simply identifying the polluted waters."); see also Am. Farm Bureau Fed'n, 792 F.3d at 308 (discussing portions of the Act's legislative history stating that developing a TMDL will be "time consuming and difficult").

Still, some courts have also recognized that, at some point, delay is unacceptable under the Act, and have established what is known as the "constructive submission" doctrine to identify when a delay becomes problematic. See Ohio Valley Envtl. Coal., Inc. v. Pruitt, 893 F.3d 225, 229 (4th Cir. 2018). Under that doctrine, "a prolonged failure ‘by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, which in turn triggers EPA's nondiscretionary duty to act’ "—that is, the duty to establish a federal TMDL within thirty days. Id. (quoting S.F. BayKeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002) ). The doctrine generally "applies only where a state ‘clearly and unambiguously’ expresses a decision not to submit TMDLs." Id. at 230 (quoting Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001) ). Courts endorsing this doctrine reason "that, without it, states could refuse to promulgate their own TMDLs and therefore easily frustrate" the Act. Id. at 229–30.

II. The Anacostia River

The Anacostia River, spanning more than 170 square miles, flows from Maryland to the District of Columbia. NRDC I, 301 F. Supp. 3d at 138. As required by the Act, Maryland and D.C. "have each established designated uses and water quality standards applicable to their portions of the Anacostia River." Id. Both jurisdictions determined that the river was impaired by trash pollution. See id. Therefore, between 2009 and 2010, they jointly developed a TMDL to limit the amount of trash in the Anacostia River and submitted it to EPA. See id. at 138–39. In reviewing the TMDL, EPA acknowledged that "[u]nlike most TMDLs, which are expressed in positive terms of the loads of a pollutant that may be added to a waterbody," the joint TMDL was "expressed in the negative, i.e., in terms of quantities of trash that must be captured, prevented from entering, or removed from the waterbody." Id. at 139 (quoting Admin. R. [ECF No. 26] at 3114). EPA nonetheless approved the TMDL on September 21, 2010. Id.

NRDC filed this suit in September 2016, challenging EPA's approval of the TMDL under the Administrative Procedure Act ("APA"). See id. at 140. NRDC eventually moved for summary judgment, arguing that by "set[ting] a minimum amount of trash that must be removed," instead of "setting a maximum daily amount of trash that can enter the river," the TMDL violated the Act's requirement that states set a "total maximum daily load" for the river. Id. On March 30, 2018, the Court agreed and granted NRDC's motion, concluding that the TMDL did "not establish a ‘maximum daily load’ within the plain meaning of that phrase." Id. at 145. The Court therefore vacated and remanded EPA's approval of the TMDL, staying vacatur "until such time as the EPA approves a replacement TMDL." See id. at 136, 145.

But the Court declined to grant NRDC's request that a specific deadline be imposed on EPA for the establishment of a new TMDL. See id. at 145. The Court "le[ft] it to EPA to decide whether to cooperate with [Maryland and D.C.] to develop a new trash TMDL, ... or instead to ‘disapprove[ ]’ the [existing] TMDL and thereby trigger the agency's statutory responsibility to establish a federal TMDL within thirty days." Id.

Rather than disapproving the existing TMDL, EPA opted to cooperate with Maryland and D.C., giving them primary responsibility for developing the replacement TMDL. See July 2, 2018 Status Report by Def. EPA [ECF No. 31] at 2. EPA has been submitting status reports to the Court every six months as to the state agencies’ progress in developing the new TMDL, with the most recent report having been filed on February 19, 2020.¹ See Feb. 19, 2020 Status Report by Def. EPA [ECF No. 41] at 1.

In January 2020, NRDC filed this motion for the Court to reconsider its 2018 decision and impose a one-year deadline on EPA to establish a TMDL, contending that the TMDL-development process was proceeding too slowly and "denying legally mandated protections to the river, the communities along its banks, and those who come to enjoy it." Pl.’s Mot. to Set a Deadline for Final Action on Remand ("Deadline Mot.") [ECF No. 39] at 1. Partway through briefing, NRDC served EPA with eight requests for document production and noticed a deposition of an EPA official who had filed a declaration in support of EPA's opposition. Nat. Res. Def. Council v. EPA ("NRDC II"), 2020 WL 2849624, at *1 (D.D.C. June 2, 2020). EPA then moved for a protective order, arguing that the discovery sought was improper. See id. at *2. The Court denied that motion and permitted NRDC to conduct very limited discovery. See id. at *1. In the...