Natural Resources Defense Council v. USEPA

• Decision Date: 17 July 1991
• Docket Number: 3:91CV00165.,Civ. A. No. 3:91CV00058
• Citation: 770 F. Supp. 1093
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

770 F. Supp. 1093

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civ. A. Nos. 3:91CV00058, 3:91CV00165.

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

July 17, 1991.

David Sanburg Bailey, Richmond, Va., for Natural Resources Defense Council, Inc., et al.

Robert William Jaspen, U.S. Attorney's Office, Richmond, Va., for U.S.E.P.A., Edwin B. Erickson and William Reilly.

Manning Gasch, Jr., Joseph Marvin Spivey, III, Hunton & Williams, Richmond, Va., for Westvaco Corp., Chesapeake Corp. and Union Camp Corp.

David Ellis Evans, McGuire, Woods, Battle & Boothe, Richmond, Va., for American Paper Institute, Inc.

J. Joseph Curran, Jr., Denise Ferguson-Southard, Neile Sue Friedman, Baltimore, Md., for State of Md., Dept. of Environment.

Thomas R. Long, Richard L. Schmalz, New York City, for Westvaco Corp.

Russell S. Frye, Chadbourne & Parke, Matthew Van Hook, Washington, D.C., for American Paper Institute, Inc.

J.P. Causey, Jr., Richmond, Va., for Chesapeake Corp.

Edward C. Minor, Franklin, Va., for Union Camp Corp. Jon M. Lipshultz, Greer S. Goldman, U.S. Dept. of Justice, Environment and Natural Resources Div., Environmental Defense Section, Roland Dubois, Office of Gen. Counsel, U.S.E.P.A., Washington, D.C., Elizabeth Lukens, Office of Regional Counsel, U.S.E.P.A., Philadelphia, Pa., for defendants.

Robert W. Adler, Jessica C. Landman, Natural Resources Defense Council, Washington, D.C., for plaintiffs.

MEMORANDUM AND ORDER

SPENCER, District Judge.

Defendants seek partial dismissal of this suit under the Clean Water Act ("CWA"). Plaintiffs oppose this, and also seek to amend three paragraphs of their complaint, which defendants oppose in part. For the reasons that follow, the defendants' motion is GRANTED, and the plaintiffs' motion is GRANTED in part; the parties shall have an additional opportunity to further brief the propriety of part of the amended complaint.

I

Plaintiffs in this case¹ are the Natural Resources Defense Council, Inc. (NRDC), other environmental advocacy groups and individuals who claim standing based on their use of the Potomac River and adjacent waters. Defendants include the Environmental Protection Agency (EPA), its administrator William Reilly ("the Administrator"), and Edwin Erickson, the EPA administrator for Region III, which includes Maryland and Virginia.

Plaintiffs claim defendants have violated their duties under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., in two ways. First, they capriciously approved Maryland's ambient water quality standard for 2,3,7,8-Tetrachlorodibezo-p-dioxin ("dioxin"), a standard which "fails to protect human health and environmental quality and otherwise to meet the goals and purposes of the CWA. Second, plaintiffs claim the EPA administrator has violated his allegedly nondiscretionary duty under the CWA to fully develop and revise EPA's water quality criteria for dioxin to "reflect the latest scientific knowledge" about dioxin. This allegedly "affected" Maryland's illegal promulgation of a dioxin water quality standard, and EPA's approval of it.

The allegations may be broken down more specifically as follows.

EPA Dioxin Criteria

Pursuant to the CWA and a consent decree entered in prior litigation involving the NRDC, the EPA promulgated water quality criteria for dioxin on February 15, 1984. See 49 Fed.Reg. 5831 (1984). The criteria are summarized in an EPA looseleaf publication commonly known as the "Gold Book."

The Gold Book states that EPA belives any dioxin contamination of water or aquatic organisms ingested by humans would produce some cancer-causing or other toxic effects. It also states that a zero contamination level "may not be an attainable level," and estimates the increased cancer risks at specified water contamination levels as follows: 0.0013 ppq (parts per quadrillion) for risk of one additional cancer over the lifetime of 10 million exposed persons; 0.013 ppq for one in a million cancer risk level; and 0.13 ppq for 1 in 100,000 cancer risk level.

The dioxin water quality criteria document and other EPA publications also describe identifiable non-cancer human risks of dioxin exposure, such as reproductive and developmental toxicity and liver damage. The EPA found insufficient data to develop national criteria for the effects of dioxin on aquatic toxicity.

The EPA has not proposed or published revisions to these criteria documents, despite the development of "significant new information ... calling into question the validity of EPA's criteria." The information includes data demonstrating that: 1) EPA's assumptions regarding human consumption of fish and shellfish were far too low; 2) the rate of dioxin accumulation in aquatic life is much higher than EPA had assumed; 3) non-cancer health risks of dioxin "may be higher" than EPA assumed for purposes of its 1984 document; and 4) the toxicity of dioxin to fish and aquatic life, and animals higher in the same food chain, is higher than reported in the 1984 document.

EPA nevertheless published regulations as recently as April 1990 indicating that it will continue to adopt a 0.013 ppq dioxin water quality standard when it is responsible for adopting state water quality criteria. See 55 Fed.Reg. 14351 (1990).

Maryland's Dioxin Standards

On November 3, 1989, Maryland proposed revisions to the water quality criteria for dioxin and other pollutants. Maryland adopted a 1.2 ppq standard for dioxin. NRDC objected to such a high standard, but Maryland adopted the standard anyway on April 6, 1990.

The state submitted its water quality standards to EPA Region III for review. It did not argue for its 1.2 ppq dioxin standard with any data or information regarding noncancer human health effects or toxic effects on fish and aquatic life or animals that consume such contaminated fish and aquatic life. Maryland ignored the same new data EPA has ignored, as described above:

By using assumptions that err on the side of a weaker criterion in virtually every aspect of its cancer risk analysis, and by failing to consider significant new information that disputes these assumptions, Maryland's dioxin criterion fails to protect human health adequately against the cancer risk posed by dioxin.

NRDC opposed the Maryland actions with numerous comments to the EPA, but Region III nevertheless approved Maryland's dioxin standard. At least one bleach craft pulp and paper mill, operated by intervenor Westvaco Corporation, has obtained a discharge permit based on the 1.2 ppq dioxin criterion.

Substantive Counts

Count 1 alleges the EPA administrator has failed to fulfill his nondiscretionary duties under 33 U.S.C. § 1314(a)(1) to promulgate water quality criteria accurately reflecting all identifiable effects on human health, including noncancer human health effects and toxic effects on fish and aquatic life and animals that consume such life, because the 1984 standards were based only on human health effects related to cancer. He further failed to revise the criteria as required "from time to time" to reflect "the latest scientific knowledge," as also required by the CWA.

Count 2 alleges that Maryland's dioxin standard fails generally to meet the goals and requirements of the CWA, 33 U.S.C. §§ 1311(a), 1313(c) and 1314(a). Specifically, it alleges that Maryland's failure to adopt numerical criteria to protect against non-cancer human health effects and adverse effects to fish, etc., is in violation of the CWA. Even if numerical criteria on such matters were impossible to create from available data, Maryland also failed to properly adopt alternatives under "criteria based on biological monitoring, or assessment methods consistent with information" published by the EPA.

The defendants thus failed to meet their CWA duties when they approved Maryland's dioxin standards:

EPA's standard of review is, as a matter of law, contrary to CWA sections 101(a) and 303(c), including 303(C)(2)(B), which mandates state criteria adoption using "biological monitoring or assessment methods." EPA's refusal to properly review the Maryland standard for criteria to protect against fish and wildlife and noncancer human health effects is in error.

Therefore, defendants' approval of Maryland's dioxin standard "violated the Clean Water Act, and was arbitrary, capricious, an abuse of discretion and not in accordance with law, in violation of section 7 of the Administrative Procedure Act (APA)."

Finally, Count 3 charges that defendants' approval of the Maryland dioxin standard violated 40 C.F.R. part 131, in that the Maryland standards were not based on any scientifically defensible methods and otherwise failed to meet CWA goals and requirements.

Plaintiffs thus seek the following relief: 1) a declaration that defendants approval of Maryland's dioxin standard was unlawful under the CWA, the APA, and EPA regulations; 2) a declaration that the EPA administrator has failed to perform his nondiscretionary duty of promulgating and revising complete water quality criteria for dioxin; 3) an order requiring defendants to disapprove Maryland's dioxin standards and to promulgate a federal standard for dioxin there if Maryland fails to take such steps; 4) an order requiring the EPA administrator to perform the duties specified above (and retained jurisdiction by the Court to ensure compliance); and 5) an award of costs and fees.

II

Consideration of the arguments requires an overview of the CWA generally.

The CWA's overall objective is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The act acknowledges that states have the "primary responsibilities ... to prevent, reduce, and eliminate pollution, to plan the development and use ... of land and water resources, and to consult with the Administrator in the exercise of his authority" under the act. Id. § 1251(b)...