North West Environmental Advocates v. U.S. E.P.A., No. CV-01-510-HA.

Decision Date31 March 2003
Docket NumberNo. CV-01-510-HA.
PartiesNORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and the National Marine Fisheries Service, Defendants, The State of Oregon, Northwest Pulp & Paper Assoc., Oregon Forest Industries Council, Oregon Metallurgical Corp., Intervener-Defendants.
CourtU.S. District Court — District of Oregon

Aaron Courtney, Bart A. Brush, Portland, OR, for Plaintiff.

G. Scott Williams, Kent E. Hanson, James A. Maysonett, U.S. Department of Justice, Washington, D.C., for Defendants. Hardy Myers, Karen L. Moynahan, Oregon Department of Justice, Salem, OR, for Intervenor-Defendant State of Oregon.

Jay T. Waldron, Brian J. King, Timothy M. Sullivan, Schwabe, Williamson & Wyatt, Portland, OR, for Intervenor-Defendants Northwest Pulp & Paper Assoc. and the Oregon Forest Industries Council.

Scott Kaplan, Beverly Pearman, Michael Campbell, Stoel Rives, Portland, OR, for Intervenor-Defendant Oregon Metallurgical Corp.

OPINION AND ORDER

HAGGERTY, Chief Judge.

Before the court are the parties' crossmotions for summary judgment (Docs.# 49, 66, 70, 76) and plaintiffs Motion to Amend the Complaint (Doc. # 97). For the following reasons, the cross-motions for summary judgment are granted in part and denied in part. Plaintiffs Motion to Amend is denied.

BACKGROUND

This action arises from various water quality standards promulgated by the Oregon Department of Environmental Quality (DEQ) and approved by the federal Environmental Protection Agency (EPA). Plaintiff is an environmental organization whose members use and enjoy Oregon waterways. Plaintiff moves for declaratory and injunctive relief against EPA for its conduct involving the approval of Oregon's water quality standards. Defendants cross-move for summary judgment.

STANDARDS

Summary judgment is appropriate "if 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 entitied to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The primary facts of this litigation are largely undisputed and summary judgment rulings are appropriate on all claims.

Judicial review of an agency action is governed by the Administrative Procedure Act (APA). An agency action may be set aside if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." 5 U.S.C. § 706(2)(A). This is a deferential standard which presumes that the agency's decision is valid. Ethyl Corp. v. EPA 541 F.2d 1, 34 (D.C.Cir.1976). Nevertheless, the court must "assure itself that the agency decision was based on a consideration of the relevant factors." Id. (citations omitted). Although the "court's inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). To that end, this court should "defer to agency expertise on questions of methodology unless the agency has completely failed to address some factor, consideration of which was essential to a truly informed decision...." Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.1993) (citations omitted).

The court may not find an agency action to be "arbitrary or capricious unless there is no rational basis for the action." Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986) (citing Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1027 (9th Cir.1980)). The court must be "at its most deferential" when reviewing an agency's scientific determinations. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

DISCUSSION
I. Water Quality Standard for the Lower Willamette River

Congress enacted the Clean Water Act (CWA) in 1972 in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Water quality standards are created and reviewed by the states at least every three years in a process known as "triennial review." 33 U.S.C. § 1313(c)(1). States must submit all new and revised standards to EPA for review. If EPA rejects a standard, it must notify the state within 90 days of the submission. If the state fails to act within 90 days, EPA shall "promptly prepare and publish proposed" water quality standards for the state. 33 U.S.C. § 1313(c)(4)(A).

DEQ completed its triennial review of its water quality standards on January 11, 1996, and submitted certain revisions to EPA on July 26, 1996. Oregon's revised standards included, inter alia, a 68 F temperature criterion for salmonid migration and rearing in the Lower Willamette River. On July 22, 1999, EPA rejected the criterion. Oregon took no action within 90 days of EPA's rejection. Although Oregon's inaction triggered a mandatory duty on the part of EPA to promulgate a revised standard, EPA has done nothing for over three years.

The core issue presented is whether the court has subject matter jurisdiction to hear plaintiffs challenge to EPA's failure to revise the water quality standard for the lower Willamette River. Plaintiff brings its claim under the citizen-suit provision of the CWA. 33 U.S.C. § 1365(a)(2). Jurisdiction under this provision exists only if the agency has failed to exercise a nondiscretionary duty. Although the parties agree that EPA was required to "promptly" promulgate new standards in the wake of Oregon's failure to do so, the parties disagree as to whether the requirement under § 303(e)(4) to "promptly promulgate" establishes a nondiscretionary duty on the part of EPA. 33 U.S.C. § 1313(c)(4)(A).

Defendants contend that a duty is nondiscretionary only if the agency is mandated to act by the CWA under a "datecertain" deadline. A reviewing court should give "full effect" and follow the plain meaning of a statute whenever possible. United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). In other contexts, the Supreme Court has noted that use of the term "shall" is indicative of "mandatory language." See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34-35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998); Pierce v. Underwood, 487 U.S. 552, 569-70, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Other courts have found mandatory language in § 303(c)(4)'s demand that EPA "shall properly prepare and publish" revised water quality standards. Raymond Proffitt Found, v. U.S. EPA 930 F.Supp. 1088, 1097 (E.D.Pa.1996) (emphasis added). The Proffitt court found that the use of the term "shall" indicated a Congressional intention to mandate EPA to promulgate revised standards upon a state's failure to revise the criteria following EPA's disapproval. This interpretation is consistent with the statutory scheme that vests primary authority for the promulgation of water quality standards in the states, but requires EPA's oversight. See id.

The Ninth Circuit has addressed the question and reached the same result. The court found that § 303(c)(4)'s reference to "promptly promulgate" indicates mandatory language. Idaho Conservation League, Inc. v. Russell, 946 F.2d 717, 720 (9th Cir.1991). EPA correctly notes, however, that in Idaho Conservation League the Ninth Circuit was required only to find that the plaintiffs claim was "not frivolous." Notwithstanding the low threshold of that inquiry, the court's conclusions have bearing on the issues here:

The plain language of Section 303(c) supports plaintiffs' view. Section 303(c)(3) uses mandatory language, stating "the Administrator shall promulgate such standard pursuant to [Section 303(c)(4)]." The same mandatory language appears in Section 303(c)(4): "The Administrator [of EPA] shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard" if a state fails to adopt regulations within the; specified period. Id. § 1313(c)(4) (emphasis added). There is no case law suggesting § 303(c) leaves this Administrator any discretion to deviate from this apparently mandatory course.

Idaho Conservation League, 946 F.2d at 720 (citations omitted).

Interpreting the nondiscretionary nature of § 303(c)(4)(A), another court in this circuit found that "[a]s a matter of law, EPA ... failed to perform its mandatory duty" by not preparing and publishing water quality standards following the state of Idaho's failure to do so after EPA rejected the state's initial proposal. Idaho Conservation League v. Browner, 968 F.Supp. 546, 548 (W.D.Wash.1997).

Based on the plain language of § 303(c)(4)(A) and the statutory scheme established by the CAVA, EPA is under a nondiscretionary duty to promptly promulgate revised standards upon a state's failure to submit its own revisions within 90 days of the notice of disapproval. This holding is consistent with Congress's intent to allow states the "first bite" at promulgating their own water quality standards. Even upon rejection by EPA, a state may still maintain control over the process by submitting a new proposal within 90 days following EPA's rejection. However, a state's failure to submit revisions in a timely fashion triggers EPA's nondiscretionary duty to act. The duty is mandatory; to hold otherwise would allow the agency's inaction to leave old standards or no standards in place, thereby defeating the CWA's purpose of restoring and maintaining "the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a).

Having determined that EPA had a nondiscretionary duty to promulgate water temperature criteria for the Willamette River in a prompt fashion, the only question that remains is whether EPA has in fact acted "promptly....

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