Ohio Valley Environmental Coalition v. Horinko

• Decision Date: 29 August 2003
• Docket Number: No. CIV.A. 3:02-0059.,CIV.A. 3:02-0059.
• Citation: 279 F.Supp.2d 732
• Court: U.S. District Court — Southern District of West Virginia
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. Marianne Lamont HORINKO, Acting Administrator, United States Environmental Protection Agency, Defendant.

279 F.Supp.2d 732

OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. Marianne Lamont HORINKO, Acting Administrator, United States Environmental Protection Agency, Defendant.

No. CIV.A. 3:02-0059.

United States District Court, S.D. West Virginia, Huntington Division.

August 29, 2003.

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James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, John W. Barrett, Joseph M. Lovett, Appalachian Center for the Economy and the Environment, Charleston and Lewisburg, WV, for Plaintiffs Ohio Valley Environmental Coalition, West Virginia Rivers Coalition, Inc., West Virginia Highlands Conservancy, Inc., Greenbrier River Watershed Association, Coal River Mountain Watch, West Virginia Citizen Action Group, Friends of the Cheat, Inc., Friends of the Cacapon, Inc., American Whitewater Affiliation, Blue Heron Environmental Network, Inc., Stanley Heirs Foundation, Inc., Concerned Citizens Coalition of Roane, Calhoun and Gilmer Counties, Wheeling Environmentalists, Friends of the Little Kanawha, Plateau Action Network, Inc., Winnie Fox, Elinore Taylor, Francis D. Slider, Denise Giardina, Julian Martin, Regina M. Hendrix, Kathryn A. Stone, Doyle Coakley, Abby Chapple, and Dick Latterell.

Kasey Warner, United States Attorney, Michael L. Keller, Assistant United States Attorney, United States Attorney's Office, Charleston, WV, Thomas L. Sansonetti, Mark A. Nitezynski, United States Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Denver, CO, for Defendant Marianne Lamont Horinko, Acting Administrator, United States Environmental Protection Agency.

Thomas H. Zerbe, Armando Benincasa, Perry D. McDaniel, West Virginia Department of Environmental Protection, Office of Legal Services, Charleston, WV, for Defendant-Intervenor

West Virginia Department of Environmental Protection.

Robert R. Waters, Waters Law Office, Huntington, WV, F. Paul Calamita, McGuire Woods, Christopher D. Pomeroy, Aqualaw, Richmond, VA, for Defendant-Intervenor West Virginia Municipal Water Quality Association.

Alexandra Dapolito Dunn, General Counsel, Association of Metropolitan Sewerage Agencies, Washington, DC, for Defendant-Intervenor Association of Metropolitan Sewerage Agencies.

David L. Yaussy, Anne C. Blankenship, Elizabeth K. Appel, Robinson & McElwee, Robert P. Paulson, M. Ann Bradley, Joseph M. Dawley, Spilman, Thomas & Battle, Robert G. McLusky, Kathy G. Beckett, Jackson Kelly, Leonard B. Knee, Bowles Rice McDavid Graff & Love, Charleston, WV, for Defendant-Intervenors The Contractors Association of West Virginia, Independent Oil and Gas Association of West Virginia, West Virginia Chamber of Commerce, West Virginia Coal Association, West Virginia Farm Bureau, West Virginia Forestry Association, West Virginia Hospitality and Travel Association, West Virginia Manufacturers Association, and West Virginia Oil and Natural Gas Association.

Fredric P. Andes, Barnes & Thornburg, Chicago, IL, for Defendant-Intervenor Federal Water Quality Coalition.

MEMORANDUM OPINION & ORDER

GOODWIN, District Judge.

This case involves a challenge to the Environmental Protection Agency's (the EPA's) decision, pursuant to its authority under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c), to approve the State of West Virginia's antidegradation implementation procedures, a set of procedures designed to prevent the degradation of the State's waters. For the reasons that follow, the court concludes that the EPA acted arbitrarily and capriciously in approving West Virginia's antidegradation procedures. With respect to seven particular aspects of West Virginia's program, the EPA failed to ensure that West Virginia's procedures met minimum federal requirements, as defined by the Clean Water Act and the EPA's own regulations. In some instances there is simply insufficient evidence in the administrative record to support certain aspects of West Virginia's implementation procedures and, correspondingly, the EPA's approval of those procedures. For example, West Virginia has classified the main segments of the Kanawha and Monongahela Rivers as Tier 1 waters, but there is almost no evidence in the record about the water quality of these rivers that would justify the decision to deny them the more stringent protection of Tier 2. See infra at IV.1. Nor is there sufficient evidence in the record explaining how Tier 2 review, which is location-specific and requires public participation, could be done at the time a general section 402 or section 404 permit was issued, rather than at the time new individual discharges are proposed. See infra at IV.4. In other instances, West Virginia's regulations simply fail to require the minimum protections required by the EPA's regulations, and the EPA's approval of West Virginia's procedures was based on an unreasonable attempt to effectively amend the plain meaning of those provisions so as to bring them into line with federal requirements. For example, West Virginia's procedures allow new or expanded discharges from certain wastewater treatment plants to evade Tier 2 review if the new discharge results in a "net decrease in the overall pollutant loading." The EPA approved this provision as consistent with minimum federal standards by, in effect, amending it to apply only when there is a net decrease in the pollutant loading for each pollutant parameter. See infra at IV.3.

Apart from the seven instances where the EPA failed to ensure that West Virginia's procedures met minimum federal requirements, however, the court rejects the plaintiffs' challenges to six other aspects of West Virginia's procedures. The EPA's conclusion that these six aspects of West Virginia's procedures satisfied minimum federal requirements was reasonable and supported by the evidence in the record. For example, the EPA reasonably concluded that best management practices for nonpoint source pollution will be "achieved," as required by EPA regulations, if those practices are "installed and maintained," as required by West Virginia's procedures. See infra at IV.5. Similarly, there was sufficient evidence in the record to support the EPA's approval of a provision allowing for a de minimis ten percent reduction in the available assimilative capacity of Tier 2 waters before Tier 2 review is required. See infra at IV.8.

That said, because the EPA failed to ensure, in a number of respects, that West Virginia's antidegradation implementation procedures were consistent with minimum federal requirements, the EPA's approval of West Virginia's procedures was arbitrary, capricious, and an abuse of discretion. Accordingly, the court VACATES the EPA's approval of West Virginia's antidegradation procedures and REMANDS to the EPA for further proceedings consistent with this opinion.

I. Background

The Clean Water Act (CWA or the Act), 33 U.S.C. § 1251 et seq., was passed by Congress "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2003). In particular, the CWA seeks to eliminate "the discharge of pollutants into the navigable waters" of the United States, and to "provide[] for the protection and propagation of fish, shellfish, and wildlife and provide[ ] for recreation in and on the water." Id. at §§ 1251(a)(1) & (a)(2).¹ The Supreme Court has explained that the CWA requires the Administrator of the EPA to "establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources," and also "requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). Under a 1987 amendment to the Act, State water quality standards must include an antidegradation policy, which is "a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation." Id. at 705, 114 S.Ct. 1900; see also 33 U.S.C. § 1313(d)(4)(B). Pursuant to this statute, the EPA promulgated a regulation governing antidegradation, 40 C.F.R. § 131.12. Section 131.12 requires States to "develop and adopt a statewide antidegradation policy and identify methods for implementing such policy." 40 C.F.R. § 131.12(a) (2003). Section 131.12 further provides that "[t]he antidegradation policy and implementation methods shall, at a minimum, be consistent" with certain federal standards specified in the regulation. Id. States must submit their antidegradation policy and implementation procedures to the EPA. 33 U.S.C. § 1313(c)(2)(A). If the State's policy and procedures are consistent with the minimum federal standards, the EPA must approve the procedures within sixty days. Id. at 1313(c)(3). If not, the EPA must, within ninety days, "notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection." Id.

On April 14, 2001, the West Virginia legislature passed West Virginia's antide-gradation implementation procedures, codified in Title 60, Series 5, of West Virginia's Code of State Regulations.² West Virginia submitted those procedures to the EPA on July 5, 2001, and the EPA approved the procedures on November 26, 2001.³ On January 23, 2002, the plaintiffs, a group of concerned citizens and environmental and recreational organizations, brought this suit challenging the EPA's approval of West Virginia's procedures.⁴ The plaintiffs claimed that the EPA's approval of West Virginia's antidegradation implementation procedures was "arbitrary, capricious, an abuse of discretion, or...