Ohio Valley Envtl. Coal., W. Va. Highlands Conservancy, Inc. v. McCarthy, CIVIL ACTION NO. 3:15-0277

• Decision Date: 19 June 2015
• Docket Number: CIVIL ACTION NO. 3:15-0277
• Court: U.S. District Court — Southern District of West Virginia
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and SIERRA CLUB, Plaintiffs, v. GINA MCCARTHY, in her official capacity as Administrator, United States Environmental Protection Agency and SHAWN M. GARVIN, in his official capacity as Regional Administrator, United States Environmental Protection Agency Region 3, Defendants.

OHIO VALLEY ENVIRONMENTAL COALITION,
WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and SIERRA CLUB, Plaintiffs,
v.
GINA MCCARTHY, in her official capacity as Administrator, United States Environmental Protection Agency
and SHAWN M. GARVIN, in his official capacity as Regional Administrator,
United States Environmental Protection Agency Region 3, Defendants.

CIVIL ACTION NO. 3:15-0277

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

June 19, 2015

MEMORANDUM OPINION AND ORDER

Pending before the Court are the United States' Motion to Dismiss Complaint (ECF No. 5) and Plaintiffs' Motion for Stay of Proceedings (ECF No. 8). For reasons explained below, Plaintiffs' Motion for Stay of Proceedings is GRANTED, and Defendants' Motion to Dismiss is GRANTED, in part, and DENIED, in part. Specifically, Defendants' Motion to Dismiss is granted with respect to Count One and denied with respect to Count Two.

I. BACKGROUND

On June 17, 2009, Plaintiffs Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club submitted a petition to the Environmental Protection Agency ("EPA") requesting that the EPA "evaluate the systemic failure of West Virginia to

Page 2

administer and enforce the National Pollutant Discharge Elimination System program and to withdraw the delegation of the program from the West Virginia Department of Environmental Protection." Compl. ¶3, ECF No. 1; June 17, 2009 Petition, ECF No. 1-1. Plaintiffs later provided the EPA with supplements to the June 17th Petition on July 31, 2009 (ECF No. 1-2) and November 13, 2009 (ECF No. 1-3).

On January 7, 2015—over six and one half years after filing their Petition—Plaintiffs filed a two-count Complaint against Defendants Gina McCarthy, Administrator of the EPA, and Shawn Garvin, Regional Administrator of the EPA Region III (collectively, "EPA" or "Defendants"). See Compl., ECF No. 1. In Count One, Plaintiffs assert a claim under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(2). Id. at ¶¶40-44. Plaintiffs allege that the EPA failed to perform its nondiscretionary duty under CWA Section 402(c)(3), 33 U.S.C. § 1342 (c)(3), and 40 C.F.R. § 123.64 (b)(1), to respond in writing to their administrative petition seeking withdrawal of West Virginia's National Pollutant Discharge Elimination System ("NPDES") permit program. Id. In Count Two, Plaintiffs allege that the EPA's failure to timely respond to their petition also constitutes "agency action unlawfully withheld or unreasonably delayed," in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1). Id. at ¶¶45-49.

Defendants move to dismiss the Complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss and Supp. Mem., ECF Nos. 5 and 6. After first setting out the standard of review in Section II, the Court will consider Plaintiffs' CWA claim in Section III and Plaintiffs' APA claim in Section IV.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court is competent to hear and adjudicate the claims

Page 3

brought before it. It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits. Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: "facial attacks" and "factual attacks." Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir.1986), rejected on other grounds, Sheridan v. United States, 487 U.S. 392 (1988). A "facial attack" questions whether the allegations in the complaint are sufficient to sustain the court's jurisdiction. Id. On the other hand, a "factual attack" challenges the truthfulness of the factual allegations in the complaint upon which subject matter jurisdiction is based. Here, Defendants raise a facial attack under Rule 12(b)(1), and therefore the court must accept the allegations in the complaint as true and decide if the complaint is sufficient to confer subject matter jurisdiction. Id.

A motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Republican Party of N. Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "[I]t does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Id. (citation omitted).

III. COUNT ONE UNDER THE CLEAN WATER ACT

Under the CWA's citizen suit provision, district courts only have subject matter jurisdiction where there is a "failure of the Administrator to perform any act or duty under this chapter which is not discretionary." 33 U.S.C. § 1365(a)(2). In light of that jurisdictional limitation, Defendants argue that Plaintiffs' CWA claim fails to state a claim for relief because the CWA does not impose a nondiscretionary duty to respond to petitions submitted under Section 402(c)(3).

Page 4

If there is a nondiscretionary duty to be found, it must be found in Section 402(c)(3) of the CWA,¹ which reads:

Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal.

33 U.S.C. § 1342(c)(3) (emphasis added). In support of...