Pennsylvania Municipal Authorities Association v. Horinko, Civil Action 02-01361 (HHK) (D. D.C. 11/20/2003)

• Decision Date: 20 November 2003
• Docket Number: Civil Action 02-01361 (HHK).
• Parties: PENNSYLVANIA MUNICIPAL AUTHORITIES ASSOCIATION, et al., Plaintiffs, v. MARIANNE LAMONT HORINKO, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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PENNSYLVANIA MUNICIPAL AUTHORITIES ASSOCIATION, et al., Plaintiffs, v. MARIANNE LAMONT HORINKO, et al., Defendants.

Civil Action 02-01361 (HHK).

United States District Court, District of Columbia.

November 20, 2003.

MEMORANDUM OPINION

HENRY KENNEDY, District Judge.

Plaintiffs, Pennsylvania Municipal Authorities Association ("PMAA"), Tennessee Municipal League ("TML"), and The City of Little Rock Sanitary Sewer Committee ("Little Rock"), and plaintiff-intervenor, The Association of Metropolitan Sewerage Agencies ("AMSA"), bring this action against defendants Marianne Lamont Horinko, Acting Administrator of the United States Environmental Protection Agency ("EPA"), Donald S. Welsh, EPA Regional Administrator of Region HI, J.I. Palmer, Jr., EPA Regional Administrator of Region IV, and Gregg Cooke, EPA Regional Administrator of Region VI claiming that the administrators of EPA Regions IE, IV and VI have acted in excess of their authority under the Clean Water Act, 33 U.S.C. § 1251-1387. Plaintiffs maintain that the Regional Administrators, without opportunity for notice and comment, have issued guidance documents pertinent to certain water treatment and discharge processes which set more restrictive standards than required by the CWA or national rules promulgated by EPA. Plaintiffs contend that this violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., and seek declaratory and injunctive relief.

Before this court is defendants' motion to dismiss [#17] and plaintiffs' motion for a preliminary injunction and expedited hearing [#51]. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendants' motion to dismiss must be granted because this court lacks subject matter jurisdiction of this action.

I. BACKGROUND

In passing the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251-1387, Congress established a comprehensive regulatory scheme to control the discharge of waste and pollutants into the nation's navigable waters. The Act's objective is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The Act makes unlawful any pollutant discharges into navigable waters, except as authorized by other provisions of the CWA, 33 U.S.C. § 1311(a), 1342, and requires the promulgation of effluent limitations which set the maximum allowable quantities, rates and concentrations of different pollutants that "point sources" may discharge into waters. 33 U.S.C. § 1362(11). Point sources are simply "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).

The EPA enforces the CWA through the National Pollutant Discharge Elimination System ("NPDES"). Under this system, the EPA has the discretion to issue permits for the discharge of otherwise prohibited pollutants, after a public hearing and subject to conditions set by the Administrator. 33 U.S.C. § 1342(a)(1). The Administrator may also authorize states to establish their own permit programs, which must conform with federal requirements. See 33 U.S.C. § 1314(i), 1342(b). EPA has authorized forty-five states, including the states where plaintiffs are located, to issue permits. Permits in the remaining states are issued by EPA itself. Authorized states must issue NPDES permits in accord with the provisions of the CWA and are subject to EPA oversight. 33 U.S.C. § 1342(b)-(c). Specifically, within ninety days after a state issues an NPDES permit, the EPA Administrator, or EPA regional administrator, may object in writing to an issued permit, rendering it invalid. See 33 U.S.C. § 1342(d)(2); 40 C.F.R. § 123.44. Under the Clean Water Act's judicial review provision, parties affected by EPA actions may appeal to the Circuit Courts of Appeals.¹

Plaintiffs represent, in total, hundreds of municipalities holding NPDES permits for their public-owned treatment works ("POTWs"). EPA regulations define POTWs as "any devices and systems used in the storage, treatment, recycling and reclamation of municpal sewage or industrial wastes of a liquid nature." 40 C.F.R. § 403.3(o). Plaintiffs claim that the regional EPA administrators have imposed restrictions and limitations on NPDES permitting not mandated by the provisions of the CWA and in contravention of "long-standing" national EPA rules. Specifically, they assert that the EPA regional administrators have put limits on various processes in various policy statements that are contrary to those indicated in existing national policy statements or rules, without any opportunity for notice and comment. The policy statements pertain to three different practices that are at issue in this case: "blending," emergency sanitary sewer overflows discharges, and the application of secondary treatment to emergency overflows.

A. "Blending" and "Bypass"

First, plaintiffs allege that EPA Regions III, IV and VI, contrary to national EPA rules, prohibit "blending." Compl. at 29-39. They define "blending" (also "slip-streaming" or "recombination") as a practice used when peak wet weather flows (e.g., from floods or massive rainfall) exceed the capacity of a treatment unit, and as a result, permittees route excess flows around the unit and mix or recombine them with treated waters. The combined waters, at the point of final discharge into navigable waters, ideally meet the effluent limitations contained in a given permit.

Defendants indicate that "blending" is not a term contained in the CWA or NPDES regulations but instead implicates a practice called "bypass." EPA regulations generally prohibit bypass, but a given bypass may be approved if it does not result in effluent limitations being exceeded and if it is essential for efficient operation. 40 C.F.R. § 122.41(m)(2), (4). In addition, EPA may not bring an enforcement action if a bypass is (1) unavoidable to prevent death, personal injury, or severe property damage; (2) necessary for lack of feasible alternatives; and (3) is preceded by advance notice. 40 C.F.R. § 122.41(m)(4). Furthermore, EPA regulations provide for an "upset" defense, which excuses noncompliance with effluent limitations by permittees because of exceptional incidents leading to unintentional and temporary effluent discharges. 40 C.F.R. § 122.41(n)(1).

Plaintiffs claim that EPA has had a long-standing policy that it would not dictate the precise processes to be used, so long as the POTWs meet their effluent limitations: "No final EPA rule or Headquarters policy requires that in order for a POTW to legally blend, blending must be specifically referenced in the permit." Compl. at 14. Plaintiffs argue that without recourse to blending, POTWs must force all waters to flow through the treatment facilities, which will in turn compromise the effectiveness of the treatment units and may make them exceed their effluent limitations. According to plaintiffs, the prohibition by regional EPA administrators on bypass and other similar processes changes would require prohibitively expensive changes to the design of treatment plants. Id. at 27 (estimating total costs of over $200 million for named plaintiffs, and billions of dollars for all POTWs nationwide, to conform with a complete ban on blending).

B. Sanitary Sewer Overflow Discharges

Second, plaintiffs claim that EPA Regions III and IV, contrary to national EPA rules, refuse to permit emergency sanitary sewer overflow ("SSO") discharges. Plaintiffs define "emergency outflows" as discharges from sanitary sewer overflow points-places where sewage is collected (e.g., a pump station) before entering a treatment works. Generally, the CWA prohibits non-emergency SSO discharges. Emergency outfalls, like "blending," are said to be needed in times of high precipitation, when a POTWs treatment facilities are overtaxed or overflowing. As a result, plaintiffs claim, emergency discharges should be allowed under the bypass and upset defenses. Plaintiffs assert, however, that EPA Regions III and IV have prohibited the permitting of outfalls entirely, meaning that the bypass and upset defenses are not available at all, and that even emergency SSO discharges would subject plaintiffs to liability. Plaintiffs argue that such rules are ultra vires, and that the national EPA regulations do not prohibit emergency outfalls. Defendants, for their part, assert that "emergency outfall," like "blending," is not a term recognized by the EPA.

C. Secondary Treatment

Finally, plaintiffs claim that EPA Regions III and FV have, contrary to EPA regulations, established "secondary treatment" as the technology-based standard for SSO discharges to be permittable. This allegation is a corollary to the previous claim-since EPA Regions in and IV do not permit emergency SSO overflows (of untreated effluent), SSO discharges must receive some sort of treatment. Plaintiffs concede that EPA regulations require that "secondary treatment" standards apply to discharges from treatment plants themselves. However, they claim that sewage overflow points are not part of treatment works and that SSOs are not subject to "secondary treatment." Id.

All of these alleged prohibitions and ultra vires regulations, according to plaintiffs, appeared in the form of dictates by regional administrators for EPA Regions III, IV and VI. hi addition, other EPA Regions (II, V, VII, and IX) have explicitly approved of blending. Furthermore, departments within the national EPA disagree over the legality of blending and emergency outfalls. See Pls.' Ex. 21 (Letter from Tinka G. Hyde, Acting Direct of EPA Water Division) (indicating EPA's Office of General Counsel, Office of Water and Office of Wastewater Management agreement that permits could, under certain circumstances, authorize re-routing or recombination "without . . . being consider a `bypass'"); Pls.' Ex. 52 (email from Kevin Weiss, EPA...