Raymond Proffitt Foundation v. USEPA

• Citation: 930 F. Supp. 1088
• Decision Date: 16 April 1996
• Docket Number: Civ. A. No. 95-0861.
• Parties: The RAYMOND PROFFITT FOUNDATION, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Carol Browner, Administrator.
• Court: U.S. District Court — Eastern District of Pennsylvania

930 F. Supp. 1088

The RAYMOND PROFFITT FOUNDATION, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Carol Browner, Administrator.

Civ. A. No. 95-0861.

United States District Court, E.D. Pennsylvania.

April 16, 1996.

John W. Wilmer, Media, PA, for The Raymond Proffitt Foundation.

David R. Hoffman, U.S. Attorney's Office, Philadelphia, PA, Mark A. Nitczynski, U.S. Department of Justice, Washington, DC, for United States Environmental Protection Agency.

Mark A. Nitczynski, U.S. Department of Justice, Washington, DC, Judith R. Hykel, U.S. Attorney's Office, Philadelphia, PA, for Carol Browner.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court are cross motions for summary judgment filed by the plaintiff, The Raymond Proffitt Foundation ("Proffitt"), and the defendants, the United States Environmental Protection Agency ("EPA") and Carol Browner, Administrator (jointly, "Defendants"). For the reasons stated below, the motions will be granted in part and denied in part.

I. BACKGROUND

This civil action arises out of Defendants' failure to "promptly prepare and publish" a water quality standard for Pennsylvania that complies with the Water Pollution Control Act (the "Clean Water Act" or the "Act"), 33 U.S.C. § 1251 et seq.

A. The Governing Statutes and Regulations

The Clean Water Act is a comprehensive water quality statute designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act also strives to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a)(2). Essential to these goals are the distinct roles for the federal and state governments. PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, ___, 114 S.Ct. 1900, 1905, 128 L.Ed.2d 716 (1994); Natural Resources Defense Council v. United States Environmental Protection Agency, 16 F.3d 1395, 1399 (4th Cir.1993); see 33 U.S.C. § 1251(b). The EPA is charged with establishing and enforcing the states' "technology-based limitations on individual discharges into the country's navigable waters from point sources." PUD No. 1, 511 U.S. at ___, 114 S.Ct. at 1905; see 33 U.S.C. §§ 1311, 1314. The Act also requires the states to institute a comprehensive water quality standard setting water quality goals for all intrastate waters. PUD No. 1, 511 U.S. at ___, 114 S.Ct. at 1905; 33 U.S.C. §§ 1311(b)(1)(C), 1313. This standard is "`a supplementary basis ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.'" PUD No. 1, 511 U.S. at ___, 114 S.Ct. at 1905 (quoting Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 2, 96 S.Ct. 2022, 2025 n. 2, 48 L.Ed.2d 578 (1976)).

In 1972, Congress amended the Act to require all states, if they had not done so already, to adopt a water quality standard that complies with the Act. 33 U.S.C. § 1313(a)(3)(A). A water quality standard defines the water quality goals of a particular body of water by setting forth the uses to be made of the water and the criteria necessary to protect those uses. 40 C.F.R. §§ 130.3, 131.2 (1995). This standard is a "critical component of the Act's regulatory scheme" because its guides state and federal authorities as to whether to grant or deny a particular permit to discharge pollutants into a body of water. See Natural Resources Defense Council, 16 F.3d at 1399.

Once a state's water quality standard complies with the Act, it is required, at least once every three years, to hold public hearings to review the standard and decide whether to modify it or adopt a new standard. 33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(a). Each state must submit the results of this review and all supporting information to the EPA. 33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(c). This process is known as the Triennial Review.

The Act and the federal regulations promulgated thereunder set forth six elements that states must include in their water quality standard. See 40 C.F.R. § 131.6. There are three principal elements.¹ First, a state must specify the designated uses of its waters. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(f), 131.6(a), 131.10. Second, the state must disclose criteria specifying the amounts of various pollutants that may be present in those waters without impairing the designated uses. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(b), 131.6(c), 131.11. Third, the state must submit a statewide antidegradation policy with a standard "sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation." PUD No. 1, 511 U.S. at ___, 114 S.Ct. at 1906; see 33 U.S.C. § 1313(d)(4)(B); 40 C.F.R. §§ 131.6(d), 131.12.

The third principal element, the antidegradation policy, is the focus of this case. EPA regulations divide the antidegradation policy into three tiers of water quality. See 40 C.F.R. § 131.12. Tier 1 sets forth the minimum standard, under which states must maintain and protect existing water uses and the level of water quality necessary to protect those uses. 40 C.F.R. § 131.12(a)(1). Tier 2 applies to waters whose quality exceeds Tier 1 levels and requires states to maintain and protect the water quality "necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," unless the state finds that lowering the water quality is "necessary to accommodate important economic or social development in the area." 40 C.F.R. § 131.12(a)(2). Tier 3 applies to high quality waters that constitute outstanding national resources and requires states to maintain and protect the water quality. 40 C.F.R. § 131.12(a)(3). At a minimum, every state must satisfy these conditions; however, a state may promulgate an antidegradation policy that is more stringent than required by the federal regulations. 40 C.F.R. § 131.4(a); PUD No. 1, 511 U.S. at ___, 114 S.Ct. at 1906.

Once a state has complied with the Act's initial water quality standard, the Act provides two ways in which the EPA enforces the Act and its regulations. First, the EPA may publish a revised water quality standard for a state when "the Administrator determines that a revised or new standard is necessary to meet the requirements" of the Act. 33 U.S.C. § 1313(c)(4)(B). Authority to make such a determination resides with the Administrator. 40 C.F.R. § 131.22(b). The state then must comply with the federally promulgated standard.

Alternatively, a state may submit a new or revised standard to the EPA as part of a Triennial Review. See 33 U.S.C. § 1313(c)(2)(A). If the Regional Administrator² approves the revisions, he or she must notify the state of the approval within sixty days. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(a). If the Regional Administrator disapproves the revisions, he or she must notify the state of the disapproval within ninety days.³ 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(b). If the state fails to adopt the changes specified by the Regional Administrator within ninety days of the notice of disapproval, "the Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved." 33 U.S.C. § 1313(c)(4); see also 40 C.F.R. § 131.22(a) (requiring the Administrator to "promptly propose and promulgate" the changes specified by the Regional Administrator in its disapproval notice). The state is required to comply with the Administrator's new federal regulations setting forth a new water quality standard.

B. The Factual and Procedural History

The material facts of this case are not in dispute. On September 2, 1971, Pennsylvania first adopted a water quality standard, including an antidegradation policy. (Defs.' Mem.Supp.Summ. J. at 8.) On August 10, 1973, the EPA approved the standard. Id. In 1979 and 1985, Pennsylvania completed Triennial Reviews of its water quality. Id. Between 1989 and 1994, the EPA continually notified Pennsylvania that its review was deficient in part because its antidegradation policy failed to comply with the federal standard. (Pl.'s Mem.Supp.Summ. J. at 3.) Pennsylvania's Department of Environmental Resources⁴ submitted its 1992 Triennial Review on March 9, 1994. (Ex. D-3.)⁵ On June 6, 1994, the EPA disapproved certain provisions of the standard, including the antidegradation policy.⁶ (Ex. P-1.) The EPA found that Pennsylvania's policy failed to comply with federal regulations governing Tier 1, Tier 2, and Tier 3 waters. Id.

As to Tier 1 waters, the EPA approved Pennsylvania's adoption of a definition of existing uses that mirrors the federal definition. Id. at 3. However, the EPA found that Pennsylvania's policy varied from the federal standard because it linked existing use protection to DER's rulemaking process. Id. The EPA reasoned that the Pennsylvania standard might not protect existing uses if DER determined that the waterbody attains the criteria for an existing use that is more protective for the waterbody than the designated use. Id. The EPA thus concluded that this state standard was not consistent with the federal regulation requiring Tier 1 water uses to be "maintained and protected." Id. at 3-4; see 40 C.F.R. § 131.12(a)(1). The EPA requested that Pennsylvania insert the "maintained and protected" language in its Tier 1 antidegradation policy. (Ex. P-1 at 3-4.)

As to Tier 2 waters, Pennsylvania developed a Special Protection Program designating Tier 2 waters as High Quality. Id. at 4. The EPA found that this program "provides an excellent vehicle to protect valuable waters in the Commonwealth," mainly because it does not allow de minimis deposits to be exempted from the antidegradation process. Id. However, because Pennsylvania designates High Quality waters...