S. Cal. Alliance of Publicly Owned Treatment Works v. U.S. Envtl. Prot. Agency
| Decision Date | 19 October 2016 |
| Docket Number | No. 2:14-cv-01513-MCE-DB,2:14-cv-01513-MCE-DB |
| Parties | SOUTHERN CALIFORNIA ALLIANCE OF PUBLICLY OWNED TREATMENT WORKS and CENTRAL VALLEY CLEAN WATER ASSOCIATION, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ALEXIS STRAUSS, ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX, Defendants. |
| Court | U.S. District Court — Eastern District of California |
This case was closed on May 15, 2015 after the Court determined that the action was moot. ECF No. 51. On June 4, 2015, Plaintiffs filed a Motion for Reconsideration based on newly discovered evidence. ECF No. 53. The Court granted that Motion for the limited purpose of obtaining further briefing as to an argument Plaintiffs had raised for the first time in their reply brief to that motion. ECF No. 61. After considering the additional briefing, the Court denied Plaintiffs' Motion for Reconsideration. ECF No. 94. Plaintiffs now file for a Motion to Reopen Judgment so that they can amend their complaint. ECF No. 95. For the following reasons, Plaintiffs' Motion to Reopen Judgment is DENIED.
The Southern California Alliance of Publically Owned Treatment Works ("SCAP") and the Central Valley Clean Water Association ("CVCWA") are organizations whose members treat and recycle wastewater. Pursuant to the Clean Water Act, Plaintiffs' members must obtain National Pollutant Discharge Elimination System ("NPDES") permits in order to release treated water into the environment. These permits are issued by the California Regional Water Quality Control Boards, the State Water Resources Control Board ("State Water Board"), and sometimes the United States Environmental Protection Agency ("EPA"). However, it is the EPA that promulgates formal test methods for determining whether discharged water is deemed "toxic." The permits contain monitoring requirements that "must be conducted according to test procedures approved under 40 CFR part 136." 40 CFR 122.41 (j)(4). The formally approved test procedures include the whole effluent toxicity ("WET") test methods, which measure the biological effects (survival, growth, and/or reproduction) on aquatic organisms exposed to environmental samples.
In 2002, the EPA ratified a number of biological WET test methods to be applicable for use in the NPDES program.1 67 Fed. Reg. 69,952, Nov. 19, 2002. As part of this modification, EPA added a section to each method's test review manual that included recommended statistical methodologies for analyzing WET test biological data. The WET test manuals recommend, but do not require, select statistical analyses to be applied to WET test results.2 AR 002357.3
In 2010, the EPA published a guidance document ("2010 Guidance") regarding a new method of analyzing WET test data for the NPDES program—the Test of Significant Toxicity ("TST"). Pursuant to 40 CFR 136, all WET test methods must be conducted using five concentrations and a control.4 However, it is possible to conduct the TST statistical approach using only two concentrations: the effluent at the critical concentration and a control. If the effluent and the control differ by an unacceptable amount (the amount that would have a measured detrimental effect on the ability of aquatic organisms to thrive and survive), then the effluent sample is declared toxic.
In May 2013, the Deputy Regional Administrator of the EPA's Region 9 sent a memorandum to EPA headquarters asking for clarification on the minimum number of test concentrations required to appropriately utilize the TST approach. AR 000030-32. In response, a headquarters representative stated that the two-concentration design was not acceptable as the promulgated WET methods require "a control plus five effluent concentrations under the methods' test acceptability criteria." AR000028.5 The response went on to state, however, that use of the two-concentrations TST approach could be accomplished by use of the Alternate Test Procedure ("ATP") process laid out in 40 CFR parts 136.4 and 136.5. AR000028-29.
An ATP request can either be nationwide (40 CFR 136.4) or for limited use (40 CFR 136.5). While nationwide requests must be approved by the National Coordinator, a limited use request can be approved by the EPA's Regional ATP Coordinator, who has the discretion to restrict the use of the ATP to a specific facility or "to all discharger[s] or facilities (and their associated laboratories) specified in the approval for the Region." 40 CFR 136.5.
/// On February 12, 2014, the State Water Board asked the Regional ATP Coordinator to approve the two-concentration TST as an ATP for all of California. In error, the request referred to 40 CFR 136.4, despite the fact that the request did not ask for the approval of a nationwide ATP. On March 17, 2014, the EPA approved the two-concentration TST test design as a limited use ATP for NPDES permits issued in California, finding that the two-concentration TST approach was an acceptable equivalent to the five-concentration test evaluated using NOEC-LOEC6 hypothesis testing.
On June 25, 2014, Plaintiffs filed this action alleging that Defendants EPA and Jared Blumenfled, as the Regional Administrator of EPA Region 9, violated the Administrative Procedure Act, 5 U.S.C. §§ 551-59, and regulations implementing the Clean Water Act, 33 U.S.C. §§ 1251-376.7 Specifically, Plaintiffs allege that Defendants illegally and improperly approved the State Water Board's request to use a newly formulated methodology as an ATP. Plaintiffs filed this action in order to overturn the ATP approval and to obtain a permanent injunction preventing the EPA from "mandating the use of the two-concentration TST or use of analytical results obtained using this non-promulgated method for NPDES compliance determination or other Clean Water Act purposes." First Am. Compl. ("FAC"), Prayer for Relief ¶ E, ECF No. 15. Concurrent with the filing of their original complaint, Plaintiffs sought a temporary restraining order from the Court, which was later denied due to delay. Because there was no restraining order in place, NPDES permits containing the two-concentration TST were issued while the parties litigated this case.
On February 11, 2015—just before Defendants' Reply to its Cross-Motion for Summary Judgment was due—the EPA withdrew its ATP approval of the two-concentration TST testing method "effective immediately."8 McNaughton Decl., ECF No. 40-1, Ex. A, at 4. Defendants acknowledged that the withdrawal "arose because of this litigation." Defs.' Reply, ECF No. 40, at 9:7. Because of this withdrawal, the Court determined the case to be moot on May 15, 2015.
The Court found that it was "highly unlikely that this exact situation will occur again in the future." The Court also reasoned that any future case about the issuance of an ATP to approve the two-concentration TST approach would be based on a new record. ECF No. 51, at 4. Additionally, the Court stated the allegedly wrongful behavior could not reasonably be expected to reoccur because "[t]he EPA cannot initiate the ATP process . . . [a]nd there is no indication that the State Water Board will submit another ATP request to the EPA to use the two-concentration TST test method for all of California." Id. at 6 (citations omitted). Moreover, the Court determined that "[e]ven if the State Water Board were to submit a new ATP request for this exact testing procedure, any decision on that request would be the result of a new proceeding on a new record." Id. at 5. Finally, with respect to the permits containing the two-concentration TST approach that had been issued while litigation was pending, the Court held that state court was the "appropriate venue to challenge the contents of an individual NPDES permit." Id. at 7.
On June 4, 2015, Plaintiffs filed a Motion for Reconsideration based on newly discovered evidence in the form of a State Water Board internal memorandum ("the Memo") discussing the effect of the EPA's withdrawal of the State Water Board's ATP request on future NPDES permitting. ECF No. 53-2, Ex. A. The Memo states that "[t]he three reasons for withdrawal, as described in the rejection letter, are clearly identified as procedural errors" and that the withdrawal was not based on "the substantive TST statistical analysis or the scientific validity of a two-concentration test design." Id. The Memo goes on to state that once the EPA makes changes to the ATP regulations,through a proposed rulemaking, the State Water Board "will resubmit the ATP request in the proper format." Id. The Memo provides a table showing that the five-concentration test design must be used for effluent testing, but that the two-concentration method can be used for storm water and receiving water as those water sources are not subject to the same five-concentration test requirements found in 40 CFR 136.3.9 The Memo concludes by stating:
After Plaintiffs' filing of the original Motion for Reconsideration, Plaintiffs acquired more documentation from a previous Freedom of Information Act ("FOIA") request.10 Pls.' RJN, ECF No. 58. Plaintiffs argued that these documents showed that the "EPA has demonstrated a clear pattern and practice of utilizing, and encouraging the State to utilize, the 2010 guidance documents to set chronic toxicity permit limits and monitoring requirements." Pls.' Reply 3. Accordingly, Plaintiffs urged the Court to retain jurisdiction over this case, and to determine whether the EPA can do so without formally promulgating the TST approach as a recommended WET test statistical analysis approach, like those listed in the 2002 rule. The Test approach had only been discussed in the 2010 Guidance, and while the EPA...
To continue reading
Request your trial