Sanitary Bd. of Charleston v. Wheeler

• Decision Date: 12 March 2019
• Docket Number: No. 18-1592,18-1592
• Citation: 918 F.3d 324
• Parties: SANITARY BOARD OF the CITY OF CHARLESTON, WEST VIRGINIA, Plaintiff – Appellant, v. Andrew WHEELER, Acting Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

918 F.3d 324

SANITARY BOARD OF the CITY OF CHARLESTON, WEST VIRGINIA, Plaintiff – Appellant,

v.Andrew WHEELER, Acting Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency, Defendants - Appellees.

No. 18-1592

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2019

Decided: March 12, 2019

ARGUED: Frank Paul Calamita, III, AQUALAW PLC, Richmond, Virginia, for Appellant. Jeffrey Steven Beelaert, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Justin W. Curtis, Paul T. Nyffeler, AQUALAW PLC, Richmond, Virginia, for Appellant. Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Sarah A. Buckley, Chloe H. Kolman, Michael Gray, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas Glazer, Nina Rivera, Office of General Counsel, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., for Appellees.

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Floyd joined.

WILKINSON, Circuit Judge:

The Clean Water Act vests the Administrator of the Environmental Protection Agency (EPA) with the authority to review the water quality standards proposed by a state. In 2015, West Virginia submitted a revised standard for the receiving waters of the Charleston Sanitary Board’s wastewater treatment facility along the Kanawha River. The EPA disapproved the standard. The Sanitary Board challenged this decision on two grounds. First, the Board alleged that the EPA had no discretion to disapprove the standards. The district court rejected this argument on the merits, a decision that we now affirm. Second, the Board claimed that, even if the EPA had discretion, its decision violated the Administrative Procedures Act (APA). The district court dismissed the APA claims as moot following the issuance of a new permit to the Sanitary Board. On appeal, we affirm the judgment for the EPA on the merits, finding that the agency did not violate the APA. Agency decisions like this one do not invariably garner applause. While popular opinion of course remains free to reject unpleasant scientific conclusions and prognoses, the relevant statutes envision a marriage between law and science as the surest path for environmental restoration.

I.

A.

The Clean Water Act (CWA) created a comprehensive scheme to "restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." 33 U.S.C. § 1251 (2012). A critical part of the CWA’s overall program is aimed at pollutants that are discharged into waterways through " ‘any discernable, confined and discrete conveyance,’ such as a pipe, ditch, channel, or tunnel." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians , 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) (quoting 33 U.S.C. § 1362(14) ). These conveyances are known as "point sources." The Charleston Sanitary Board operates a wastewater treatment facility along the Kanawha River that is designated as a point source.

The CWA contemplates that federal regulators, state governments, and private citizens will all play a role in addressing point source pollution. The National Pollutant Discharge Elimination System (NPDES) is the foundation of this regulatory effort. See Piney Run Pres. Ass’n v. Cty. Comm’rs of Carroll Cty. , 268 F.3d 255, 260 (4th Cir. 2001). Under the NPDES, point source operators are required to obtain permits for their facilities at least once every five years. The permits are tailored to each individual facility and contain discharge limits for various pollutants, including copper

. The EPA was initially responsible for issuing the permits to individual facilities, but states were able to take on that responsibility if they could demonstrate the capacity to administer an effective permitting program. See

Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 650-51, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citing 33 U.S.C. § 1342(b) ). Most states have chosen to do so. West Virginia has issued permits to point sources since 1982. See

Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC , 845 F.3d 133, 136 (4th Cir. 2017).

Individual NPDES permits are based in part upon the state’s overall water quality standards. See 33 U.S.C. § 1312. These standards set the water quality requirements for each body of water within a state. Nat. Res. Def. Council v. EPA , 16 F.3d 1395, 1400 (4th Cir. 1993). A standard might apply to an entire river or may be specific to one area, or even one particular facility. See, e.g. , J.A. 148 (defining a standard for the "stretch between the mouth of Little Scary Creek and the Little Scary impoundment"). The states are responsible for developing standards in the first instance, defining acceptable levels of pollution for each location based on the "designated uses" of the waters at that location. 33 U.S.C. § 1313(c)(2)(A). Once the state has adopted new or revised standards, they are submitted to EPA for approval. Standards do not become effective until the EPA approves them. Apart from its oversight and approval role, the EPA also develops guidance on acceptable water quality levels and measurement techniques, which states in turn rely on in evaluating and updating their standards. Relevant to this case, the EPA has issued many guidance documents regarding appropriate copper

standards over the years.

Taken together, point source regulation depends on a division of governmental authority. States develop their standards, informed by EPA’s scientific guidance. The EPA then reviews the proposals, bringing its own expertise to bear. If the standards receive EPA approval, they then "serve as a guideline for setting applicable limitations in the [NPDES] permit[s]." Nat. Res. Def. Council , 16 F.3d at 1399. Private citizens, for their part, are able to enforce the law in some circumstances through the CWA’s citizen suit provision.

B.

The dispute here involves West Virginia’s attempt to revise its standards with respect to the portion of the Kanawha River that receives discharges from the Charleston Sanitary Board’s wastewater treatment facility. In 2013, the Sanitary Board met with the West Virginia Department of Environmental Protection to explore the possibility of a less stringent copper

standard for these waters. Under its then-existing permit, the Board was subject to a copper limit that it believed was lower than necessary to protect aquatic life. The Board’s expectation was that a new, more lenient standard for the site would lead to a more lenient permit. The Board financed a study and state regulators agreed that the copper limit for the Board’s facility should be raised. Staff at the EPA signaled that West Virginia’s proposed standard was consistent with applicable guidance, but made clear that this preliminary assessment would not tie the agency’s hands down the road. J.A. 81.

In June 2015, West Virginia approved the new standard and sent it along to EPA for final review. See 33 U.S.C. § 1313. Under the CWA, the EPA is given sixty days to reach a decision, and in the event of a denial, thirty additional days to provide feedback to the state on any changes that would need to be made to obtain the agency’s approval. Id. § 1313(c)(3). EPA missed the deadline for reviewing West Virginia’s proposed standards, and this case began.

The Sanitary Board initially brought two claims against the EPA under the CWA’s citizen suit provision. That provision allows a private party, like the Sanitary Board, to sue the EPA Administrator for his failure "to perform a non-discretionary duty" required by the law. See 33 U.S.C. § 1365(a)(2). The Board’s first claim argued that the Administrator had a non-discretionary duty to reach a decision, either for or against the West Virginia proposal, within the deadlines set forth in the statute. The second claim was bolder, alleging that the Administrator had a non-discretionary duty to approve the proposed standard because the EPA had already determined it was consistent with the statute. Before reaching the merits of these claims, the district court granted the EPA a forty-five day extension to reach a final decision on the revised standards.

The EPA then disapproved West Virginia’s proposal. See Letter from Shawn M. Garvin, Regional Administrator, Envtl. Protection Agency, to Randy C. Huffman, Secretary, W. Va. Dep’t of Envtl. Protection 1 (July 19, 2016) [hereinafter Final Disapproval Letter]; J.A. 66. Although the state standards were developed using a familiar methodology, the EPA found that the proposed copper

limit for the Sanitary Board’s facility was so high as to warrant additional scrutiny. Applying the most recent scientific methods, the EPA "determined that, based on the available information, the site specific criteria" proposed for the Sanitary Board "would not be protective of ... fish and other aquatic life ... in the Kanawha River." Id. The EPA’s disapproval letter included a detailed enclosure, which "provide[d] the data and analysis that EPA conducted to evaluate the protectiveness" of the revised standard for the Sanitary Board. Final Disapproval Letter 2; J.A. 67.

The agency informed West Virginia of its decision within the forty-five day extension period set by the district court. Following this decision, the Board amended its complaint to bring new claims against the EPA under the Administrative Procedures Act. These claims allege that the EPA’s disapproval decision was reached in a manner that was arbitrary and capricious, contrary to law, and without observation of procedures required by law, respectively. See 5 U.S.C. § 706(2).

All parties agreed that the EPA’s decision to disapprove the state standards mooted the Board’s first claim under the CWA. That claim had simply asked for a decision one way or the other, which had now been...