The Am. Waterways Operators v. Regan

Decision Date14 February 2022
Docket Number18-cv-2933 (APM)
CourtU.S. District Court — District of Columbia
PartiesTHE AMERICAN WATERWAYS OPERATORS,, Plaintiff, v. MICHAEL REGAN, [1] Administrator of the U.S. Environmental Protection Agency, et al.,, Defendants. and STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, et al.,, Defendant-Intervenors.

Amit P. Mehta United States District Court Judge


For the second time, this court is tasked with reviewing the Environmental Protection Agency's determination that adequate facilities for the removal and treatment of vessel sewage are reasonably available in the Puget Sound. In 2016 the State of Washington decided to take steps toward designating the Puget Sound as a “no-discharge zone” (“NDZ”). As part of the process for a state designating an NDZ set forth in the Clean Water Act (“CWA”), Washington petitioned the Environmental Protection Agency (“EPA”) to make a determination as to the reasonable availability of adequate sewage-removal and sewage-treatment facilities in the Puget Sound. See 33 U.S.C. § 1322(f)(3). EPA made the requisite determination in January 2017, allowing the Puget Sound NDZ to go into force.

The American Waterways Operators (AWO) brought a challenge to EPA's determination under the Administrative Procedure Act (“APA”). At first, EPA did not defend its determination. Defendant-Intervenors Washington Environmental Council, Puget Soundkeeper, Friends of the Earth, and Washington State Department of Ecology (collectively, Intervenors) instead took up the mantle. Rather than defend its determination on the merits, EPA unsuccessfully sought a voluntary remand. After that, AWO and Intervenors moved for summary judgment, with EPA moving only for reconsideration of the court's denial of its motion for voluntary remand. Ultimately, the court remanded to EPA, ordering it to effectively redo its reasonable-availability determination as to certain issues, including, as relevant here, considering compliance costs and assessing the reasonable availability of adequate treatment facilities. EPA did so, and it again determined that removal and treatment facilities were reasonably available in the Puget Sound.

AWO once more challenges the agency's determination under the APA, and now before the court is its motion for summary judgment. EPA and Intervenors have cross-moved, defending EPA's renewed determination. For the reasons that follow, the court denies AWO's motion for summary judgment and grants EPA and Intervenors' motions.

A. Factual Background

This case began with Washington's effort to prohibit commercial and recreational vessels from discharging their sewage into the Puget Sound. The CWA allows for such state efforts: It sets a national floor of “standards of performance for marine sanitation devices . . . designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters, ” 33 U.S.C. § 1322(b)(1), generally preempting state efforts to “adopt or enforce any statute or regulation” regarding marine sanitation devices. See Id. § 1322(f)(1)(A). But states may enact regulations that are more protective of their waters than federal law. As relevant here, Section 1322(f)(3) allows a state to establish an NDZ if it “determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection.” Id. § 1322(f)(3). Critically, however, “no such [discharge] prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply.” Id. The EPA must render that determination within 90 days of the state's application. Id.

In 2016, Washington decided to establish an NDZ in the Puget Sound after years of research demonstrated that federal marine-discharge requirements did not adequately protect the Puget Sound's water quality. See Am. Waterways Operators v. Wheeler (AWO), 507 F.Supp.3d 47, 54 (D.D.C. 2020) (describing the dire state of pollution in the Puget Sound). Following the procedure set forth in Section 1322(f)(3), Washington sought a determination from EPA that adequate sewage-removal and sewage-treatment facilities are reasonably available in the Puget Sound. See Id. In doing so, it submitted a petition reflecting “water-quality studies, outreach to vessel operators, and an analysis of the costs and benefits of creating an NDZ.” Id. EPA requested more information as to the availability of “pumpout” facilities-the facilities that remove, or “pump out, ” sewage from vessels-and Washington provided a supplement with the requested information. See id.

After considering the petition, EPA published a notice seeking public comment on its preliminary determination that “adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels [were] reasonably available, ” 33 U.S.C. § 1322(f)(3). AWO, 507 F.Supp.3d at 54-55. In January 2017, EPA published notice of its final determination, which was consistent with its preliminary determination: it found that adequate facilities were reasonably available. Id. at 55; see Id. (discussing the contents of the initial determination). Upon receipt of EPA's affirmative determination, Washington established an NDZ in the Puget Sound. See Wash. Admin. Code § 173-228-030.

B. Procedural Background
1.Initial Phase of Litigation

The court offers here an abridged narrative of the lead-up to the first round of summary judgment, which is recounted in greater detail in AWO, 507 F.Supp.3d 47.

Almost two full years after EPA rendered its determination, and eight months after Washington finalized its NDZ, AWO “a national trade association for the tugboat, towboat, and barge industry, ” brought this suit. AWO, 507 F.Supp.3d at 56 (internal quotation marks omitted); see EPA's Combined Cross-Mot. for Summ. J., & Opp'n to Pl.'s Mots. to Enforce & for Summ. J., ECF No. 73 [hereinafter Defs.' Cross-Mot. & Opp'n], at 3. It alleged that EPA's determination was arbitrary and capricious under the APA, 5 U.S.C. § 706, and that, as relevant here, EPA's failure to consider compliance costs rendered its determination unlawful under Michigan v. EPA, 576 U.S. 743 (2015). It also challenged, among other alleged deficiencies, EPA's failure to make an independent determination as to the availability of adequate treatment facilities.

But before any party filed a substantive motion, EPA moved for a remand without vacatur. Contrary to its position in making an initial determination, EPA said that it agreed that, under Michigan, it should have considered compliance costs. AWO, 507 F.Supp.3d at 56. The court denied that motion, in part because the agency had not actually admitted error. After that, the agency issued a formal memorandum in which it officially declared that it had erred in refusing to consider costs, and that the agency's new view was that Michigan required EPA to consider compliance costs in making a reasonable-availability determination under Section 1322(f)(3). Id.

The litigation proceeded. AWO filed its first motion for summary judgment early in 2020. In it, AWO challenged EPA's determination as arbitrary and capricious for four reasons: (1) EPA had failed to determine whether adequate treatment facilities existed; (2) EPA had failed to consider compliance costs as part of its reasonable-availability analysis; (3) EPA's finding that pumpout facilities were reasonably available was flawed; and (4) EPA had ignored deficiencies in Washington's petition for a determination. Id. at 57. EPA did not defend its determination on the merits. Instead, it sought reconsideration of the court's denial of its motion for voluntary remand. Id. In its motion, which it styled as a Cross-Motion for Reconsideration, ” EPA reiterated its error on the Michigan issue and urged the court not to reach AWO's other three challenges. Intervenors mounted a merits defense of EPA's determination, seeking summary judgment and asking the court to deny EPA's remand motion. Id.

The court issued its opinion on the parties' motions in November 2020. As relevant here, it concluded that (1) EPA was required, under Michigan, to consider compliance costs in its Section 1322(f)(3) analysis and (2) EPA had not shown that it considered the reasonable availability of adequate sewage-treatment facilities in the Puget Sound. Id. at 79. The court remanded to EPA for 90 days to engage in the necessary consideration of those issues (as well as some other issues not relevant here), without vacating the NDZ. Id.

2. Remand

With the Puget Sound reasonable-availability determination once more before the agency, EPA solicited “information relevant to EPA's action upon remand” from AWO and Intervenors, including “average annual operating costs for [AWO] member vessels in Puget Sound, ” information regarding pumpout locations and state regulation of pumpout facilities, and information regarding treatment facilities' capacity. A.R. at 55725-26.[2] The deadline for submissions was January 8, 2021 (within a third of EPA's court-allotted remand time). Id. at 55725. AWO and Intervenors all submitted responses. Id. at 55759-831; id. at 55735-58; id. at 55733-34. Based on this new information as well as the record for the original determination and other information, EPA reaffirmed its previous reasonable-availability determination. Id. at 55835.

With respect to pumpout costs, EPA concluded that it was required to consider costs that “can be attributed to pumpout facility availability and adequacy.” Id. at 55840. Those costs included use costs (fees paid to use...

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