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SAN FRANCISCO BAYKEEPER, INC. v. BROWNER

February 22, 2001

SAN FRANCISCO BAYKEEPER, INC., ET AL., PLAINTIFFS
v.
CAROL BROWNER, ET AL., DEFENDANTS. CALIFORNIA ASSOCIATION OF SANITATION AGENCIES, ET AL., PLAINTIFFS V. CAROL BROWNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Legge, District Judge.

ORDER ON MOTIONS

Introduction

Plaintiffs in C-00-0132 have moved to file a second amended complaint. The proposed amendment is not opposed, and IT IS THEREFORE ORDERED that plaintiff's proposed second amended complaint be filed. All further references in this order to plaintiffs' claims are to those in the second amended complaint (the "SAC").

Generally speaking, the plaintiffs in C-00-0132 are several public interest groups which "seek to remedy the failure of the EPA to perform its non-discretionary duties to identify and restore water quality for polluted waters throughout the state of California." SAC ¶ 1. More specifically, the plaintiffs allege that the EPA has failed to discharge its non-discretionary duties under section 303(d)(2) of the Clean Water Act to establish total maximum daily loads of pollutants for water quality limited segments of waters of the United States located in California. Id.

Again generally speaking, the plaintiffs in C-00-0424 are public sanitation agencies and treatment works in California, acting through their associations. They allege that the EPA has violated both federal and state law by improperly approving submissions by the state of California to the EPA. The specific causes of action alleged in C-00-0424 are not identical to those in C-00-0132, nor is the relief sought identical. The cases are consolidated, but this order specifically discusses only the claims in C-00-0132. The third action in this group of related cases is Western States Petroleum Association v. Browner, No. C-00-1815. That action is proceeding on a schedule separate from the above two consolidated cases, and this order makes no direct rulings on the cause of action in that case.

The Pending Motions

The motions now before this court are the following, listed in the order of their filing: (1) Defendant's*fn1 motion for judgment on the pleadings regarding the third and fourth claims; however, the fourth claim has now been amended by the SAC. And this motion is for practical purposes subsumed within the motions for summary judgment. (2) Plaintiffs' motion for summary judgment. The motion seeks summary judgment on the issues of liability only, and it pertains to all four of plaintiffs' claims in the SAC. (3) Defendant's cross motion for summary judgment on all claims in the SAC.

The motions have been briefed, argued, and submitted for decision. The court has reviewed: the moving and opposing papers, the record of the case, the records submitted in support of and in opposition to the motions, the records of which this court can take judicial notice, and the applicable authorities. The court is resolving these motions under the standard of Rule 56 of the Federal Rules of Civil Procedure; that is, resolving issues of law and issues of fact where there is no genuine issue of material fact. The parties agree that the issues are primarily ones of law.

The Statutory Framework

These suits specifically concern section 303(d) of the CWA; 33 U.S.C. § 1313(d). That section requires the states to identify waterbodies within their boundaries that do not meet water quality standards, and to establish a priority for ranking those polluted waterbodies based on the severity of the pollution and the type of use of that waterway. 33 U.S.C. § 1313(d)(1)(A). The regulations use the term "water quality limited segments" (WQLSs) to identify such waters. See 40 C.F.R. § 130.2(j).

Section 303(d) requires each state to determine how much of a pollutant a WQLS can endure before its quality becomes impaired. This determination is known as the Total Maximum Daily Load ("TMDL") calculation. The TMDL calculation must be made on a waterbody-specific and a pollutant-specific basis wherever a pollution problem has been identified and other regulatory approaches are not resolving the problem. The TMDL contemplates establishing Waste Load Allocations ("WLAs") and Load Allocations ("LAs") for the sources of the pollutants, to ensure that the sum of all pollutants does not exceed the TMDL.

In other words, the CWA requires each state to identify the maximum amount of each type of pollutant that a waterbody can handle without violating water quality standards. See 33 U.S.C. § 1313(d)(1)(C).

A National Pollutant Discharge Elimination System ("NPDES") permit is required for all discharges of a pollutant. See 33 U.S.C. § 1342(a). Those permits are issued by the states; 33 U.S.C. § 1342(a)(5) and (b). Under the regulations to the CWA, there can be no "new source" or "new discharger," if the discharge will contribute to a violation of water quality standards. 40 C.F.R. § 122.4(i). Thus, there cannot be a new source or a new discharger if the waterbody is a WQLS impaired waterway unless the state completes a TMDL for that WQLS beforehand. Id.

The CWA requires each state to submit to the EPA a list of WQLSs, and to establish TMDLs "not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D)," and from "time to time" thereafter. See 33 U.S.C. § 1313(d)(2). The EPA first identified the pollutants on December 28, 1978. See 43 Fed.Reg. 60,662. Thus, the states were required to submit to the EPA a list of WQLSs and to establish TMDLs no later than June 26, 1979. The EPA regulations require the states to make section 303(d) submissions biennially, by October 22, 1992 and by April 1 for every even-numbered year thereafter. See 40 C.F.R. § 130.7(d)(1).

These cases concern the duties of the EPA with respect to the lists submitted or not submitted by the states. The EPA is obligated to approve or disapprove the states' section 303(d) lists within 30 days. See 40 C.F.R. § 130.7(d)(2). And the EPA may approve a submission only if it meets the requirements set forth in paragraphs 1 and 2 of section 303(d) of the Act. Id. According to plaintiffs, the EPA has a nondiscretionary duty to establish TMDLs for the identified WQLSs if a state does not meet the requirements of the CWA. See 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.2(g), (h) and (i) and 130.7(d)(2).

Allegations Regarding Waters in California

Plaintiffs bring this action against the EPA under the authority of 33 U.S.C. § 1365(a)(2). That section allows a citizen's suit against the EPA for an alleged failure of that agency to perform any act or duty "which is not discretionary" with the EPA. Id. Plaintiffs allege that the EPA has failed to perform such duties. See Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994).

The essence of plaintiffs' complaint is that California has failed to establish TMDLs for most of its polluted water bodies. More specifically, plaintiffs assert that California's lists of its WQLSs did not include the TMDLs as required by the CWA. See SAC ¶¶ 55-57. The EPA has allegedly taken no action or has approved defective TMDL lists for the WQLSs. See SAC ¶¶ 59-61. Plaintiffs contend that as a result of California's failures under the CWA, the EPA had and has a non-discretionary duty to establish TMDLs for the WQLSs within California. And plaintiffs assert that the EPA also has a duty to revoke California's NPDES permit-issuing authority until such time as California complies with the CWA.

The record is clear that the EPA has approved some of California's lists, or has issued some documents defining TMDLs for several of California's waterbodies. The EPA has also entered into consent decrees relating to the establishment of TMDLs in several regions of the state. On May 4, 2000 the EPA issued a report regarding the California's TMDL program. That report is discussed in more detail below.

The SAC in C-00-0132 makes four claims for relief. The first alleges that the EPA has failed to disapprove of California's inadequate section 303(d) submissions. The second alleges that the EPA has failed to establish TMDLs for California. The third alleges that the EPA has failed to incorporate WLAs into all NPDES permits in California. The fourth alleges that the EPA improperly approved California's submissions for two of its waterways. In addition to asserting that the EPA has violated the CWA, plaintiffs also contend that the EPA's actions or failures to act are violations of the Administrative Procedure Act; 5 U.S.C. § 706 (the "APA").

The SAC asks for declaratory and injunctive relief. Plaintiffs' present motion for summary judgment deals only with the issues of liability, and not with remedies. But because the claims of the complaint all seek equitable relief, the issues of liability and remedy are not so neatly divided. Defendant EPA's cross motion in essence seeks a summary judgment of no liability on all four claims.

This type of litigation is not unique to California or to this district. Similar issues, if not identical in their facts and their procedures, have arisen in the state of Alaska and have been addressed by a district court and the Ninth Circuit; Alaska Center for Environment v. Browner, 20 F.3d 981 (9th Cir. 1994) (ACE III); 796 F. Supp. 1374 (W.D.Wash. 1992) (ACE II); 762 F. Supp. 1422 (W.D.Wash. 1991) (ACE I). Similar issues have also arisen in two other states in this circuit. Friends of the Wild Swan v. U.S.E.P.A, 1999 WL 33229980 (D.Mont. 1999), now on appeal to the Ninth Circuit; and Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962 (W.D.Wash. 1996). Similar cases from other states are: Natural Resources Defense Council v. Fox, 909 F. Supp. 153 (S.D.N Y 1995) (NRDC I); 30 F. Supp.2d 369 (S.D.N.Y. 1998) (NRDC II); 93 F. Supp.2d 531 (S.D.N.Y. 2000) (NRDC III); Hayes v. Browner, 117 F. Supp.2d 1182 (N.D.Okla. 2000); Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D.Ga. 1996) Sierra Club v. Browner, 843 F. Supp. 1304 (D.Minn. 1993) Sierra Club v. U.S.E.P.A, WMN 97-3838 (D.Md. 2000); Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (arising from Illinois and Indiana).

Procedural Issues

There are several important procedural points which this court must consider in its analysis of the substance of these motions.

First, the allegations of the SAC and the parties' motions must be considered under both the Clean Water Act and the Administrative Procedure Act. Plaintiffs sue under both statutes. And this court's jurisdiction and powers are different under each. Under the CWA, plaintiffs must establish that the EPA has failed to perform a non-discretionary duty. While under the APA, plaintiffs must establish that the EPA either failed to act or took inadequate action in violation of 5 U.S.C. § 706. Under that section, plaintiffs must establish (1) that the EPA's actions were "arbitrary and capricious" under Section 706(2)(A), or (2) that the EPA "unlawfully withheld" or "unreasonably delayed" its actions under Section 706(1). The standards of analysis are different under those statutes.

It is also important that the relief sought in this action is entirely declaratory and injunctive relief. No damages are sought. This court must therefore be concerned with what is or what is not being done presently. The past failures of the EPA to take action or to act adequately are of course relevant to the present circumstances. But the primary time-frame for the analysis of the need for declaratory or injunctive relief is the present level of performance by the EPA of its statutory duties. This point was noted by the district court in NRDC III, 93 F. Supp.2d at 536.

The present level of performance of their statutory duties by both the state of California and the EPA is described in the EPA's report of May 2000, U.S. EPA Region 9, California TMDL Program Review (2000). Plaintiffs assert that the report is inadmissible hearsay. But the report is a part of the administrative record of the EPA, which the court must analyze in its review of plaintiffs' claims under the APA. It also identifies the actions and inactions of the EPA which are being attacked under the CWA. And it is admissible evidence of the functioning California's TMDL program at the present time, which is the relevant time for consideration of equitable relief. The district court in New York considered a similar document, an agreement between the state of New York. and the EPA, in evaluating whether injunctive relief was appropriate; NRDC III, 93 F. Supp.2d at 549.

Does EPA Have A Non-Discretionary Duty To Establish TMDLs For Waters in California?

The issue that is central to plaintiffs first, second and third claims of the SAC is whether the EPA has a non-discretionary duty to establish TMDLs for California's waters, because of California's alleged failures to do so in compliance with the CWA. The parties' cross motions focus on this key issue. The issue arises from section 303(d) of the CWA, and primarily subsection 303(d)(2); 33 U.S.C. § 1313(d)(2). That subsection reads as follows:

33 U.S.C. § 1313(d)(2) (emphasis added).

The statute is silent as to what the EPA's obligations are if a state fails to make a required submission. See ACE I, 762 F. Supp. at 1425. And the statute is silent as to the consequences if a state's submissions are made, but are arguably not in conformity with the CWA. The statute says only that the EPA must approve or disapprove of the state's submission within thirty days. As to the EPA's alleged obligation to itself establish a state's TMDLs, the statute says that such an obligation exists only "if the [EPA] disapproves" of the state's submissions; section 303(d)(2).

Plaintiffs contend that the EPA's duty to establish TMDL's for a state is triggered by either the failure of the state to submit a listing, or by the state submitting an inadequate listing.

The first case to conclude that the EPA has such a duty under the CWA if a state fails to submit any TMDL lists was the Seventh Circuit's decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984). Scott was a citizen's suit against the EPA for failure to prescribe TMDLs for pollutants discharged into Lake Michigan, after Illinois and Indiana had failed to do so. Because of the lengthy absence of any submissions by the states, the Seventh Circuit concluded that the EPA had an affirmative duty to treat the ...


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