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Sierra Club v. McLerran

ELR Citation: 45 ELR 20052
Nos. 11-CV-1759-BJR, (W.D. Wash., 03/16/2015) (Rothstein, J.)

A district court held that although EPA did not violate its nondiscretionary duty under the CWA to either approve or disapprove a TMDL for PCBs in the state of Washington, it acted contrary to law in determining that a "Regional Toxics Task Force" was a suitable alternative. Environmental groups filed suit against EPA, arguing that Washington's failure to submit a PCB TMDL for the Spokane River amounted to a constructive submission. But the court disagreed. A constructive submission occurs only when a state has clearly and unambiguously abandoned its obligation to produce a TMDL. Here, the facts in the record show that the state lacked sufficient scientific data and had not satisfied certain pre-submission requirements, i.e., public notice and consultation. Accordingly, EPA did not err in finding no constructive submission has yet occurred on the grounds that significant scientific information and procedural gaps remained. Nevertheless, EPA's approval of the Task Force as an alternative to the TMDL development—and to extend it over an indefinite period of time without adequate assurances that a TMDL will result—was arbitrary and capricious, an abuse of discretion, and contrary to law. EPA does not have the statutory authority to approve a Task Force in lieu of a TMDL. While states may pursue reasonable courses to reducing pollution in addition to establishing TMDLs, nothing in the CWA provides that states may pursue these courses in place of, or as a means of indefinitely delaying, a TMDL. On remand, EPA must work with the state to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which EPA and the state will evaluate progress; a reasonable end date, at which time the state will finalize and submit the TMDL for EPA's approval or disapproval; and firm commitments to reducing PCB production from known sources in the interim.