Citizens for a Better Environment v. United States Environmental Protection Agency

No. 90-1124-JPV (N.D. Cal. November 6, 1990)

The court holds that it lacks subject matter jurisdiction in a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA) to compel the Environmental Protection Agency (EPA) to issue numerical water quality standards for South San Francisco Bay. The court first holds that EPA does not have a nondiscretionary duty to issue these standards under FWPCA § 303(c)(4)(B). The court finds no evidence that EPA's Administrator has made a determination that California is not meeting the requirements of the FWPCA. This determination would make EPA's duty to issue the standards mandatory. The court next holds that California's failure to adopt the standards by the statutory deadline does not create a mandatory duty for EPA to issue the standards. FWPCA § 303(c) contains no express deadlines directed at EPA.

Counsel for Plaintiffs
Michael Lozeau
Citizens for a Better Environment
942 Market St., San Francisco CA 94102
(415) 788-0690

Counsel for Defendants
Paul Locke, Ass't U.S. Attorney
Federal Bldg., 450 Golden Gate Ave., Rm. 16201, San Francisco CA 94102
(415) 556-1126

Marilyn Jacobsen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[21 ELR 20827]

Vukasian, J.:

Opinion

Introduction

Plaintiffs' Motion for Partial Summary Judgment and defendants' and intervenors' Cross Motion to Dismiss were scheduled to be heard on November 1, 1990. After a review of the briefs, this court considered it appropriate to submit the motions on the pleadings pursuant to Local Rule 220-1, and now DENIES plaintiffs' motion and GRANTS defendants' and intervenors' motion.

Background

1. Procedural History

Plaintiffs, four environmental groups, bring this law suit under the citizen suit provision of the Federal Water Pollution Control Act ("the Act"), 33 U.S.C. § 1365(a)(2), to compel the Environmental Protection Agency ("EPA") to take certain actions with respect to the South San Francisco Bay ("South Bay"). The complaint's First Claim for Relief, under which these motions are made, alleges that the EPA has shirked its duty under the Act to promulgate numerical water quality standards for the South Bay, a duty which plaintiff alleges became nondiscretionary when California failed to adopt such standards itself within a certain time period. Plaintiffs seek a declaratory judgment that EPA has a duty immediately to prepare and publish water quality criteria for the waters of the South Bay. Plaintiffs also seek in the First Claim for Relief an injunctive order compelling EPA immediately to comply with its statutory duty to adopt final rules by establishing water quality standards for certain listed toxics and any other toxics found in the South Bay.

Plaintiffs moved for partial summary judgment as to the First Claim for Relief. Defendants sought, and this court granted, an extended briefing schedule. In the interim, the municipal governments of three South Bay communities joined the suit as intervenors. Defendants and intervenors have submitted oppositions to plaintiffs' Motion for Summary Judgment, and have also moved to dismiss the complaint's first claim for relief for lack of subject matter jurisdiction.

The parties do not dispute that toxic pollutants are being discharged into the South Bay, impairing the quality of the water. The parties are also in accord that steps must be taken to control those discharges. The parties disagree, however, over what those steps should be. Since 1987, when the governing amendments of the Act took effect, neither California nor the EPA have issued numerical water quality standards for any toxic pollutants in the South Bay. California appears to be in the midst of a process which would eventually lead to issuance of such standards. EPA is standing by during the pendency of that process, and therein lies the legal dispute resolution of which will determine the outcome of these motions.

Discussion

1. Jurisdiction.

Suits under the citizen suit provision may only be brought to enforce nondiscretionary duties of the Administrator. 33 U.S.C. § 1365(a)(2). See, e.g., Sierra Club v. Train, 557 F.2d 485, 489 [7 ELR 20670] (5th Cir. 1977). The portion of the Act at issue in these motions provides that the Administrator shall promulgate water quality standards "in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements" of the Act. 33 U.S.C. § 1313(c)(4)(B). Although this language appears to be discretionary, requiring as it does a determination by the Administrator, plaintiff constructs an argument to assert that the duty has become mandatory. Resolution of this issue is key to both motions, for if the duty is discretionary, then this court is without jurisdiction of the complaint's first claim, whereas if it is mandatory, then a portion of the plaintiff's burden on summary judgment might be satisfied.

a. Administrator Has Not Made A Determination.

Plaintiffs make two arguments in an effort to demonstrate that the Administrator's duty under section 1313(c)(4)(B) as applied to the South Bay is mandatory. The first is that EPA has indeed made the requisite determination that California is not meeting the requirements of the Act. Had this determination been made, the duty under section 1313(c)(4)(B) would clearly have become mandatory.

[21 ELR 20828]

Plaintiffs point primarily to two EPA documents, an internal memorandum and a notice published by the Office of Water in the Federal Register, and also to two additional documents, as indicating that a finding has been made. The internal memorandum, which originated from a mere staff member, cannot be viewed as a determination by the Administrator. See Abbott Laboratories v. Gardner, 387 U.S. 136, 151 (1967). To hold the heads of federal agencies bound by the recommendations and discussions of their staff would be a strong disincentive for productive debate within the agencies. The Federal Register Notice similarly originated from a subordinate arm of EPA, and it was not the Administrator's determination. Furthermore, the Notice itself is preliminary and general in nature, so that even if the Office of Water could be said to make a determination for the Administrator, the Notice in question would not constitute such a determination. See Citizen Health Research Group v. Commissioner, Food & Drug Admin., 740 F.2d 21, 31 (D.C. Cir. 1984). The same reasoning applies to the third document, a Status Report issued in the Federal Register by the Office of Water. Finally, the fourth document was incorporated into the previously discussed Notice.

None of these documents relied on by plaintiffs indicate a determination by the Administrator, and there is not other evidence that the Administrator himself has made a determination. Thus, on its face, the statutory determination remains discretionary.

b. Administrator Is Entitled To Great Deference.

Plaintiffs' second argument is essentially that the determination in question is nondiscretionary because the Administrator must make the determination referred to in section 1313(c)(4)(B) in order to carry out the purposes of the Act. In a closely analogous case, it was held that EPA decisions under this section of the Act are entitled to great deference. Environmental Defense Fund v. Costle, 657 F.2d 275, 294 [11 ELR 20459] (D.C. Cir. 1981). This court is not prepared to undercut the deference owed to an agency determination.

The situation in the South Bay requires careful attention. The Act is clear, however, that primary responsibility for action lies with the states, and EPA is only to oversee state efforts and step in if those efforts are insufficient. Plaintiffs assert that California has missed the deadline for state compliance contained in section 1313(c)(2)(B), and that this renders the Administrator's determination nondiscretionary. But section 1313(c) contains no express deadlines directed at the EPA. Congress has restricted citizen suits to actions seeking to enforce "specific nondiscretionary clear-cut requirements." Mountain States Legal Foundation v. Costle, 630 F.2d 754, 766 [10 ELR 20769] (10th Cir. 1980). The notion that a deadline on the Administrator may arise by inference from another date only applies if the other date is clearly fixed, and only in rare instances. Sierra Club v. Thomas, 828 F.2d 783, 790 [17 ELR 21198] (D.C.Cir. 1987). Merely because a determination by the Administrator might trigger nondiscretionary duties does not render that determination nondiscretionary. NRDC v. Thomas, 885 F.2d 1067, 1073 [20 ELR 20174] (2d Cir. 1989).

EPA has interpreted the section to require state compliance by the first triennial review of water quality standards in the state after enactment of the 1986 amendments to the Act, with some added leeway for states close to completing reviews when the amendments took effect. This interpretation is entitled to great deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 [14 ELR 20507] (1984). California fell into the latter category, and is not in the midst of preparing the review which, under EPA's interpretation, must conform to the Act. If it fails to meet the standards of the Act in this review, California may place itself in the position described in section 1313(c)(4)(B) and the EPA's interpretation of the section. Despite intervenors' vigorous assertions, this court today makes no finding as to the substantive merit of the measures currently under consideration.

Even aside from the great deference due to agency determinations, the EPA's approach to monitoring the state's compliance with the Act appears reasonable. It clearly cannot support a finding that the Administrator has abused his discretion. Therefore, plaintiffs' second argument does not render the determination under section 1313(c)(4)(B) nondiscretionary.

c. The Meaning Of A Determination.

Plaintiffs additionally argue that the word "determines" as used in the statute means something other than to make a determination. This argument is unsupported, counterintuitive, and without merit.

d. Court Lacks Subject Matter Jurisdiction Over The First Claim.

Since the statute under which plaintiff brings the first claim for relief does not call for a nondiscretionary determination by the Administrator, this court lacks subject matter jurisdiction over the claim under the citizen suit provision.

2. Summary Judgment.

Because this court has determined that it lacks subject matter jurisdiction over the first claim for relief, plaintiffs' motion for summary judgment on that claim is rendered moot.

Order

In accordance with the foregoing discussion, it is HEREBY ORDERED as follows:

1. Plaintiffs' Motion for Partial Summary Judgment is DENIED;

2. Defendants' and intervenors' Motion to Dismiss the complaint's first claim for relief is GRANTED. The complaint's first claim for relief is HEREBY DISMISSED;

3. A Scheduling Conference in this matter is HEREBY SET for December 6, 1990, at 1:30 p.m.

IT IS SO ORDERED