Columbia River United v. Reilly

No. C90-1667Z (W.D. Wash. May 17, 1992)

The court holds that the U.S. Environmental Protection Agency's (EPA's) conditional approval under § 304(l) of the Federal Water Pollution Control Act (FWPCA) of individual control strategies (ICSs) for eight pulp and paper mills does not moot a lawsuit challenging the agency's failure to establish and implement ICSs for the eight mills. EPA's conditional approval of the ICSs, which were designed to remove measurable dioxin discharges from the eight mills, was a step toward discharging its duties under the FWPCA, but the agency expressly conditioned its approval of the eight ICSs on issuance of final permits. The court holds that it has subject matter jurisdiction. EPA's conditional approval of the state's draft permits does not relieve the agency of any further responsibilities under the FWPCA. The court holds that injunctive relief is not appropriate because EPA expressly conditioned its March 8, 1991, approval of the draft permits on the state's issuance of final permits by June 4, 1991. Final permits for some but not all of the identified dischargers have now been issued. The court concludes that EPA's compliance with the FWPCA should be judged after that time.

Counsel for Plaintiffs
Victor M. Sher
Sierra Club Legal Defense Fund
216 1st Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Brian Kipnis
U.S. Attorney's Office
800 5th Ave., Ste. 3600, Seattle WA 98104
(206) 442-7979

Dianne Regas
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

[22 ELR 20341]

Zilly, J.:

Order Denying Motion for summary Summary Judgment and Motion to dismiss Dismiss

THIS MATTER comes before the Court upon plaintiffs' motion for summary judgment and injunctive relief, docket no. 6, and the federal defendants' motion to dismiss for mootness, docket no. 38. The Court took both motions under advisement following oral argument on April 19, 1991. The parties supplemented the record earlier this month through three letters addressed to the Court. Having reviewed all of the materials submitted, including those submitted by amicus curiae Northwest Pulp and Paper Association, and being fully advised, the Court hereby DENIES WITHOUT PREJUDICE plaintiffs' motion for summary judgment and the federal defendants' motion to dismiss.

I. Background

The Clean Water Act, as amended in 1987, requires states to identify navigable waters not expected to achieve applicable water quality standards despite application of technology-based controls ("B List") and the dischargers believed to be preventing or impairing water quality ("C List"). 33 U.S.C. § 1314(l)(1)(B), (C). States are further required to develop for each C List discharger an "individual control strategy" ("ICS") designed to achieve water quality standards within three years. 33 U.S.C. § 1314(l)(1)(D). Congress directed these tasks be completed no later February 4, 1989.

The Clean Water Act preserves to the states primary responsibility for attaining water quality standards, subject to federal review and right of intervention. It is the declared policy of Congress "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate [water] pollution. . . ." 33 U.S.C. § 1251(b). More than one court has remarked on "the strong current of federalism in the Clean Water Act. . . ." District of Columbia v. Schramm, 631 F.2d 854, 863 [10 ELR 20520] (D.C. Cir. 1980); see also American Paper Institute, Inc. v. United States Environmental Protection Agency, 890 F.2d 869, 873 [20 ELR 20482] (7th Cir. 1989) ("American Paper I") (cases cited therein). The primacy of the state role is not, of course, an end in itself but must properly be viewed as the desired method for achieving Congress' overriding aim to clean and restore our nation's waters.

Nowhere is this spirit of cooperative federalism more pronounced than in the 1987 amendments regulating the discharge of toxic pollutants. See Water Quality Act of 1987, Pub. L. No. 100-4, § 308(a), 101 Stat. 7, 38-39 (codified at 33 U.S.C. § 1314(l) (1988)). Under the newly added section 1314(l), the U.S. Environmental Protection Agency ("EPA") is charged with reviewing the B and C Lists and individual control strategies submitted by the states. Congress provided that this initial federal oversight is to occur not later than June 4, 1989. 33 U.S.C. § 1314(l)(2). The federal role increases significantly in the event a state fails tosubmit the required information or its submission is disapproved in whole or part. Under such circumstances the EPA is required to implement, "in cooperation with such State," the Act's requirements by June 4, 1990. 33 U.S.C. § 1314(l)(3).

The essential facts in this case are undisputed. The state of Washington, through its Department of Ecology, completed its submission of the information required by 33 U.S.C. § 1314(l)(1) four months after the February 4, 1989 deadline. The state listed marine sites and the Columbia River on its B List, and eight Washington pulp and paper mills on its C List. The state also submitted a proposed control strategy designed to remove measurable discharges of dioxin and other pollutants at each of the eight mills. On the same day they were submitted, June 9, 1989, the EPA approved the state's B and C Lists, but disapproved the proposed ICSs as "inconsistent with applicable regulatory and statutory requirements." Notice of the United States Environmental Protection Agency's Approvals and Disapprovals of Decisions Made by the State of Washington, at 5.

Upon the EPA's disapproval of Washington's ICSs, the federal role was transformed from oversight to one of cooperative intervention. The EPA was required under the Act to "implement" the ICS requirement not later than June 4, 1990. 33 U.S.C. § 1314(l)(3). Congress expressly provided that federal authority need not be exclusive; rather, the EPA was required to develop ICSs for each identified discharger "in cooperation" with the state, and after notice and opportunity for public comment. 33 U.S.C. § 1314(l)(3). Federal regulations authorize the EPA to assume exclusive ICS drafting authority, but only after notice to the state. 40 C.F.R. § 123.46(f) (1990).

The June 4, 1990 deadline passed without the adoption of a state-developed control strategy or a federally-crafted substitute. The EPA candidly acknowledged at oral argument that this was not in strict compliance with the requirements of the Clean Water Act. See 33 U.S.C. § 1314(l)(3). The agency cited ongoing state-federal cooperation and the state's continued work in this area as the reasons for not intervening.

In August and September 1990, the state belatedly submitted to the EPA draft National Pollutant Discharge Elimination System ("NPDES") permits for the eight listed pulp and paper mills.¹ At approximately the same time, three of the mills filed suit in Thurston County Superior Court challenging their inclusion on the state's C List. The Department of Ecology reportedly relied upon a narrative water quality criterion, see WAC 173-201-047 (3), (4), to identify the point source dischargers listed under 33 U.S.C. § 1314(l)(1)(C).² This criterion was also incorporated in the draft NPDES permits.

Late last year Superior Court Judge William McPhee ruled that the state's use of the narrative criterion to list the three pulp and paper mills and to propose NPDES permits for them was invalid under the state's constitution and statutory rule-making procedures. Simpson Tacoma Kraft Co., et al. v. Department of Ecology, et al., No. 90-2-00398-9, slip op. 2-3 (Super Ct., Thurston City., Dec. 4, 1990). The court enjoined the state from issuing NPDES permits that reflect the water quality standard "until all applicable statutory [22 ELR 20342] procedures have been followed and a regulation establishing a numerical standard for [dioxin] has been duly and properly promulgated." Slip op. at 3.

On March 8, 1991, while plaintiffs' motion for summary judgment was pending, the EPA "conditionally approved" the draft NPDES permits for all eight listed pulp and paper mills, including the three mills involved in the state court litigation. The EPA imposed two conditions to final approval:

1) The ICS must be revised to include a compliance date set for three years from the establishment of the ICS, i.e.[,] three years from [March 8, 1991].

2) The ICS must be issued as a final NPDES permit by June 4, 1991.

Notice of the United States Environmental Protection Agency's Decisions on the Listing of Waters, Point Sources and Pollutants for the State of Washington, at 9. The EPA justified its action, despite the injunction entered in Simpson Tacoma Kraft, upon its belief that the state would be able to meet the June 1991 deadline:

The U.S. EPA decided to conditionally approve the draft [NPDES] permits as individual control strategies despite the court's injunction [in Simpson Tacoma Kraft] because the U.S. EPA continues to believe that Washington can issue the permits by the U.S. EPA's deadline of June, 1991. . . . [The] EPA believes/ that the state will make every effort to issue the permits by June, 1991. Until the U.S. EPA is convinced otherwise, we plan to continue to allow the state to retain its normal permitting authority.

Id. at 3-4.

The EPA now takes the position that its actions render moot the claims raised in the complaint. The agency further alleges a loss of subject matter jurisdiction under the citizen suit provision of the Clean Water Act. See 33 U.S.C. § 1365(a)(2). The EPA moves for dismissal on either basis. Plaintiffs counter that they are entitled to summary judgment and move this Court to order the EPA to assume exclusive permitting authority.

II. Legal Analysis

The mootness doctrine finds its source in the Article III requirement that federal courts decide only "cases or controversies." The burden on the EPA of proving this case is moot "is a heavy one." County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 649, 99 S. Ct. 1379 (1979). "An action is moot when "'the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome."'" Western Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287, 1290 [20 ELR 20927] (9th Cir. 1990), cert. denied, __ U.S. __ 59 U.S.L.W. 3501 (1991) (quoting Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)).

The actions of the EPA to date do not render moot the claims raised in the complaint. This lawsuit challenges the EPA's failure to establish and implement ICSs for eight Washington pulp and paper mills. On March 8, 1991, the EPA took a significant step toward discharging its responsibilities under the Clean Water Act. However, the agency expressly conditioned its approval of Washington's draft NPDES permits upon issuance of final permits by June 4, 1991.

The provisional nature of the EPA's actions could not be more evident: At any time prior to the issuance of the final permits the EPA can withdraw the state's permit-issuing authority upon written notice. 40 C.F.R. § 123.46(f).³ The explanatory comments to the EPA's regulations underscore a continuing federal role, with attendant duties, under these circumstances:

EPA believes that to ensure success of the section 304(l) [33 U.S.C. § 1314(l)] program no ICS should be unconditionally approved until it represents the state's final decision to implement controls. If an approval contingent upon a final decision by a state must be subsequently disapproved, EPA must have sufficient time to prepare an ICS by its deadline of June 4, 1990.

54 Fed. Reg. at 23,888; see also 54 Fed. Reg. at 23,894. ("[The] EPA is mindful of the necessity of expediting the permit-issuance process where agreement cannot be reached with the state, especially considering that Congress has imposed deadlines for the issuance of the ICSs and the implementation of the effluent limits.").

The Court has been advised that on May 10, 1991, the state issued final NPDES permits for six of the eight mills.⁴ The Court has also been advised that Longview Fibre Company, one of the six permitees and a party to the state court litigation, has sought to block enforcement of the permit in Thurston County Superior Court. The merits of that legal challenge or any other challenges relating to the sufficiency of the state permits are not before this Court. The issue here is whether the EPA has failed to perform a nondiscretionary act or duty under the Clean Water Act. That answer will depend of course upon whether the state succeeds in issuing final permits for all eight listed pulp and paper mills by June 4, 1991. Accordingly, the Court denies without prejudice the federal defendants' motion to dismiss.

The federal defendants also argue a loss of subject matter jurisdiction under 33 U.S.C. § 1365(a)(2). That provision permits citizens to file suit against the EPA Administrator "where there is alleged a failure by the Administrator to perform any act or duty under this Chapter which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2). This argument, like the mootness challenge discussed above, rests upon the faulty assumption that the EPA was relieved of any further responsibilities under the Clean Water Act upon its conditional approval of the state's draft permits. Dismissal on this basis is also denied without prejudice.

There remains to be considered plaintiffs' motion for summary judgment and injunctive relief. Plaintiffs make's very persuasive argument that the EPA's discretion to seek an accommodation with Washington does not continue beyond expiration of the statutory and regulatory deadlines.⁵ On the other hand, the administrative process that plaintiffs seek to prod may be nearing fruition. Federal intervention at this juncture runs directly counter the spirit of cooperative federalism embodied in the Clean Water Act, see American Paper I, 890 F.2d at 873-75, and may ultimately prove to be counterproductive for the standpoint of furthering Congress' aim of addressing "toxic hotspots" in an expeditious manner, see P.H. Glatfelter Co. v. United States Environmental Protection Agency, 921 F.2d 516, 518 [21 ELR 20656] (4th Cir. 1990).

Plaintiffs ask this Court to invoke its equitable power to order injunctive relief. The Court concludes it would be imprudent to do so at this time. The EPA expressly conditioned its March 8, 1991 approval of the draft permits upon the state's issuance of final permits by June 4, 1991. Final permits for some but not all of the identified dischargers have now been issued. With little case law to serve as guidance, this Court believes that the EPA's compliance with the Clean Water Act should properly be judged after that time. See American Paper Institute, Inc. v. United States Environmental Protection Agency, 726 F. Supp. 1256, 1259 [20 ELR 20486] (S.D. Ala. 1989) (requiring final agency action under the Administrative Procedures Act) ("American Paper II").

In summary, plaintiffs' motion for summary judgment and the federal defendants' motion to dismiss are hereby DENIED WITHOUT PREJUDICE. The parties are ORDERED to prepare and file a joint status report no later than June 14, 1991.

IT IS SO ORDERED.

The Clerk of this Court is directed to send uncertified copies of this order to all counsel of record. DATED this 17th day of May, 1991.

1. EPA regulations allow states to issue draft NPDES permits in satisfaction of the ICS requirement, provided (1) the state was unable to issue a final permit on or before February 4, 1989, and (2) the draft permit includes a schedule indicating that the final permit will issue on or before February 4, 1990. See 40 C.F.R. § 123.46(c). These dates are significant. Should the EPA ultimately have to disapprove the final permit, the agency "must have sufficient time to prepare an ICS by its deadline of June 4, 1990." 54 Fed. Reg. 23,867, 23,888 (June 2, 1989).

2. Washington's narrative criterion incorporates by reference a federally developed numeric water quality standard for dioxin. See USEPA Quality Criteria for Water, 1986.

3. "[The] EPA shall review, and approve or disapprove, the individual control strategies prepared under [33 U.S.C. § 1314(l). . . . At any time after the Regional Administrator disapproves an ICS (or conditionally approves a draft permit as an ICS), the Regional Office may submit a written notification to the State that the Regional Office intends to issue the ICS. Upon mailing the notification . . . exclusive authority to issue the permit passes to ]the[ EPA." 40 C.F.R. § 123.46(f).

4. This information was received in the form of a letter from defense counsel, dated May 13, 1991. The Court has ordered the Clerk to make this correspondence and two earlier ones part of the record herein.

5. The Court takes a dim view of EPA's suggestion at oral argument that the agency may delay indefinitely a decision on whether to implement ICSs for the state of Washington. This statement appears fundamentally irreconcilable with the EPA's statutory obligations under 33 U.S.C. § 1314(l)(3) and the terms of its conditional approval of the state's draft permits.