Umatilla Waterquality Protective Ass'n v. Smith Frozen Foods, Inc.

No. 96-657-JO (962 F. Supp. 1312) (D. Or. September 23, 1997)

A district court denies an environmental group's motion to reconsider its previous holding that a corporation's national pollution discharge elimination system (NPDES) permit does not apply to any discharges to groundwater. The court first holds that the U.S. Environmental Protection Agency's (EPA's) recent interpretations of the Federal Water Pollution Control Act (FWPCA) do not indicate that the NPDES permit requirement applies to discharges to groundwater that is hydrologically connected to surface water. EPA has never offered a definitive or formal interpretation on this matter that warrants the court's deference. Although EPA has asserted that in limited cases the NPDES program may apply to hydrologically connected groundwater, EPA has not actively attempted to make this interpretation comprehensive. In addition, the legislative history of the FWPCA, its language, and the 24-year history of state regulation indicate that the NPDES permit requirement does not apply to any discharges to groundwater. Such discharges are, in commonsense terms, discharges to groundwater, not discharges to navigable waters subject to the NPDES permit requirement. The court then vacates the stay on the case, because the Ninth Circuit denied the interlocutory appeal regarding the issue of discharges to groundwater.

[A prior decision in this litigation is published at 27 ELR 21411.]

Counsel for Plaintiff
Bill Kloos
Johnson, Kloos & Sherton
767 Willamette St., Ste. 203, Eugene OR 97401
(541) 687-1004

Counsel for Defendant
Jerry B. Hodson
Miller, Nash, Wiener, Hager & Carlsen
111 SW 5th Ave., Ste. 3500, Portland OR 97204
(503) 224-5858

[28 ELR 20273]

Jones, Judge:

Opinion and Order

On April 9, 1997. I granted partial summary judgment to defendant in this case by deciding that the Clean Water Act's National Pollutant Discharge Elimination System (NPDES) permit requirement does not apply to any discharges to groundwater. I also certified that question to the Ninth Circuit for interlocutory appeal and stayed the case in the interim. The Ninth Circuit refused to hear the interlocutory appeal.

This case is now before me on plaintiff's motion (#84-1) to reconsider my April 9 opinion and defendant's motion (#93) to vacate the stay and set a ruling date. For the reasons discussed below I DENY plaintiff's motion to reconsider, GRANT defendant's motion to vacate the stay, and set a ruling schedule.

Discussion

A. Deference to EPA Is Not Warranted; Therefore, Plaintiffs' Motion for Reconsideration Is Denied

Plaintiff argues that since I rendered my April 9 decision, EPA has formally interpreted the Clean Water Act so that the NPDES permit requirement applies to discharges to groundwater that is hydrologically connected to surface water. However, in none of plaintiff's exhibits does EPA definitively interpret the Clean Water Act, for purposes of the NPDES permit requirement, as requiring NPDES permits for discharges to hydrologically-connected groundwater. Moreover, the indications that EPA has given that it would like to apply the Clean Water Act to discharges to hydrologically-connected groundwater contradict its long-standing regulatory practice, and EPA has made no efforts to universally enforce its relatively recent change in interpretation. As such, EPA's tentative assertions in certainlimited contexts that it will apply the Clean Water Act's NPDES permit requirement to hydrologically connected groundwater are not entitled to Chevron deference. In addition, as this court noted in its prior opinion, both the legislative history of the Act and the 24-year history of state regulation indicate that the NPDES permit requirement does not apply to any discharges to groundwater.

1. Chevron Deference Applies to Definitive and Formal Interpretations of Statutes, and EPA Has Offered No Such Construction

The Supreme Court has instructed federal courts "that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer * * *." Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 [14 ELR 20507] (1984). However, the courts are not to follow blindly any and all "interpretations" that agencies might offer.

In general, Chevron deference to statutory constructions by agencies applies when the court has some definitive, formal, and judicially reviewable construction before it. Thus, courts "must reject administrative constructions of the statute, whether reached by adjudication or by rule-making, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement." Federal Election Comm'n v. Democratic Senatorial Campaign Committee, 102 S. Ct. 38, 42 (1981) (emphasis added; citations omitted); see also Bowen v. Georgetown University Hospital, 109 S. Ct. 468, 473-74 (1988) (holding that Chevron deference does not apply "to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice"); Mallott & Peterson v. Director, Office of Workers' Compensation Programs, Dept. of Labor, 98 F.3d 1170, 1172, (9th Cir. 1996) (holding that Chevron deference "extends not only to regulations articulating the Director's interpretation, but also to litigating positions asserted by the Director in the course of administrative adjudications"); Pfaff v. U.S. Dept. of Housing & Urban Development, 88 F.3d 739, 747 (9th Cir. 1996) (holding that deference applies to interpretations resulting from administrative rulemakings or administrative adjudications). See also Atchison, Topeka & Santa Fe Ry. Co v. Pena, 44 F.3d 437, 442 (7th Cir. 1994) (holding that the degree of deference due to interpretive rules depends on several factors, including "its consistency with earlier and later agency pronouncements").

EPA has never promulgated a regulation globally interpreting the Clean Water Act's NPDES permit requirement to apply to any discharges to groundwater. Nor is the court aware of any such agency adjudicatory position. Therefore, EPA has issued no formal interpretations directly on point.

When EPA has interpreted the NPDES permit requirement's relationship to groundwater in less global situations, moreover, its most definitive statements on this issue are that "the Clean Water Act does not give EPA authority to regulate groundwater quality through NPDES permits." 62 Fed. Reg. 20177, 20178 (April 25, 1997). See also 55 Reg. 47990, 47997 (Nov. 16, 1990) (stating that discharges to waters of the United States for NPDES purposes do not include discharges to groundwater).

Moreover, even when EPA has suggested that it may have authority to require NPDES permits for discharges to groundwater that is hydrologically connected to surface water, it is done in a tentative and limited manner. Thus, "the only situation in which groundwater may be affected by the NPDES program is when a discharge of pollutants to surface waters can be proven to be via groundwater." 62 Fed. Reg. 20177, 20178 (April 25, 1997) (emphasis added). Similarly, "many discharges of pollutants from a point source to surface water through groundwater (that constitutes a direct hydrological connection) also may be a point source discharge to waters of the United States." EPA FINAL GUIDE MANUAL ON NPDES REGULATIONS FOR CONCENTRATED ANIMAL FEEDING OPERATIONS, § 2.1 (Dec. 1995).¹ See also 55 Fed. Reg. 47990, 47997 (Nov. 16, 1990) (parenthetically noting that the NPDES permit requirement could apply to discharges to groundwater when "there is a hydrological connection between the groundwater and a nearby surface water body" but citing to court opinions, not its own interpretation, for authority). The two exceptions that the court could find were: (1) Region VIII of EPA, which apparently is requiring NPDES permits for mining discharges to hydrologically-connected groundwater, and (2) EPA's 1991 statement in response to a comment to its amendments to the water quality standards regulation that pertains to Indian tribes that "the Act requires NPDES permits for discharges to groundwater when there is a direct hydrological connection between groundwaters and surface waters." 56 Fed. Reg. 64876, 64892 (Dec. 12, 1991).

Nothing in plaintiffs' exhibit or their argument convinces me that EPA has recently interpreted the NPDES permit requirement as applying to any discharges to groundwater in a manner sufficiently comprehensive, [28 ELR 20274] definitive, or formal to deserve this court's deference. Moreover, EPA has taken no steps to require delegated states to implement its limited assertions that the Clean Water Act's NPDES permit requirement applies to discharges to hydrologically-connected groundwater. Finally, these recent assertions are inconsistent with a 24-year formal regulatory history to the contrary, as the April 9 opinion details. Umatilla Waterquality Protective Ass'n, 962 F. Supp. at 1319. The agency record, therefore, is one of a long-term definitive interpretation of no applicability, followed in recent years by assertions in limited contexts that the NPDES program "may" apply to hydrologically-connected groundwater but with no active attempt to make that asserted interpretation comprehensive. As such, this court need not, and will not, defer to EPA's recent, limited interpretations.

2. The Language of the Act, Its Regulatory History, and Its Legislative History Indicates That Congress Intended to Leave Regulation of Groundwater to the States

Another aspect of Chevron deference is congressional intent. As the Supreme Court has recognized, "the judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A., 467 U.S. at 843 n.9 (citations omitted); Natural Resources Defense Council v. U.S. Dept. of the Interior, 113 F.3d 1121, 1124 [27 ELR 20971] (9th Cir. 1997) (quoting this point from Chevron, U.S.A.).

As such, a court reviewing a statute that an agency has purportedly interpreted must initially view that interpretation in light of congressional intent:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron, U.S.A., 467 U.S. at 842-43.

"In ascertaining whether the agency's interpretation is a permissible construction of the [statutory] language, a court must look to the structure and language of the statute as a whole." National R.R. Passenger Corp. v. Boston & Me. Corp., 112 S. Ct. 1394, 1401 (1992) (citations omitted). A court is not bound by an agency interpretation that "has no foundation in the statute or its legislative history." Quinlivan v. Sullivan, 916 F.2d 524, 526-27 (9th Cir. 1990) (citing Livermore v. Heckler, 743 F.2d 1396, 1405 (9th Cir. 1984).

As I noted in my April 9 opinion, the language of the Clean Water Act itself and that Act's legislative history indicate that Congress intended that the NPDES permit requirement would not apply to discharges to groundwater. Umatilla Waterquality Protective Ass'n Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1318-19 [27 ELR 21411] (D. Or. 1997). While neither the statute nor the legislative history absolutely prohibits an interpretation that the NPDES permit requirement applies to discharges of pollutants to hydrologically-connected groundwater, they do strongly indicate that such an interpretation was not Congress's intent.

I also note that, shortly after I issued the April 9 opinion in this case, the Tenth Circuitarticulated a "common-sense" approach to the definition of "discharge * * * into the navigable waters" for NPDES purposes in which it held that a discharge of pollutants into another medium—in that case, air—that incidentally reached navigable waters were beyond the Act's reach. Chemical Weapons Working Group, Inc. v. United States Department of the Army, 111 F.3d 1485, 1490 [27 ELR 21130] (10th Cir. 1997). In essence, the Tenth Circuit distinguished discharges where navigable waters were the immediate destination from discharges where the pollutants actually mixed in with an intervening medium: the former could constitute discharges to navigable water for Clean Water Act purposes, while the latter were, in common-sense terms, discharges to the intervening medium and not discharges to navigable water.² The same logic applies equally persuasively to discharges to groundwater: such discharges are, in common-sense terms, discharges to groundwater—not discharges to navigable waters subject to the NPDES permit requirement.

In the absence of a clear and global interpretation from EPA that delegated states must adopt as a modification to their often longstanding NPDES permitting programs, the language of the Act, the regulatory history of the Act, and the Act's legislative history leave this court convinced that the NPDES permit requirement does not apply to any discharges to groundwater. As such, plaintiffs' motion for reconsideration is DENIED.

B. The Order Staying This Case Is Vacated

In the April 9, 1997 Order and Opinion, I stayed this case until the parties finished their interlocutory appeal to the Ninth Circuit. The parties did attempt to take the question to the Ninth Circuit, but on June 9 and July 31, 1997, the Ninth Circuit denied them permission to appeal. Therefore, the purpose of the stay has been fulfilled, and plaintiff has concurred in defendant's motion to vacate the stay. As such, the motion to vacate is GRANTED and this court will issue its opinion on the remaining issues within 60 days of the date of this order.

IT IS SO ORDERED.

1. At oral argument, the parties debated at length whether this language is permissive or tentative. The court interprets EPA's "may" to mean either "might as a legal matter" or "might depending on the exact circumstances." Even so, EPA's statements are tentative, in the sense that they fail to articulate regulatory boundaries: if "many discharges of pollutants from a point source to surface water through groundwater (that constitutes a direct hydrological connection) also may [might] [can] be a point source discharge to waters of the United States," subject to the NPDES permit requirement, then some discharges from point sources through hydrologically connected groundwater to surface water are not. Thus, even when EPA asserts the applicability of the NPDES program, it is decidedly unclear as to where it intends to draw the regulatory line.

2. The Tenth Circuit thus neatly answers plaintiffs' argument that fish stocking of lakes and other navigable waters via air drops are subject to the NPDES permit requirement. The fish's destination is the water, and they never mix in with the air. As such, no common-sense view of fish stocking would suggest that the fish are discharged to air.