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NATURAL RESOURCES DEFENSE COUNCIL v. FOX

December 11, 1995

NATURAL RESOURCES DEFENSE COUNCIL, INC.; ALAN G. HEVESI, Plaintiffs, against JEANNE FOX, Regional Administrator, United States Environmental Protection Agency, Region II; CAROL BROWNER, Administrator, United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge:

 This is an action (i) under the Clean Water Act based on the alleged failure of the Administrator of the Environmental Protection Agency (the "EPA") to perform a non-discretionary duty, and (ii) under the Administrative Procedure Act based on allegedly arbitrary and capricious action by the EPA. Both sides have moved for partial summary judgment on the issue of liability. Ultimately, plaintiffs want the EPA to promulgate water-quality based pollution limits for New York State's waters, and to disapprove of New York's policy for preventing the degradation of New York's clean waters. For the reasons stated below, the Court denies the parties' motions for summary judgment regarding the EPA's duty to promulgate pollution limits on the ground that there are triable issues of fact, and grants defendants' motion for summary judgment regarding New York's antidegradation policy on the grounds that the action to review the EPA's action under the Administrative Procedure Act is barred by the statute of limitations. The Opinion considers the causes of action separately.

 The Clean Water Act provides for citizen suits against the Administrator of the Environmental Protection Agency "where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2). Plaintiffs argue that New York had a duty to promulgate pollution limits, called Total Maximum Daily Loads ("TMDLs"), for various polluted waters and submit them to the EPA for review; that New York failed to fulfill its duty; and that the EPA thus had a duty to establish TMDLs for New York. The Court will first summarize the statutory scheme, then consider whether a constructive submission has occurred, concluding that triable issues of fact exist, and finally will consider whether the action regarding TMDLs is time-barred.

 A. Summary of the Statutory Scheme

 The Clean Water Act places "primary reliance for developing water quality standards on the states." Scott v. City of Hammond, 741 F.2d 992, 994 (7th Cir. 1984). Water pollution is controlled according to two approaches: the effluent-limitation approach and the water-quality-based approach. The effluent limitation approach focuses on regulating, through the issuance of permits and required technology-based abatement methods, the amount of pollutants discharged by a pollution source. The water-quality-based approach focuses on establishing a quality standard for a body of water, and then regulating the various sources of pollution as needed to meet that standard.

 In order to facilitate the reduction of water pollution, states are directed to develop water quality standards, which include both a pollution standard and a designation of the uses of a waterway. See 33 U.S.C. § 1313(a). "Timely adoption by states of water quality standards is enforced by withholding of grant funds." Scott, 741 F.2d at 995 n.7 (citing 33 U.S.C. § 1313a). It may be that the effluent-limitation approach will meet the water quality standard, in that technology-based reduction of the discharge of pollutants into the particular body of water will ensure that the level of pollution in the water will be lower than the established standard. However, if the reductions in effluence is not enough to reach the established water quality standard, the water-quality-based approach must be used. States are required to identify those waters which, taking into account technology-based reductions of pollutant discharge, will fail to meet the water quality standard established for those waters. See 33 U.S.C. § 1313(d)(1)(A)-(B). The states must then prioritize those waters that are identified as failing to meet the standards, and develop water-quality-based controls in order to meet the standard. A water-quality-based control is designed to determine the maximum amount of particular pollutants the water can absorb and still meet the standard, and then to apportion that maximum amount among the various sources of pollution in order to control the pollution.

 The water-quality-based approach established by Congress forces the states to study their water bodies, set quality standards, prioritize their water-quality improvement needs, and establish Total Maximum Daily Loads ("TMDLs") for pollutants. The benefit of this approach is that it facilitates the state's ability to meet its water-quality standards by controlling those sources of pollution that are easiest to control. The congressional scheme is not met merely by establishing effluence limits for specific sources, because Congress mandated a comprehensive approach to each body of water's quality standard. Without an understanding of the Total Maximum Daily Load, and the various sources which lower a body of water's quality, there is little chance that the pollution is most efficiently controlled. With the water-quality-based approach, the burden of pollution control can be minimized while maximizing the benefit to the overall quality of the body of water.

 The EPA provides oversight over this Congressional scheme, and is required to perform a state's duties if the state fails to do so or if the state's attempts to perform its duties are inadequate. "The EPA reviews a water quality standard promulgated by a State to ensure that it 'protect[s] the public health or welfare, enhance[s] the quality of water and serve[s] the purposes of [the] Act.'" Scott, 741 F.2d at 994-95 (quoting 33 U.S.C. § 1313(c)(2)) (alteration in original). The EPA likewise reviews the state's lists of water-quality limited segments, the state's priority ranking of segments, and the state's Total Maximum Daily Load determinations. The lists and loads are to be submitted to the Administrator "from time to time", with the first submission of water-quality limited segments list and Total Maximum Daily Loads for pollutants due on June 26, 1979. See 33 U.S.C. § 1313(d)(2) ("the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 304(a)(2)(D) [ 33 U.S.C. § 1314(a)(2)(D)]"); 43 Fed. Reg. 60662 (Dec. 28, 1978) (identifying pollutants under section 304(a)(2)(D)); see also Scott, 741 F.2d at 996 n.10 (deadline of June 26, 1979); Alaska Ctr. for the Env't ("ACE") v. Reilly, 762 F. Supp. 1422, 1424 (W.D. Wash. 1991) (same). But see Environmental Defense Fund, Inc. v. Costle, 211 U.S. App. D.C. 313, 657 F.2d 275, 295 (D.C. Cir. 1981) (states' duty to submit TMDL calculations arose June 28, 1979). Within thirty days of submission, "the Administrator shall either approve or disapprove such identification and load." 33 U.S.C. § 1313(d)(2). If the Administrator disapproves, "he shall not later than thirty days after the date of such disapproval identify such waters in such state and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters." Id. In sum, states were to identify water-quality-limited segments, prioritize them, and establish TMDLs by June 26, 1979. If submitted timely, EPA would have been directed to approve or disapprove submissions by July 26, 1979, and establish lists and TMDLs for disapproved submissions by August 25, 1979.

 B. Constructive Submission of no TMDLs

 Courts have held that a failure by a state to submit TMDLs to the EPA for review amounts to a "constructive submission" of no TMDLs, and the EPA has a non-discretionary duty to approve or disapprove this constructive submission, and upon disapproval, establish TMDLs for the state. See Scott, 741 F.2d at 996-98; Sierra Club v. Browner, 843 F. Supp. 1304, 1312 (D. Minn. 1993); ACE, 762 F. Supp. at 1429; cf. Environmental Defense Fund, 657 F.2d at 295 (denying summary judgment motion filed before deadline of June 26, 1979 as premature, but admonishing the "EPA to approve or disapprove such identification, prioritization, and load limits within the requisite statutory framework and time limits").

 1. The Standard for Determining Whether a Constructive Submission Has Occurred

 Defendants argue that a finding of constructive submission, and a resultant triggering of the EPA's duty, requires a subjective decision on the part of the state not to submit TMDLs. Although the Court recognizes that phrases in the various cases support this interpretation, the Court is persuaded that the statutory scheme intends prompt establishment of ...


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