as required by 40 C.F.R. § 130.6, and therefore should not have been approved. Defendants counter that only new or revised water quality standards are subject to review by the EPA under the Clean Water Act, see 33 U.S.C. § 1313(c)(2), and therefore the review of the 1992 revisions of New York's water quality standards did not include, and need not have included, a review of New York's antidegradation policy. In fact, New York's antidegradation policy was submitted for review and approved in 1985.
The initial question, then, is whether the EPA reviewed the state's antidegradation policy in 1992. The statutory language clearly only requires review of new or revised standards by the EPA. See 33 U.S.C. § 1313(c)(2). Even if the statutory language were ambiguous, the Court would find that the EPA's interpretation of it to require only review of new or revised water quality standards to be reasonable, and therefore entitled to deference. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Furthermore, an agency's interpretation of its own regulations is entitled to greater deference. See Leslie Salt Co. v. United States, 896 F.2d 354, 357 (9th Cir. 1990), cert. denied, 498 U.S. 1126, 112 L. Ed. 2d 1194, 111 S. Ct. 1089 (1991); cf. United States v. Yuzary, 55 F.3d 47, 51 (2d Cir. 1995) ("Federal courts are bound by an agency's interpretation of its own legislative rule unless the interpretation is inconsistent with the legislative rule, violates the constitution or a federal statute, or is plainly erroneous."). The EPA's interpretation of its regulations requiring a review of officially adopted revisions of water quality standards, see 40 C.F.R. § 131.21, to only encompass a review of the revised parts of the state's system of water quality standards is eminently reasonable and entitled to deference by this Court. Therefore, the EPA's interpretation that there has been no review of New York's antidegradation policy since 1985 is adopted by this Court.
Next the Court must determine whether the approval of the 1992 revision was arbitrary and capricious because it did not contain an antidegradation policy. The EPA interprets 40 C.F.R. § 131.6, which states that an antidegradation policy "must be included in each State's water quality standards submitted to EPA for review," to require only initial water quality standards to meet this requirement, and once an antidegradation policy has been approved, submitted revisions to the water quality standards need not each contain an antidegradation policy. Again the Court finds this interpretation of the relevant regulations, see 40 C.F.R. § 131.1, 131.5-.6, to be reasonable and entitled to deference. Therefore, the Court finds that the approval of the 1992 revisions, despite their omission of any antidegradation policy, was not arbitrary and capricious and shall not be set aside.
Finally, the Court finds that a review of the EPA's 1985 approval of New York's antidegradation policy is barred by the statute of limitations. The Second Circuit has held that the six-year statute of limitations of 28 U.S.C. § 2401 applies to Administrative Procedure Act claims. See Blassingame v. Secretary of the Navy, 811 F.2d 65, 70 (2d Cir. 1987). Although there may be some Administrative Procedure Act claims that would fall outside this rule, see Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (agency decision exceeding constitutional or statutory authority not subject to six-year limitation), this is not one of them, see id. ("If the person wishes to bring a policy-based facial challenge to the government's decision, that . . . must be brought within six years."). Therefore, the Court grants defendants' summary judgment motion with respect to count five, the challenge to EPA's approval of the 1992 submission based on the asserted inadequacy of New York's antidegradation policy.
For the reasons stated above, the Court HEREBY DENIES plaintiffs' motion and defendants' motion for summary judgment on claims three and four of the complaint. The Court HEREBY GRANTS defendants' motion for summary judgment on claim five of the complaint. Without objection from either side, the Court also HEREBY DISMISSES claims one and two of the complaint as moot.
New York, New York
December 11, 1995
Peter K. Leisure