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May 2, 2000


The opinion of the court was delivered by: Leisure, District Judge:


By Opinion and Order dated December 11, 1995, the Court ruled inter alia, that (i) New York State's alleged failure to submit TMDLs could trigger nondiscretionary duties of EPA to intervene, and (ii) genuine issues of material fact exist as to whether certain of New York State's submissions to EPA constitute TMDLs, and, even if they do, whether EPA nonetheless must intervene. See Natural Resources Defense Council. Inc. v. Fox, 909 F. Supp. 153, 156-158 (S.D.N.Y. 1995) [hereinafter, "NRDC"].

By Opinion and Order dated November 12, 1998, the Court granted partial summary judgment to defendants, dismissing all but one of plaintiffs' Clean Water Act claims, but denying summary judgment on plaintiffs' claims under the Administrative Procedure Act. See Natural Resources Defense Council. Inc. v. Fox, 30 F. Supp.2d 369 (S.D.N.Y. 1998) [hereinafter, "NRDC II"]. Subsequently, the parties agreed to submit these remaining claims to the Court for final judgment. The parties' final briefs were fully submitted on April 9, 1999.


The Court presumes familiarity with the discussion of the Clean Water Act's statutory scheme in its previous decisions in this action. See NRDC II, 30 F. Supp.2d. at 373-74; NRDC, 909 F. Supp. at 156-57. Accordingly, only those elements of the Clean Water Act pertinent to the motions presently before the Court are set forth here.

The instant case involves Section 303(d) of the Clean Water Act, which regulates waterbodies failing to meet water quality standards even upon application of so-called technological pollution controls. See 33 U.S.C. § 1313(d)(1)(A). States are required to create a prioritized list of such waterbodies, and, upon EPA's approval of the priority list, to establish TMDLs for each waterbody concerning pollutants specified by EPA. See 33 U.S.C. § 1313(d)(1)(A) & (C).

The Act prescribes the basic elements of a TMDL:

Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

Id. § 1313(d)(1)(C). EPA regulations further provide that a TMDL shall consist of the sum of: (i) the loading allotments for existing and future point sources of pollution*fn1 (known as "wasteload allocations"), and (ii) the loading allotments for existing and future nonpoint sources of pollution and natural background sources of pollution (known as "load allocations"). See 40 C.F.R. §§ 130.2(e)-(i).

The Act provides that states "shall submit" the prioritized lists of waterbodies and accompanying TMDLs "from time to time, with the first such submission not later than one hundred and eighty days after" EPA identifies relevant pollutants. See 33 U.S.C. § 1313 (d)(2). The parties do not dispute that the states' initial TMDLs and lists of waterbodies were due on June 26, 1979. See NRDC, 909 F. Supp. at 157.

Upon receipt of lists and/or TMDLs, EPA "shall either approve or disapprove [them] . . . not later than 30 days after the date of submission." Id. § 1313(d)(2). Should EPA disapprove either a list of waterbodies or a TMDL,

[it] 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 [it] determines necessary to implement the water quality standards applicable to such waters . . .


Principally at issue in the instant case is New York State's alleged failure to submit TMDLs to EPA for review. The Clean Water Act does not expressly address what duty, if any, EPA bears under such circumstances. See id. § 1313(d). This Court and others have read into the Act a requirement that EPA treat such state inaction as a so-called "constructive submission" of a deficient TMDL, triggering EPA's explicit mandatory duties under the Act to disapprove the "submission," id. § 1313(d)(2), and to establish TMDLs for the state, id. See NRDC, 909 F. Supp. at 157 (explaining doctrine and listing cases).

In NRDC II, the Court identified the issues to be decided in the final stage of this action, and in April 1999 the parties submitted the record upon which the Court will adjudicate plaintiffs' remaining claims. The administrative record ("AR"), dated January 8, 1998, consists of the evidence relied upon by EPA in its April 2, 1997, actions upon proposed TMDLs submitted by New York State, and provides the basis for the Court's review of plaintiffs' Claims Nine, Ten, and Eleven. The joint appendix ("JA") is a compendium of documents compiled jointly by the parties to assist the Court in its adjudication of Claims Six, Seven, Twelve, and Thirteen.

Of the thirteen claims enumerated in plaintiffs' Fourth Amended Complaint, only seven remain to be decided by the Court.*fn2 What had its origin as a Clean Water Act case is now primarily a suit under the Administrative Procedure Act. But while these APA claims are legally and analytically distinct from the original CWA claims, the underlying facts and plaintiffs' concerns remain the same. The Court briefly outlines these remaining claims.

Claims Six and Seven respectively seek judicial review under the APA of EPA' s alleged failure "to formally disapprove New York State's TMDL submissions due from time to time," and its alleged failure "to formally establish and promulgate TMDLs applicable to WQLSs in New York State." Fourth Am. Compl. at ¶¶ 54-55.

Claim Nine seeks APA review of EPA's alleged failure "to disapprove facially inadequate TMDLs for eight New York City reservoirs submitted by New York State to EPA on January 31, 1997." id. at ¶ 57.

Claims Ten and Eleven allege, respectively, that EPA breached a mandatory duty under the Clean Water Act, and should be compelled to act pursuant to the APA, for its failure to "approve or disapprove purported TMDLs for 10 New York City reservoirs submitted by New York State to EPA on January 31, 1997." Id. at ¶¶ 58-59.

Claims Twelve and Thirteen allege, respectively, that EPA breached its mandatory duties under the Clean Water Act, and should be compelled to act pursuant to the APA, for failing since 1979 "to oversee and effectuate the § 303(d) program in New York State as set forth in paragraph[s] 28-37e of this [Fourth] Amended Complaint." Id. at ¶¶ 60-61.


I. Standard of Decision

Pursuant to Fed. R. Civ. P. 52(a), the parties have filed cross-motions for final judgment on the pleadings now before the Court. Rule 52(a) permits the Court, with the consent of the parties, to decide a case without a formal trial "based on the record compiled in summary judgment proceedings." Acuff-Rose Music. Inc. v. Jostens. Inc., 155 F.3d 140, 142 (2d Cir. 1998).

In NRDC II, the Court responded to plaintiffs' repeated suggestion that they were entitled to "trial" of their claims, noting that "a full trial may be inappropriate in the instant case," given the Supreme Court's directive that "`the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.'" NRDC II, 30 F. Supp.2d at 384 (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam)). The Court invited the parties to discuss whether plaintiffs' claims might be "the sort that can be decided based on final briefing by the parties incorporating references to relevant portions of the existing administrative record and, where appropriate, to supplementary affidavits or deposition excerpts from agency officials." Id. at 385.

Following discussions among the parties and a pre-trial conference before the Court, on December 30, 1998, the Court approved the parties' joint stipulation and scheduling order, memorializing the parties' agreement to submit these claims to the Court for final judgment, and establishing a briefing schedule pursuant to Fed. R. Civ. P. 16(b).

Although the Court has twice denied the parties' motions for summary judgment on the remaining claims in this suit, the Court applies a different legal standard to the cross-motions now before it. In considering the parties' earlier motions for summary judgment, the Court was bound to make all reasonable inferences in favor of the moving party. See Anderson v. Liberty Lobby, Inc.,, 477 U.S. 242, 255 (1986); see also Holt v. KMI-Continental, Inc.,, 95 F.3d 123, 128 (2d Cir. 1996). In deciding the parties' cross-motions for final judgment, however, neither side enjoys such an advantage.

II. Rights and Remedies upon Judicial Review of Agency Action

The Court makes a preliminary observation regarding the nature of remedies available to plaintiffs in a citizen suit for judicial review of administrative agency action. While a discussion of remedies may seem premature at this stage, prior to adjudication of plaintiffs' claims, the Court feels it is necessary to correct some misconceptions held by plaintiffs, and to establish a framework for addressing the merits of their claims.

First, plaintiffs make frequent reference in their pleadings to the long history of failure by EPA and New York State to perform their duties under the Clean Water Act. Although evidence of this sort may be relevant to the reliability of these entities' promises of future compliance, plaintiffs are wrong to imply that recent efforts by EPA at compliance are per se insufficient to discharge EPA's statutory duties because of the agency's past failings. As the Court's sole power in this context is to require EPA to conform its present conduct to the law, EPA's past noncompliance is irrelevant to the question of agency's present compliance, and to whether the Court will grant the narrow relief prescribed by the CWA and the APA. Plaintiffs did not, and could not, acquire rights by virtue of EPA's past failings, and the Court cannot, accordingly, provide any relief that goes beyond ensuring EPA's present compliance with statutory mandates.

Furthermore, plaintiffs suggest that "issues of relief can be addressed separately from the issue of liability." Pls.' Br. at 38-39; see also Pls.' Repl. Br. at 34 ("[S]hould this Court find in Plaintiffs' favor on liability, the parties should be directed to submit proposed final orders and schedules to this Court within 30 days, after consultation with one another and good faith efforts to come up with a mutually agreeable order and timetable.") Because liability is a concept foreign to judicial review of agency action, see supra, plaintiffs are clearly misguided in proposing that the Court make a generalized finding of "liability" and direct the parties to agree upon an appropriate remedy. If the Court finds that EPA failed to comply with either the CWA or the APA, the remedy is implicit in the breach: the Court must compel EPA's compliance with its statutory mandate.

With these considerations as a backdrop, the Court proceeds to consider the merits of plaintiffs' seven remaining claims in this action.

III. Failure to Deem New York State's Alleged Inaction a "Constructive Submission" of Deficient TMDLs and to Promulgate Appropriate TMDLs

In Claims Six and Seven of their complaint, plaintiffs seek review under the Administrative Procedure Act, 5 U.S.C. § 706, of EPA's alleged failure to deem New York State's slow progress in promulgating TMDLs a "constructive submission" of deficient TMDLs, and its failure, in turn, to reject this deficient submission and promulgate its own TMDLs for the State.

Adopting the doctrine introduced by the Seventh Circuit in Scott v. City of Hammond, Ind.,, 741 F.2d 992, 994 (7th Cir. 1984) [hereinafter, "Scott"], the Court in NRDC held that New York State's failure to submit proposed TMDLs to EPA in a timely manner could constitute a "constructive submission" of inadequate TMDLs, which in turn might trigger EPA's duty to intervene under the Clean Water Act.

The Court must now determine whether EPA's failure to declare a "constructive submission" by New York State, and ultimately to promulgate TMDLs in its stead, requires the Court to compel agency action under the Administrative Procedure Act. In NRDC II, the Court held that Claims Six and Seven properly state a cause of action under the APA, see NRDC II, 30 F. Supp.2d at 379, and denied defendants' motion for summary judgment on these claims. The Court observed, however, that recent progress made by New York State and EPA in developing TMDLs for the State was "certainly probative as to whether New York State has taken action sufficient to prevent EPA from being considered in violation of § 706." Id. The Court continued, "Assuming EPA's duty to intervene has been triggered, the nature and extent of that duty must be assessed in light of continuing developments, including progress in state efforts to submit TMDLs. It may be the case, for example, that sufficient state progress after a period of delinquency could reduce the extent of EPA intervention required or even render the need for intervention altogether moot." Id. The Court must now decide whether EPA's omission to deem New York State's delay in promulgating TMDLs a "constructive submission" is arbitrary, capricious, or otherwise not in accordance with law, in contravention of 5 U.S.C. § 706(2)(A). See Fourth Am. Compl. at ¶ 54. The Court must also decide whether EPA unlawfully withheld or unreasonably delayed agency action, in contravention of 5 U.S.C. § 706(1). See id.

A. Agency Action Arbitrary, Capricious or Otherwise Not in Accordance with Law

"Section 706(2)(A) requires a finding that the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."' Citizens to Preserve Overton Park. Inc. v. Volpe, 401 U.S. 402, 416 (1971) (quoting 5 U.S.C. § 706(2)(A)). To make this finding, a court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. Moreover, "[a]lthough this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. An agency action can be set aside "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,, 463 U.S. 29, 43 (1983); see also Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89-90 (2d Cir. 2000); Henley v. FDA,, 77 F.3d 616, 620 (2d Cir. 1996); City of New York v. Shalala,, 34 F.3d 1161, 1167 (2d Cir. 1994).

"`The reviewing court must take into account contradictory evidence in the record, but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' When an agency makes a decision in the face of disputed technical facts, `[a] court must be reluctant to reverse results supported by . . . a weight of considered and carefully articulated expert opinion.'" Cellular Phone Taskforce, 205 F.3d at 89 (internal citations omitted). Plaintiffs bear the burden of overcoming the presumption of validity of EPA's actions. See, e.g., Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981).

The Court made clear in NRDC II that New York State's failure to submit proposed TMDLs to EPA for approval would, after an unspecified period of time, trigger EPA's duty to declare a "constructive submission" of inadequate TMDLs by the State, and trigger EPA's further duty to approve or disapprove this "constructive submission" within 30 days. See NRDC II, 30 F. Supp.2d at 376-78; see also 33 U.S.C. § 1313(d)(2).

Defendants contend that because 5 U.S.C. § 704 allows review of "final agency action" only, EPA's alleged failure to act is unreviewable under the APA. Defendants make the syllogistic argument that the failure to perform an action is never final because there is always a possibility that it will be performed. See Defs.' Br. at 27. Defendants' argument has a surface appeal that disappears on further analysis of the language of the APA and judicial precedent. The APA itself includes "failure to act" in its definition of "agency action." 5 U.S.C. § 551(13). Moreover, the courts have held that agency inaction does, after some period of time, amount to final agency action. See, e.g., Sierra Club v. Thomas, 828 F.2d at 793 ("[A]gency inaction may represent effectively final agency action that the agency has not frankly acknowledged"); Public Citizen Health Research Group v. FDA, 740 F.2d 21, 32 (D.C. Cir. 1984) ("At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review.") Thus, defendants cannot avoid judicial review with their "final action" defense.

On the merits of Claim Six, plaintiffs argue that, despite recent progress by EPA and the State in establishing TMDLs for New York, the State's failure to promulgate and submit TMDLs for EPA approval over the past two decades has undoubtedly triggered EPA's so-called "deeming duty," i.e., the duty to declare a "constructive submission" of no TMDLs. Defendants maintain that EPA's "deeming duty" has not been triggered, as New York State has made steady progress in developing its TMDL program over the past two decades. Defendants argue that, under the constructive submission doctrine, EPA's "deeming duty" arises only in the face of complete nonfeasance by the State; i.e., in order to declare a constructive submission of inadequate TMDLs, EPA must conclude that the State is ignoring its TMDL obligation entirely. Defendants claim that the administrative record amply supports their conclusion that New York is making progress in formulating TMDLs, and that an agency intervention that amounts to a vote of no confidence is inappropriate and potentially counterproductive. The Court agrees.

Upon review of the administrative record and joint appendix of documents submitted by the parties, the Court is fully satisfied that EPA's decision not to declare a "constructive submission" of no TMDLs by New York State is supported by the record, and is clearly not arbitrary, capricious, or contrary to law.

EPA Administrator Carol M. Browner, a named defendant in this suit, has frankly acknowledged what some scholarly observers had previously suggested:*fn4 that the TMDL program was consciously neglected by EPA until recent years, while resources were dedicated to other components of EPA's water quality control efforts under the CWA. See "Testimony of Carol Browner," Feb. 23, 2000, 2000 WL 11068367 (before the Senate Committee on Agriculture) [hereinafter, "Browner Testimony"].

The TMDL program was designed to provide a safety net, catching water bodies that were not protected or restored by the implementation of the range of general, broadly applicable, pollution control programs authorized in the Clean Water Act.
Until the early 1990's, however, EPA and States gave top priority to implementing these general clean water programs and gave lower priority to the more focused restoration authorities of the TMDL program. As a result, relatively few TMDLs were developed and many State lists ...

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