United States District Court, W.D. Washington, at Seattle
SIERRA CLUB; and CENTER FOR ENVIRONMENTAL LAW AND POLICY, Plaintiffs, and THE SPOKANE TRIBE OF INDIANS, Plaintiff-Intervenor,
DENNIS MCLERRAN; GINA MCCARTHY; and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants, and SPOKANE COUNTY; KAISER ALUMINUM OF WASHINGTON LLC; and STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Defendant-Intervenors.
MEMORANDUM ORDER REMANDING MATTER FOR FURTHER CONSIDERATION
BARBARA J. ROTHSTEIN, District Judge.
This matter is before the Court on cross motions for summary judgment by Plaintiffs, Plaintiff-Intervenor, Defendants, and Defendant Intervenors. Plaintiffs Sierra Club and Center for Environmental Law and Policy (hereinafter "Plaintiffs") claim that Defendant EPA failed to perform a nondiscretionary duty under the Clean Water Act ("CWA"). Plaintiffs raise claims under the citizen-suit provisions of the CWA, 33 U.S.C. § 1365(a)(2), and the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. Plaintiff-Intervenor Spokane Tribe of Indians ("Spokane Tribe") incorporates Sierra Club's claims and asserts additional claims under the CWA, APA, and federal trust responsibility. Having reviewed the parties' briefs together with all relevant materials, the Court grants partial summary judgment for Defendant EPA and Defendant-Intervenors (collectively, "Defendants") and grants partial summary judgment for Plaintiffs and the Spokane Tribe. The Court's reasoning follows:
A. The CWA Statutory Framework
Congress passed the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. In order to achieve that objective, Congress declared as a "national goal" that the "discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 101(a)(1).
The CWA's regulatory program focuses on two potential sources of pollution: "point" sources and "nonpoint" sources. A "point" source is any "discernible, confined and discrete conveyance" from which pollutants are or may be discharged. See id. § 1362(14). A "nonpoint" source is any non-discrete source, such as runoff from stormwater or irrigation agriculture. Id. The CWA regulates point source pollution through the National Pollution Discharge Elimination System ("NPDES") permit process. NPDES permits limit the discharge of pollutants through quantitative limits on the amount of pollutants released from each point source. See id. § 1342.
As part of its regulatory program, Section 303(d) of the CWA imposes duties on the states and the EPA. States are required, subject to federal oversight, to adopt water quality standards for each waterbody or waterbody segment within the state's boundaries. 33 U.S.C. § 1313. If a waterbody does not meet these standards or is not expected to meet them, the state must then designate that body as a "water quality limited segment." Id. § 1313(d)(1)(A); see 40 C.F.R. § 130.2. The list of "water quality limited segments" is known as the "303(d) list." After creating the 303(d) list, states must prioritize the water quality segments based on the severity of their pollution and their beneficial uses. See 33 U.S.C. § 1313(d)(1)(A). States are required to develop a "total maximum daily loads" (TMDL) for each pollutant impairing each water segment on the 303(d) list in accordance with these priorities. 40 CFR § 130.2 (f). A TMDL establishes the maximum amount of pollutants a water quality limited segment can receive daily without violating the state's water quality standards. TMDLs are supposed to be developed in accordance with their priority ranking on the 303(d) list. See 33 U.S.C. § 1313(d)(1)(C).
States must submit the ranked list of water quality limited segments and TMDLs to the EPA "from time to time." Id. § 1313(d)(2). The first such submission was due on June 26, 1979, just 180 days after the CWA was enacted. Once a submission is made, certain mandatory EPA duties are triggered. First, within 30 days of submission, the EPA must approve or disapprove of the water quality limited segments and the corresponding TMDLs. Id. If the EPA approves a submission, the submission is incorporated by the state into its continuing planning process and NPDES permitting. Id. at §303 (e) (3). If the EPA disapproves, the EPA must, within 30 days of the disapproval, make its own identification of appropriate water quality limited segments or establish its own TMDLs. Id. The CWA is silent as to the nature of the EPA's obligations if a state fails to make any submissions or fails to make a particular submission.
B. History of Spokane River TMDL for PCBs
In the State of Washington, the 303(d) list and TMDLs are prepared by Intervenor Washington State Department of Ecology (hereinafter "Ecology"). This case concerns the regulation of polychlorinated biphenyls (PCBs) in the Spokane River. It is undisputed that PCBs are industrial chemicals that are "persistent, bioaccumulative, and toxic." AR 14A at 487. The Spokane River has the worst PCB contamination in the state and has been subject to a Spokane County and Washington Department of Health fish consumption advisory since 1994 and 2003, respectively. AR 15 at 97; AF.Supp. 5, 7. The 303(d) list Ecology submitted in 1996 identified five segments of the Spokane River that exceeded water quality standards for PCBs. AR 2710. The most current 303(d) lists, for 2008 and 2010, identify fifteen segments of the Spokane River that exceed water quality standards for PCBs. AR 80. Ecology had also identified segments that exceed water quality standards for other pollutants in the Spokane River, and has developed TMDLs for other pollutants in the Spokane River and tributaries. AR 222-23. Of particular note was a recent group of nine TMDLs for dissolved oxygen in the Spokane River. AR 503. Ecology prepared this group of nine TMDLs over the course of 12 years; EPA approved them in 2010. AR 224.
No TMDLs for PCB have been submitted to EPA to date. Ecology conducted a TMDL assessment for PCBs in the Spokane River during 2003 and 2004. AR 1331. In 2006, Ecology produced a document entitled "Spokane River PCBs Total Maximum Daily Load [:] Water Quality Improvement Plan." AR 1319. The document was labeled "Draft - 6-19-06 - Do not cite or quote." Id. In the document, Ecology cited the statutory requirement that "[w]aters placed on the 303(d) list require preparation of [TMDLs]." AR 1333. Recognizing that fifteen segments of the Spokane River were on the 303(d) list for PCB pollutants, Ecology explained that "[a] TMLD has been determined to be the action needed to address these listings." Id.
There are several water quality criteria applicable to the Spokane River, including levels promulgated by the federal government, by Washington State, and by the Spokane Tribe. AR 1348. Ecology selected the most stringent water quality standard, the Spokane Tribe's, as the "the basis for calculating necessary load reductions and load allocations" for the draft. AR 1402. The parties agree that adopting the Spokane Tribe's water criterion would likely mean PCB load reductions of 95-99 percent. AR 1409. The draft document set load reductions for various dischargers on the Spokane River, with reductions of over 99 percent for some of the dischargers. AR 1409. In 2006, Ecology shared a draft TMDL with the EPA, the tribe, the state of Idaho, the dischargers, and interested members of the public.
The parties dispute whether this draft document contained sufficient information from which a final PCB TMDL could have been produced. Emails from Ecology staff members indicate that Ecology originally contemplated finalizing the TMDL at some point in 2007, and by mid-2008 was projecting a completion date of June 2009. AR 1062. Throughout this period, Ecology continued to collect data. Delays in the preparation of the dissolved oxygen TMDL caused some uncertainty as to when the PCB TMDL would be completed. AR 1071.
Eventually, Ecology issued a finalized version of the 2006 draft document, but with several significant revisions. The document title did not include any reference to Total Maximum Daily Load. Instead the document, released in April 2011, was retitled "Spokane River PCB Source Assessment 2003-2007." AR 63. Some introductory material explaining TMDLs was also excised. AR 63. Though the document still identified the target water quality level for PCBs and explained the overall loading reductions that would be needed to comply with that standard, it did not include permissible wasteload amounts for individual Spokane River dischargers.
The following month, Ecology released a second document, the "Spokane River Toxics Reduction Strategy, " which set forth the agency's "strategy or road map' for reducing and removing toxic contamination in water, water sediments and soil in the Spokane River watershed." AR 485. That document contained the following explanation of Ecology's change in course:
A draft Spokane River PCB TMDL was issued for public comment in June 2006 but was not completed because of the need for more data, including more accurate stormwater data, updated fish tissue sampling results, and the addition of new Spokane Tribe water quality standards for PCBs based on updated fish consumption rates. The draft TMDL was revised with this updated information in 2009 and issued as the Spokane River Source Assessment Report in 2011.
Ecology is not currently planning to develop a PCB TMDL with wasteload allocations, but this is still a potential tool for the future. Setting wasteload allocations through a TMDL would set a target well below the background' PCB concentrations observed in remote bodies of water with no obvious source of contamination other than aerial deposition.
In part because it would establish an impossible near-term target, and based on its experience with the Spokane River Dissolved Oxygen TMDL, which took 12 years to complete, Ecology is opting to proceed directly to implementing measures to reduce all toxics to the Spokane River. Those measures are described in this strategy. Such a straight-to-implementation plan is a recent strategy being adopted by the EPA and Ecology to address the many bodies of water that are on the list of polluted waters [called the 303(d) list] through tools other than TMDLs. Ecology plans to develop a straight-to-implementation plan for Spokane River toxics in 2012.
AR. 503 (emphasis in original). After 2010, Ecology renewed the permits of several Spokane River dischargers, and issued a new permit to Spokane County. None of these permits reflected the load reductions anticipated by the draft TMDL. However, Ecology did condition permits on ...