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Sanitary Board of City of Charleston v. Pruitt

United States District Court, S.D. West Virginia, Charleston Division

June 16, 2017

SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA, Plaintiff,
v.
SCOTT PRUITT, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Before the Court is the Motion to Dismiss of the United States Environmental Protection Agency and Scott Pruitt, Administrator (collectively, “EPA”).[1] (ECF No. 21.) For the reasons that follow, the motion is GRANTED.

         I. BACKGROUND

         This case began as a citizen suit brought pursuant to the Clean Water Act (“CWA”). Plaintiff Sanitary Board of the City of Charleston, West Virginia (“Sanitary Board”) challenged EPA's failure to determine whether West Virginia's site-specific water quality standard for effluent copper was consistent with the requirements of the CWA. The Sanitary Board further alleged that in circumstances that obligated the agency to approve the standard, EPA had refused to act. Litigation was scarcely underway when EPA issued its final decision disapproving the water quality standard. With the Court's leave, the Sanitary Board then filed a Supplemental Complaint challenging EPA's disapproval of the standard under the Administrative Procedure Act (“APA”). The Sanitary Board's original claims-those invoking the CWA's citizen suit provision-are the subject of the instant Motion to Dismiss.

         The CWA's purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To that end, the CWA requires states to establish water quality standards for each body of water within their borders. States do so by designating the intended uses for each of their waterways and creating water quality criteria to support such uses. § 1313(a)-(c). Water quality standards often operate to limit the introduction of pollutants into the nation's waterways and serve as a basis for imposing limits on discharges from wastewater facilities like the one operated by the Sanitary Board.

         The CWA also requires each state to review and modify its water quality standards as needed every three years and submit any revisions for approval by EPA. § 1313(c)(2)(A). In West Virginia, the West Virginia Department of Environmental Protection (“WVDEP”) develops water quality standards and submits them for adoption by the legislature and approval by the Governor. See W.Va. Code § 22-11-7b(a). EPA is then charged with reviewing any new or revised standard to determine if the standard is consistent with the CWA and applicable regulations. §§ 1313(c)(2)(A), (c)(3). The statute requires the EPA to act within 60 days if it approves the standard or within 90 days if the standard is disapproved. § 1313(c)(3).

         With that background, the Court turns to the facts alleged in the Complaint. The Sanitary Board is the public sewer utility for the City of Charleston, West Virginia. The Sanitary Board operates a wastewater treatment plant serving customers in Charleston and surrounding Kanawha County. Sewage treated by the Sanitary Board's wastewater treatment plant is discharged to the Kanawha River under the terms of a permit issued by the WVDEP. The permit imposes pollutant-specific effluent limits designed to ensure that discharges from the treatment plant do not cause pollutant levels in the Kanawha River to exceed the controlling water quality standard. (Compl. ¶ 20.)

         The WVDEP has established water quality criteria for copper levels in the Kanawha River to protect aquatic life. (Compl. ¶ 22 (citing W.Va. Code R. § 47-2, App. E, Tbl. 1, § 8.10).) These criteria mirror EPA's national recommended copper criteria. In certain circumstances, however, and because EPA acknowledges that its laboratory-derived criteria may be too restrictive given the conditions of specific waterways, EPA permits the WVDEP to develop site-specific water quality criteria to use in lieu of the national standard. The process allows for the development of a “water effect ratio” to calculate site-specific water quality criteria for copper at a particular location of a river. (Id. ¶ 24.)

         In 2012, after consultation with the WVDEP, the Sanitary Board began the process of developing a water effect ratio for copper at the location where discharges from its treatment plant enter the Kanawha River (the “Copper Standard”). (Compl. ¶ 25.) The WVDEP, in turn, consulted extensively with EPA during the process of revision. The Sanitary Board alleges that the WVDEP's communication with EPA during this period reveals that EPA had concluded, long before submission of the standard for formal agency review, that the forthcoming Copper Standard met the CWA's requirements. In a letter from EPA to WVDEP dated July 21, 2014, EPA stated:

The U.S. EPA is supportive of . . . the copper water effect ratio (WER) for the Sanitary Board for the City of Charleston (47CSR2 7.2.d.19.2). EPA has reviewed the information on how the WER was derived and finds that it is consistent with EPA current guidance in the March 2001 Streamlined Water-Effect Ratio Procedure for Discharges of Copper (EPA-822-R-01-005). Our only comment would be that the regulation needs to specify whether it is a dissolved or total recoverable WER.

(Compl. ¶ 31.) In response to EPA's suggestion, the WVDEP amended the Copper Standard to clarify that the standard applies to “total recoverable copper.” (Id. ¶ 32.)

         Ultimately, the WVDEP revised West Virginia's water quality standards to include the Sanitary Board's Copper Standard for the Kanawha River. Following a period of public comment, the standards were adopted by the West Virginia legislature and approved by the Governor in March 2015. The final water quality standards were submitted to EPA Region 3 for final review on or about June 25, 2015. (Id. ¶ 33.) Thus, the CWA required EPA to act within 60 or 90 days to approve or disapprove the standards-by approximately August 24 or September 23, 2015. (Id. ¶ 34.) However, on May 21, 2015, and despite indicating its general satisfaction with the Copper Standard on an earlier date, EPA notified the WVDEP that it would not approve the Sanitary Board's Copper Standard until the United States Fish and Wildlife Service (“FWS”) reviewed the results of a survey of freshwater mussel species near the wastewater treatment plant.[2](Id. ¶ 35.) By the time the Sanitary Board filed its Complaint on March 31, 2016, EPA had not acted to approve or disapprove the Copper Standard.

         The Sanitary Board's Complaint includes two counts, both brought under the CWA's citizen suit provision. 33 U.S.C. § 1365(g). The first alleges a violation of the nondiscretionary duty to act within the deadline prescribed by the CWA. (Compl. Count I.) The second claims a violation of EPA's ostensible “nondiscretionary duty to approve” the Copper Standard. (Id. Count II.) As litigation commenced, EPA continued to press the WVDEP to complete the mussel survey requested by the FWS. The WVDEP completed the survey on June 7, 2016. (Supp. Compl. ¶ 30.) On July 19, 2016, EPA sent a letter to the WVDEP disapproving the Sanitary Board's Copper Standard. The Sanitary Board obtained leave of Court to file a Supplemental Complaint, which it filed on November 17, 2016. The Supplemental Complaint adds claims under the APA that EPA's disapproval of the Copper Standard was arbitrary and capricious, (Count III), contrary to law and in excess of statutory authority, (Count IV), and without observance of the procedure required by law, (Count V).

         EPA moves to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The motion, having been fully ...


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