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Sanitary Board of City of Charleston v. Pruitt

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

March 29, 2018

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

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Before the court is the (1) Motion for Summary Judgment, filed by plaintiff Sanitary Board of the City of Charleston, West Virginia (“Sanitary Board”) on September 28, 2017 [ECF No. 34]; and the (2) Cross-Motion for Summary Judgment, filed by defendants United States Environmental Protection Agency and Scott Pruitt, in his official capacity as Administrator (collectively, “EPA”) on November 13, 2017 [ECF No. 36]. For the reasons stated below, the Sanitary Board's Motion for Summary Judgment is DENIED and the EPA's Cross-Motion for Summary Judgment is GRANTED.

         I. Background

         This case began as a two-count citizen suit brought pursuant to the Clean Water Act (“CWA”). At the time, the Sanitary Board argued that the EPA's failure to timely review a site-specific water quality standard for copper discharge into the Kanawha River (“Copper Standard”) violated the agency's obligations under the CWA. Compl. ¶ 1. As a result of the EPA's failure to review the submitted Copper Standard within the statutory deadlines, according to the Complaint, the Sanitary Board “is now subject to incorrect and overly stringent permit limits for the discharge of copper from its wastewater treatment plant, ” violations of which carry significant maximum statutory penalties. Compl. ¶ 2.

         On July 19, 2016, only a few months after the commencement of this civil action, the EPA rejected the proposed Copper Standard on the ground that it would be inconsistent with the CWA. See EPA Letter [ECF No. 15-1]. Thereafter, the Sanitary Board moved to supplement its complaint, advancing three additional counts necessitating relief on grounds that the EPA's rejection 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). By order of Judge Thomas E. Johnston on June 16, 2017, the court dismissed both counts comprising the original complaint (Counts I and II) for lack of jurisdiction. On January 29, 2017, the Clerk of court reassigned this case and its three remaining counts to the docket of the undersigned judge.

         The Sanitary Board is a public sewer utility that operates a wastewater collection system and treatment plant in the City of Charleston and the adjacent areas of Kanawha County, West Virginia. Sewage collected at the Sanitary Board's local plant is treated and discharged into the Kanawha River. A permit issued by the West Virginia Department of Environmental Protection (“WVDEP”) imposes pollutant-specific effluent limits on the sewage discharged into the Kanawha River, such as copper, by the Sanitary Board to ensure compliance with the CWA.

         The CWA requires the states to establish water quality standards for each body of water within their borders, and to review and modify if necessary its water quality standards every three years. See 33 U.S.C. § 1313(c)(2)(A). The current water quality standard adopted by the WVDEP for copper levels in the Kanawha River mirrors the EPA's 1986 national recommended water quality criteria for aquatic life. The EPA's national recommended water quality standards are uniform, and apply evenly to each waterbody regardless of its particular composition. Recognizing that the composition of specific waterbodies varies across the nation, the EPA developed a protocol that allows for the creation of a local site-specific “water effect ratio” (“WER”), which reflects how effectively a particular waterbody mitigates the aquatic toxicity of certain effluent discharges. A WER-adjusted effluent discharge limitation, therefore, represents a site-specific modification of the nationalized water quality standards to reflect site-specific conditions.

         West Virginia carries out the CWA's federally mandated requirement in two steps. First, the WVDEP develops water quality standards for each local waterbody and submits them for adoption by the legislature. Second, if adopted by the legislature, the Governor must still approve and sign the proposal. See W.Va. Code § 22-11-7b(a). Under the CWA, the EPA is charged with reviewing any new or revised water quality standard to determine if it is consistent with the CWA and applicable regulations. 33 U.S.C. §§ 1313(c)(2)(A), (c)(3). If, for example, the EPA determines that the WER-adjusted water quality standard is consistent with the CWA, then the WVDEP may incorporate the WER into a National Pollutant Discharge Elimination System (“NPDES”) permit, such as the one binding the Sanitary Board. See W.Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 162 (4th Cir. 2010) (stating that NPDES “permits set forth limitations on the type and quantity of pollutants that will ultimately be released into navigable waters”).

         Therefore, in West Virginia, if a particular waterbody's WER reflects an ability to mitigate the aquatic toxicity of a certain effluent discharge greater than contemplated by the standardized EPA recommendations, then a facility operating under a WER-adjusted permit could exceed the EPA's nationally recommended effluent discharge standard without penalty-provided, of course, that it does not exceed the modified standard. In this case, the Sanitary Board submitted a proposed WER to the EPA of 5.62 for copper, which - if approved and adopted into its permit with the WVDEP - would have allowed the Sanitary Board to discharge copper into the Kanawha River at a rate 5.62 times the default national copper standard.

         During the course of this litigation, but after the EPA rejected the Sanitary Board's WER proposal and the plaintiff amended its complaint, the WVDEP reissued the Sanitary Board a NPDES permit to operate and maintain an existing wastewater collection system on June 13, 2017 (the “2017 Permit”). See Defs.' Cross-Motion for Summ. J., Ex. A (“WVDEP Permit”) [ECF No. 36-1], Ex. B (“Permit Fact Sheet”) [ECF No. 36-2], Ex. C (“Permit Fact Sheet Addendum”) [ECF No. 36-3]. The WVDEP expressly acknowledged that the 2017 Permit did not take into consideration a WER for copper, given the absence of EPA approval. See Permit Fact Sheet Addendum at 1. Therefore, in order for the 2017 Permit to comply with the CWA, the WVDEP defaulted to the effluent discharge limitation for copper recommended by the EPA and adopted by West Virginia.

         Of particular importance, the WVDEP also concluded that an effluent discharge limitation on copper was not necessary throughout the operation of the 2017 Permit. In fact, the WVDEP did not subject the Sanitary Board to any limitation on the discharge of effluent copper because it concluded that there is no reasonable probability that the Sanitary Board would violate the default water quality standard for copper using a lognormal reasonable potential analysis. See Permit Fact Sheet at 6, 9, 20 (“Monitoring requirements only are established for copper.”); Pl.'s Reply Memo. in Supp. of Mot. for Summ. J & Resp. to Cross-Mot. for Summ. J. at 11 (admitting that “[the plaintiff's] copper limit has been removed”) [ECF No. 38].

         On November 13, 2017, the EPA cross-moved for summary judgment, arguing that the issuance of the 2017 Permit, which determined that “recent effluent data is indicative that there is no longer a [reasonable potential] for [a copper] parameter” and that the Sanitary Board has “no reasonable potential to violate [effluent limitations] protective of the [water quality criteria]” for copper, renders the complaint and its supplement moot. See Resp. to Pl.'s Mot. for Summ. J. & Memo. in Supp. of Cross-Mot. for Summ. J. at 8-9 (citing Permit Fact Sheet at 9). Specifically, the EPA asserts that the Sanitary Board can no longer demonstrate “a legally cognizable interest in the outcome” of this case. Id. at 10 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).

         The Sanitary Board filed a Response to the Cross-Motion for Summary Judgment on December 1, 2017, disputing the EPA's assertion that its claims are moot. According to the Sanitary Board, there are six reasons why its claims are not moot: (1) it paid for the Copper Standard; (2) it is the sole beneficiary of the rejected Copper Standard; (3) it is currently affected by existing the water quality criterion for copper; (4) it is required to monitor copper discharge and the permit continues to be subject to modification; (5) a finding that the claims at issue are moot would be inconsistent with precedent; and (6) its claimed injury is ongoing and capable of repetition.

         On December 12, 2017, the EPA filed a Reply in support of its Cross-Motion for Summary Judgment. [ECF No. 39]. Thus, ...


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