the state water quality standard complied with the Clean Water Act and regulations promulgated thereunder. See 40 C.F.R. § 131.21(c) ("A State water quality standard remains in effect, even though disapproved by EPA, until the State revises it or EPA promulgates a rule that supersedes the State water quality standard.")
However, evidence in the record demonstrates that Pennsylvania officials may actually have issued permits that have had a direct impact on the environment and that likely would not have been issued if Pennsylvania standards were acceptable to the EPA. On January 23, 1995, the Service notified the EPA that the DER issued permits for mine slurry impoundments, commonly known as "valley fills." (Ex. D-43.) In the letter, the Service states that the DER allowed a coal company to fill a tributary to Pine Run in Jefferson County, Pennsylvania, even though the DER's Regional Biologist concluded that the aquatic life
of the perennial stream would "undoubtedly be eliminated" if the permit were issued. Id. at 1-2. The Service observed that, "unfortunately, valley fills may become much more common" because "recent legislation enacted in Pennsylvania has in effect legalized the issuance of more permits for valley fills whether or not existing uses are protected." Id. at 2. The Service concluded that "we believe that specific language, such as that in 40 CFR 131.12(a)(1), is needed in order to protect existing uses and the level of water quality needed to maintain those uses in Pennsylvania." Id.
Defendants' assertion that Pennsylvania waters will not significantly degrade under the present standard is unpersuasive, even though the EPA has praised the Pennsylvania Special Protection Waters Program. The EPA has called the High Quality waters classification an "excellent vehicle to protect valuable waters in the Commonwealth." (Ex. D-15 at 4.) However, only one-quarter of the state's waters fall into this category and, as discussed supra, EPA's position is that some High Quality waters still fall short of the federal standard. The EPA has stated that the Exceptional Value waters category is "even broader than the Federal definition" under Tier 3. Id. at 4. However, only about three percent of state waters fall within classification, and the EPA has told the DER that it should adopt language stating that there should be no new discharges into these waters. The court concludes that, while the EPA has commended some aspects of Pennsylvania's program, it has informed the DER that its antidegradation policy fails to protect waters as required under federal law. There is the potential for the state's water quality to degrade under the present standard, and that state officials operating under the present standard have issued permits that have directly caused harmful environmental effects.
As to the fourth factor, Defendants have provided declarations and deposition testimony concerning the inconvenience and practical difficulty in preparing and promulgating a new or revised water quality standard for Pennsylvania as well as its need to prioritize in the face of limited resources.
The court considered this evidence as part of Proffitt's claims under the citizen-suit provision of the Act. The administrative record, however, does not speak to these issues. (See Defs.' Mem. Supp. Summ. J. at 28-30) (supporting its argument only with citations to evidence outside the administrative record).
Considering the four factors, the court finds that Defendants have failed to carry out § 1313(c)'s mandate for nineteen months and that such a delay is unreasonable in the context of the section's rigid calendar of deadlines. Further, the court finds that the consequences of the delay -- the potential harm to Pennsylvania's waters and the aquatic life living therein -- is significant. Finally, the administrative record does not support Defendants' claims of inconvenience, practical difficulty and need to prioritize.
For the above reasons, the court concludes that Defendants' delay is unreasonable and will grant Proffitt's motion and deny Defendants' motion on this ground.
B. Claim Under 5 U.S.C. § 706(2)(A)
Under the APA, a reviewing court must "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Proffitt alleges that Defendants acted "not in accordance with law" by failing to comply with their regulations requiring it to "promptly propose and promulgate" the changes specified by the Regional Administrator in its disapproval notice.
Where judicial review includes action taken pursuant to agency regulations, validly promulgated regulations have the force of law. Frisby v. United States Dep't of Hous. & Urban Dev., 755 F.2d 1052, 1055 (3d Cir. 1985). When an agency fails to act in compliance with its own regulations, such actions are "not in accordance with law." Id. at 1055-56 (citations and quotations omitted). A court must give substantial deference to an agency's construction of its regulations. Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150, 113 L. Ed. 2d 117, 111 S. Ct. 1171 (1991). The court should defer to the agency's interpretation as long as it is "reasonable" or "sensibly conforms to the purpose and wording of the regulations." Id. at 150-51 (quotations omitted).
The relevant federal regulation provides: " If the State does not adopt the changes specified by the Regional Administrator within 90 days after notification of the Regional Administrator's disapproval, the Administrator shall promptly propose and promulgate such standard." 40 C.F.R. § 131.22(a). This regulation and 33 U.S.C. § 1313(c) contemplate the same result, which is the prompt compliance with the Act by states whose water quality standard has been disapproved by the Regional Administrator. The administrative record provided to the court reveals that, nineteen months after this duty arose, Defendants have not even begun to propose and promulgate a water quality standard for Pennsylvania. For the reasons set forth in Part III of this Memorandum, Defendants' interpretation of the mandatory duty imposed by § 131.22(a) is unreasonable and does not conform to the purpose and wording of that section or the regulatory scheme as a whole.
Because Defendants have failed to comply with their regulations, their decision not to promulgate a new or revised water quality standard for Pennsylvania is "not in accordance with law" under 5 U.S.C. § 706(2)(A). Therefore, the court will grant Proffitt's motion and deny Defendants' motion on this ground.
C. Claim Under 5 U.S.C. § 706(2)(B)
The APA also requires a reviewing court to "set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(B). Plaintiff alleges that the EPA's failure to promptly prepare and publish a proposed water quality standard for Pennsylvania is contrary to the constitutional duty of the President to "take care that the Laws be faithfully executed . . . ." U.S. Const. art. II, § 3. Proffitt did not move for summary judgment on this ground, and Defendants did not submit affidavits that directly concern this issue. Neither party addressed whether the laws have been "faithfully executed" in this case. Because Defendants have not persuaded the court that they are entitled to relief, the court will deny Defendants' motion on this ground.
V. PROFFITT'S REQUEST THAT THE COURT ORDER EPA TO OBEY THE REQUIREMENTS OF 33 U.S.C. § 1313(c)(4)
Proffitt also has moved for summary judgment on Count VI of his Complaint, in which it asks the court to order the EPA to (1) promptly prepare and publish an antidegradation policy for Pennsylvania that is consistent with the minimum requirements of 40 C.F.R. § 131.12 and (2) to promulgate an antidegradation policy consistent with the minimum requirements of 40 C.F.R. § 131.12 within ninety days after publication, pursuant to 33 U.S.C. § 1313(c)(4).
The court interprets this count to set forth a prayer for relief rather than a separate theory of liability. To the extent that the relief has been granted in the Order accompanying this Memorandum, the court will grant Proffitt's summary judgment motion on this count and deny Defendants' motion. To the extent that the relief is not granted elsewhere in the Order, the court will deny Proffitt's motion and grant Defendants' motion.
For the above reasons, Proffitt is entitled to judgment as a matter of law on Counts I, III, IV. The court will grant Proffitt's Motion for Summary Judgment on Counts I, III, and IV, and deny Defendants' Motion for Summary Judgment on those counts. The court also will partly grant and partly deny each party's motions as to Count VI. The court will order Defendants, immediately and without further delay, to "prepare and publish proposed regulations setting forth a new or revised water quality standard for the navigable waters involved." The court also will schedule a status conference for thirty (30) days from the date of the accompanying Order, at which time Defendants will inform the court, in detail, of the precise steps taken to accomplish this nondiscretionary statutory duty.
An appropriate Order follows.
AND NOW, TO WIT, this day of April, 1996, upon consideration of Plaintiff's Motion for Summary Judgment, and Defendants' response thereto, IT IS ORDERED that said motion is GRANTED IN PART AND DENIED IN PART. Defendants shall, immediately prepare and publish proposed regulations setting forth a revised water quality standard for the navigable waters involved, pursuant to 33 U.S.C. § 1313(c)(4). Plaintiff may file a petition for attorneys' fees and costs within the time provided by the Rules of Civil Procedure.
Upon consideration of Defendants' Motion for Summary Judgment, and Plaintiff's response thereto, IT IS FURTHER ORDERED that said motion is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that judgment is entered in favor of Plaintiff and against Defendants.
IT IS FURTHER ORDERED that a status conference on Defendants' progress in complying with this Order will be held at 9:30 a.m. on Monday, May 13, 1996, in Courtroom 17-B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
LOUIS C. BECHTLE, J.