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RAYMOND PROFFITT FOUND. v. UNITED STATES EPA

April 16, 1996

THE RAYMOND PROFFITT FOUNDATION
v.
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and CAROL BROWNER, Administrator



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 APRIL 16, 1996

 Presently before the court are cross motions for summary judgment filed by the plaintiff, The Raymond Proffitt Foundation ("Proffitt"), and the defendants, the United States Environmental Protection Agency ("EPA") and Carol Browner, Administrator (jointly, "Defendants"). For the reasons stated below, the motions will be granted in part and denied in part.

 I. BACKGROUND

 This civil action arises out of Defendants' failure to "promptly prepare and publish" a water quality standard for Pennsylvania that complies with the Water Pollution Control Act (the "Clean Water Act" or the "Act"), 33 U.S.C. § 1251 et seq..

 A. The Governing Statutes and Regulations

 The Clean Water Act is a comprehensive water quality statute designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act also strives to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a)(2). Essential to these goals are the distinct roles for the federal and state governments. PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 723, 114 S. Ct. 1900, 1905, 128 L. Ed. 2d 716 (1994); Natural Resources Defense Council v. United States Environmental Protection Agency, 16 F.3d 1395, 1399 (4th Cir. 1993); see 33 U.S.C. § 1251(b). The EPA is charged with establishing and enforcing the states' "technology-based limitations on individual discharges into the country's navigable waters from point sources." PUD No. 1, 114 S. Ct. at 1905; see 33 U.S.C. §§ 1311, 1314. The Act also requires the states to institute a comprehensive water quality standard setting water quality goals for all intrastate waters. PUD No. 1, 114 S. Ct. at 1905; 33 U.S.C. §§ 1311(b)(1)(C), 1313. This standard is "'a supplementary basis . . . so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.'" PUD No. 1, 114 S. Ct. at 1905 (quoting Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n.2, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (1976)).

 In 1972, Congress amended the Act to require all states, if they had not done so already, to adopt a water quality standard that complies with the Act. 33 U.S.C. § 1313(a)(3)(A). A water quality standard defines the water quality goals of a particular body of water by setting forth the uses to be made of the water and the criteria necessary to protect those uses. 40 C.F.R. §§ 130.3, 131.2 (1995). This standard is a "critical component of the Act's regulatory scheme" because its guides state and federal authorities as to whether to grant or deny a particular permit to discharge pollutants into a body of water. See Natural Resources Defense Council, 16 F.3d at 1399.

 Once a state's water quality standard complies with the Act, it is required, at least once every three years, to hold public hearings to review the standard and decide whether to modify it or adopt a new standard. 33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(a). Each state must submit the results of this review and all supporting information to the EPA. 33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(c). This process is known as the Triennial Review.

 The third principal element, the antidegradation policy, is the focus of this case. EPA regulations divide the antidegradation policy into three tiers of water quality. See 40 C.F.R. § 131.12. Tier 1 sets forth the minimum standard, under which states must maintain and protect existing water uses and the level of water quality necessary to protect those uses. 40 C.F.R. § 131.12(a)(1). Tier 2 applies to waters whose quality exceeds Tier 1 levels and requires states to maintain and protect the water quality "necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," unless the state finds that lowering the water quality is "necessary to accommodate important economic or social development in the area." 40 C.F.R. § 131.12(a)(2). Tier 3 applies to high quality waters that constitute outstanding national resources and requires states to maintain and protect the water quality. 40 C.F.R. § 131.12(a)(3). At a minimum, every state must satisfy these conditions; however, a state may promulgate an antidegradation policy that is more stringent than required by the federal regulations. 40 C.F.R. § 131.4(a); PUD No. 1, 114 S. Ct. at 1906.

 Once a state has complied with the Act's initial water quality standard, the Act provides two ways in which the EPA enforces the Act and its regulations. First, the EPA may publish a revised water quality standard for a state when "the Administrator determines that a revised or new standard is necessary to meet the requirements" of the Act. 33 U.S.C. § 1313(c)(4)(B). Authority to make such a determination resides with the Administrator. 40 C.F.R. § 131.22(b). The state then must comply with the federally promulgated standard.

 Alternatively, a state may submit a new or revised standard to the EPA as part of a Triennial Review. See 33 U.S.C. § 1313(c)(2)(A). If the Regional Administrator *fn2" approves the revisions, he or she must notify the state of the approval within sixty days. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(a). If the Regional Administrator disapproves the revisions, he or she must notify the state of the disapproval within ninety days. *fn3" 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(b). If the state fails to adopt the changes specified by the Regional Administrator within ninety days of the notice of disapproval, "the Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved." 33 U.S.C. § 1313(c)(4); see also 40 C.F.R. § 131.22(a) (requiring the Administrator to "promptly propose and promulgate" the changes specified by the Regional Administrator in its disapproval notice). The state is required to comply with the Administrator's new federal regulations setting forth a new water quality standard.

 The material facts of this case are not in dispute. On September 2, 1971, Pennsylvania first adopted a water quality standard, including an antidegradation policy. (Defs.' Mem. Supp. Summ. J. at 8.) On August 10, 1973, the EPA approved the standard. Id. In 1979 and 1985, Pennsylvania completed Triennial Reviews of its water quality. Id. Between 1989 and 1994, the EPA continually notified Pennsylvania that its review was deficient in part because its antidegradation policy failed to comply with the federal standard. (Pl.'s Mem. Supp. Summ. J. at 3.) Pennsylvania's Department of Environmental Resources *fn4" submitted its 1992 Triennial Review on March 9, 1994. (Ex. D-3.) *fn5" On June 6, 1994, the EPA disapproved certain provisions of the standard, including the antidegradation policy. *fn6" (Ex. P-1.) The EPA found that Pennsylvania's policy failed to comply with federal regulations governing Tier 1, Tier 2, and Tier 3 waters. Id.

 As to Tier 1 waters, the EPA approved Pennsylvania's adoption of a definition of existing uses that mirrors the federal definition. Id. at 3. However, the EPA found that Pennsylvania's policy varied from the federal standard because it linked existing use protection to DER's rulemaking process. Id. The EPA reasoned that the Pennsylvania standard might not protect existing uses if DER determined that the waterbody attains the criteria for an existing use that is more protective for the waterbody than the designated use. Id. The EPA thus concluded that this state standard was not consistent with the federal regulation requiring Tier 1 water uses to be "maintained and protected." Id. at 3-4; see 40 C.F.R. § 131.12(a)(1). The EPA requested that Pennsylvania insert the "maintained and protected" language in its Tier 1 antidegradation policy. (Ex. P-1 at 3-4.)

 As to Tier 2 waters, Pennsylvania developed a Special Protection Program designating Tier 2 waters as High Quality. Id. at 4. The EPA found that this program "provides an excellent vehicle to protect valuable waters in the Commonwealth," mainly because it does not allow de minimis deposits to be exempted from the antidegradation process. Id. However, because Pennsylvania designates High Quality waters as those having "excellent quality waters and environmental or other features that require special water quality criteria," the EPA concluded that Pennsylvania's policy does not cover waters that would be protected under federal Tier 2 protection. Id. (emphasis added). The EPA noted that Pennsylvania denied High Quality protection to waters that had excellent quality but lacked other environmental or other features. Id. Concluding that Pennsylvania's program fails to "provide for special protection where data are absent, potentially denying protection to high quality waters because of resource limitations or lack of petitions," the EPA stated that the policy would meet the federal standard if the state dropped the "environmental or other feature" requirement in the High Quality definition or added a new, less exclusive category in the Special Protection Program. Id. at 4-5.

 As to Tier 3 waters, Pennsylvania's Special Protection Program created the Exceptional Value designation, which the EPA characterized as "broader" than the federal Tier 3 standard. Id. However, the EPA noted that these Exceptional Value waters are protected at their existing water quality as long as "no adverse measurable change" in existing quality would occur as a result of a point source permit. Id. The EPA concluded that this standard was inconsistent with an EPA policy forbidding all long-term new or expanded discharges in Tier 3 waters because Pennsylvania's policy "could allow potentially significant discharges and loading increases from point and nonpoint sources." Id. The EPA asked Pennsylvania to amend its regulations to create, in addition to the Exceptional Value category, a new level of Tier 3 protection for Outstanding Natural Resource Waters to which no new or expanded discharges would be allowed. Id. at 6.

 On September 2, 1994, the DER responded to the EPA's partial disapproval of the Triennial Review. (Ex. P-2.) As to Tier 1, the DER stated that it believed its regulations are not only "substantially equivalent" to the federal Tier 1 standard, but actually preferable to it, because the state process contains technical data and public participation requirements. Id. at 4. As to Tier 2, the DER said it was willing to reassess its position on defining High Quality waters, but that "the most effective and productive means to address the Tier 2 issue is to provide the opportunity for public review and discussion of the alternatives prior to proposing regulatory changes." Id. at 4-5. Regarding Tier 3, the DER stated that the EPA lacks the legal authority to compel it to create the Outstanding Natural Resource Waters category and threatened to "challenge any further EPA action on this issue in the federal courts." Id. at 6.

 On October 5, 1994, the EPA responded to the DER's letter. (Ex. P-3.) On Tier 1, the EPA affirmed its previous evaluation, but said it was willing to explore alternatives to rulemaking. Id. at 3. On Tier 2, the EPA agreed with the DER's plan to reassess its position on defining its High Quality program and encouraged Pennsylvania to act as quickly as possible. Id. On Tier 3, the EPA acknowledged that its policy forbidding "no new or expanded discharges" is not in the Act or EPA regulations, but was based on EPA guidance. Id. at 4. Nevertheless, the EPA said it would follow the policy because it "is good public policy and good environmental sense that we protect waters that qualify as outstanding national resources to the fullest extent possible." Id.

 On December 10, 1994, the DER scheduled two public hearings to discuss Pennsylvania's surface water antidegradation program in general, and Tier 2 specifically. 24 Pa. Bull. 6184 (Dec. 10, 1994); Ex. D-37. The hearings were held on January 11, 1995, and were attended by state and federal regulators, industry representatives, and environmental groups. (Ex. D-39.)

 On March 16, 1995, the DER informed the EPA that it had scheduled a public hearing for April 20, 1995, to receive formal comments on the current antidegradation program and recommendations for changes. (Ex. D-46.) After this hearing, the DER stated, it planned to

 
utilize public and internal input to develop a report on program issues and outline a range of options for change. At that point, we plan to initiate focused, facilitated discussions with representatives of the regulated community, the environmental community, and general public interest groups. These structured discussions will be facilitated by a professional environmental mediator and will be designed to generate consensus on program modifications that will be incorporated into water quality standards rulemaking.

 Id. at 1. This consensus-building approach to revising Pennsylvania's water quality standard is called a regulatory-negotiation, or "reg-neg," process.

 On March 23, 1995, the EPA issued its Final Water Quality Guidance for the Great Lakes System. 60 Fed. Reg. 15,366 (to be codified in various parts of 40 C.F.R.); Ex. D-48. These regulations include minimum water quality criteria, antidegradation policies and implementation procedures for the Great Lakes Region, which includes some waters in Pennsylvania. Id. Pennsylvania must adopt equivalent language applicable to the few state rivers that drain into the Great Lakes by March 23, 1997. Id.

 On May 18, 1995, the DER told the EPA that its reg-neg process is designed to review all policy and regulatory aspects of Pennsylvania's antidegradation program, including issues that were not directly related to the EPA's disapproval of Pennsylvania's program. (Ex. D-58.) On June 1, 1995, the DER stated that it would hold its first meeting in the twelve-week process on June 27, 1995, and that the negotiations would conclude near the end of September 1995. (Ex. P-10 at 1.) Within a month after the hearings concluded, the participants would draft the proposed regulatory changes. Id. The DER then described the statutory state regulatory review process that would be necessary to enact the proposals into law:

 
Under current law, the [DER]'s proposed regulations are reviewed and approved by the Environmental Quality Board as proposed rulemaking, published in the PA Bulletin for public comment, revised if necessary, and presented to the Environmental Quality Board for adoption as final rulemaking. The proposed and final regulations are also subject to review by the state Independent Regulatory Review Commission, standing environmental committees in the PA General Assembly, the Governor's Office of General Counsel and the Attorney General. The revised regulations become effective upon publication as final rulemaking in the PA Bulletin. The average time needed to complete this process is eighteen months. We are optimistic that the "reg-neg" efforts will allow this regulatory review process to flow smoothly for these regulatory revisions. We are committed to expedite the process where we can.

 (Ex. D-59 at 1-2.) The DER retained the services of a Colorado company to facilitate the reg-neg process. (MacKnight Decl. P 8.) *fn7" The reg-neg group held its first two meetings on June 27 and July 10, 1995, and invited more than twenty organizations representing environmental, business and civic interests to participate. (Id. PP 8-11; Exs. D-63, D-64.) The reg-neg participants agreed to focus on developing remedies for the three tiers of Pennsylvania's antidegradation policy. Id. P 11. On July 14, 1995, State officials stated that the reg-neg process would conclude in March 1996. (Ex. P-11 at 2). As of this date, Pennsylvania has not adopted a water quality standard that complies with federal law.

 Meanwhile, the EPA has not even started working on the two primary documents that it must prepare to promulgate a water quality standard for a state: the draft Federal Register package and the final action memo. (Morris Dep. at 26; MacKnight Dep. at 36.) The draft Federal Register package generally contains documents that are necessary to "bring the Pennsylvania water quality standards in line with federal regulations." (Morris Dep. at 25.) The final action memo, signed by the Regional Administrator, recommends promulgation of the standard and is forwarded to the Administrator for approval. Id. The EPA plans to prepare the draft Federal Register package when the results of Pennsylvania's reg-neg process are complete. (Morris Dep. at 27.) Region III has not yet received authority from the Administrator to move forward with the promulgation process. (MacKnight Dep. at 41.) The EPA believes that Pennsylvania is "honestly and professionally pursuing the regulation review and development procedure and that this is not a sham." (Morris Dep. at 50.) The EPA is


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