Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WEST VIRGINIA RIVERS COALITION v. E.P.A.

January 14, 2004.

WEST VIRGINIA RIVERS COALITION
v.
ENVIRONMENTAL PROTECTION AGENCY, et al



The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

This action concerns whether the Environmental Protection Agency ("EPA") has complied with the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., better known as the Clean Water Act.

I.

  Plaintiff West Virginia Rivers Coalition ("WVRC") is a nonprofit environmental organization which advocates the conservation and restoration of that state's rivers and streams. It brings this claim under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, against the EPA and two of its officials. Plaintiff claims that the EPA's approval of certain Water Quality Standards ("WQSs") adopted by the state of West Virginia pursuant to the Clean Water Act was arbitrary, capricious, and an abuse of discretion. See § 706(2)(A). Plaintiff further asks for a declaratory judgment that the EPA unlawfully withheld or unreasonably delayed nondiscretionary Page 2 actions required by the Clean Water Act. See § 706(1). Now before the court are cross-motions for summary judgment.

  We may grant summary judgment only if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We review all evidence and make all reasonable inferences from the evidence in the light most favorable to the non-movant. See Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998).

  II.

  When Congress enacted the Clean Water Act in 1972, its objective was to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). A central goal of the Act is the establishment of WQSs. Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992). Among other things, WQSs include criteria that place a cap on the allowable concentrations of pollutants in water supplies since high levels may be harmful to humans as well as aquatic life.

  Under the Clean Water Act, the Governor or water pollution control agency of each state must at least once every three years review and, as appropriate, modify, its WQSs. 33 U.S.C. § 1313(c)(1). The WQSs are then reviewed by the EPA to determine if they meet the requirements of the statute. § 1313(c)(3). If the EPA determines that a state's proposed WQSs meet those requirements, the EPA must then approve the WQSs Page 3 within sixty days of the state's submission. Id. The proposed WQSs then become applicable to the waters of the state. Id. On the other hand, if the EPA finds that a WQS is not consistent with the Act, it must notify the state within ninety days and specify what changes are required. Id. If the state has not adopted such changes within ninety days of the EPA's notification, the EPA is obligated promptly to prepare and publish proposed WQSs. § 1313(c)(4). The new WQSs are to be promulgated by the EPA within ninety days of its publication of the proposed standards unless, "prior to such promulgation, [the] State has adopted a revised or new water quality standard which the [EPA's] Administrator determines to be in accordance with this Act." Id.

  Ill.

  As noted above, plaintiff WVRC brings its action under the APA which states, a "reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed[,] and 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. Our Court of Appeals has held that under the APA, "[a]gency action is entitled to a presumption of regularity. The burden of proof rests with the party alleging irregularity." Frisby v. United States Dept. of Housing & Urban Dev., 755 F.2d 1052, 1055 (3d Cir. 1985) (citation omitted). Moreover, the Third Circuit has noted: Page 4

 
A reviewing court "must generally be at its most deferential" when reviewing factual determinations within an agency's area of special expertise. New York v. E.P.A., 271 U.S.App.D.C. 276, 852 F.2d 574, 580 (D.C. Cir. 1988), cert. denied, 489 U.S. 1065 (1989). It is not the role of a reviewing court to "second-guess the scientific judgments of the EPA." American Mining Congress v. E.P.A., 285 U.S.App.D.C. 173, 907 F.2d 1179, 1187 (D.C. Cir. 1990). Rather, we must "review the record to ascertain that the agency has made a reasoned decision based on reasonable extrapolations from some reliable evidence, to ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (internal quotations and citations omitted).
Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 117 (3d Cir. 1997).
  Nonetheless, our review of an administrative action is not a "rubber stamp." Indeed, we may "tak[e] a probing, hard look at the agency's action." Frisby, 755 F.2d at 1055. As the Supreme Court explained in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983),
[n]ormally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
  Of the WVRC's many arguments as to why the EPA's actions have violated the requirements of the Clean Water Act, we Page 5 note at the outset several that are without merit. First, the WVRC asserts that the EPA violated the Act when, in affirming a number of West Virginia's WQSs, it reversed some of its own determinations from prior years. For example, the EPA disapproved West Virginia's manganese water quality criteria in 1994 but it approved the exact same criteria in 2003, finding that they were consistent with the scientific literature. This type of reversal, however, does not in and of itself mean that the EPA has acted arbitrarily, capriciously, or contrary to law. Indeed, "[i]t is well established that an agency may alter or reverse its position if the change is supported by a reasoned explanation." Pavesi v. U.S. Dept. of Labor, 758 F.2d 956, 963 (3d Cir. 1985) (internal quotation marks and citations omitted). See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 289 (D.C. Cir. 1981). The Supreme Court has also "fully recognize[d] that regulatory agencies do not establish rules of conduct to last forever, and that an agency must be given ample latitude to adapt their rules and policies to the demands of changing circumstances." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 42 (internal quotation marks and citations omitted). To hold otherwise would impose an unworkable rigidity upon a government agency's policymaking.

  WVRC also argues that a number of the EPA's approvals contradict its own policy and guidance documents, such as its Water Quality Guidance publication. However, these documents, unlike substantive rules, are not binding upon the public or the Page 6 agency. Syncor v. Shalala, 127 F.3d 90 (D.C. Cir. 1997). The EPA may deviate from its own policy and guidance documents, especially when it shows a rational connection between the scientific evidence and its determination.

  The WVRC also maintains that the EPA violated the Clean Water Act because it did not arrange for a public hearing and comments to accompany its decisions to approve West Virginia's proposed WQSs. However, the Act and its implementing regulations do not require the EPA to conduct hearings or obtain comments when it approves a state's proposed WQSs. 33 U.S.C. § 1313(c)(3). See City of Albuquerque v. Browner, 97 F.3d 415, 425-26 (10th Cir. 1996). Rather, the Governor or water pollution control agency of each state is responsible for holding public hearings when they propose new WQSs. § 1313(c)(1). The EPA is only required to conduct hearings when it has disapproved a proposed WQS and is itself promulgating a new standard. 40 C.F.R. § 131.22. In the case at bar, the EPA has approved the standards set forth by West Virginia and has not promulgated standards of its own. Therefore, it was West Virginia's duty, and not the EPA's, to ensure that proper public hearings took place for the WQSs at issue in this case. We do not think that the EPA can be held responsible for the state's failure in this regard. See City of Albuquerque, 97 F.3d at 425-26.

  IV.

  We now proceed to "review the record to ascertain that the agency has made a reasoned decision based on reasonable Page 7 extrapolations from some reliable evidence, to ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." American Mining Congress v. E.P.A., 907 F.2d 1179, 1187 (D.C. Cir. 1990) (internal quotation marks and citations omitted). WVRC contests the EPA's actions or inactions regarding the following WQSs.*fn1

  A.

 
Standard to Protect Human Health from Excess Manganese
  In October, 1993, West Virginia proposed a statewide human health criterion for manganese of 1,000 micrograms per liter (ug/1).*fn2 On January 10, 1994, the EPA determined that this criterion did not meet the requirements of the Clean Water Act, noting that its published criterion at the time was 30 ug/1. West Virginia was directed to "either adopt EPA's published criterion for manganese or provide documentation on the scientific defensibility of the State's criterion." Letter from Stanley L. Laskowski, Acting Regional Director of the EPA, to Dr. David E. Samuel, Chairman of the West Virginia State Water Resources Board at 6 (Jan. 10, 1994). Ninety days later, West Virginia had not developed a revised manganese human health Page 8 standard. Under the Act, the EPA was required to promulgate a new standard "promptly." 33 U.S.C. § 1313(c)(4). As of February 24, 2003, the date that the original complaint was filed, the EPA had still not done so. On June 24, 2003, the EPA announced its approval of the 1,000 ug/1 criterion for manganese.

  Plaintiff argues that the EPA's approval of the 1,000 ug/1 criterion for manganese human health was arbitrary and capricious since the allowable concentration of manganese is much greater than the 50 ug/1 level listed in the EPA's Water Quality Criteria for April, 1999. However, upon review of the administrative record before us, we decline to find that the EPA's approval of West Virginia's manganese standard violated the Clean Water Act. The EPA has shown that it made a reasoned decision based on extrapolations from reliable evidence. When it announced its approval of the 1,000 ug/1 criterion in 2003, the EPA predicated its action on a review of current scientific literature. The EPA examined a dozen studies and reports on the health effects of manganese, including studies released in the years 2000, 2002, and 2003. The EPA also cited its 1996 study which found that there are no observed adverse effects caused by manganese ingestion of up to 10 mg/day, which is equal to 10,000 ug/day. The EPA found that the average person drinks two liters of water a day. Thus, under West Virginia's cut-off for manganese such a person would ingest only 2,000 ug/day as a result of water intake. This is far below the danger point. Furthermore, the EPA cited to manganese exposure studies Page 9 involving human populations in Greece and Germany, which provide additional support for the 10,000 ug/1 level. We find that the EPA examined relevant data and articulated a reasonable explanation for the choice it made and for its reversal of a previous position.

  WVRC's remaining arguments that the EPA's approval of West Virginia's standard was arbitrary or capricious are unconvincing. For example, plaintiff asserts that it was inappropriate for the EPA to rely on a study of manganese intake by Greek citizens, rather than using a study involving West Virginia residents. As an initial matter, the record does not suggest that a pertinent study of West Virginians is available. WVRC also fails to articulate exactly why a consideration of a Greek report is irrational or improper. It was entirely appropriate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.