Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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

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

United States District Court, E.D. Pennsylvania


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 for the EPA to consider the exposure of a human population to high levels of manganese, regardless of where in the world those persons lived.

  B.

 

Standards to Protect Human Health and Aquatic Life from Excess Iron
  West Virginia adopted a statewide WQS for iron of 1,500 micrograms per liter (ug/1) in October, 1993. On January 10, 1994, the EPA rejected this standard, noting that its recommended criteria for iron were 300 ug/1 for human health and 1,000 ug/1 for aquatic life. West Virginia was advised to adopt the EPA's current criteria or defend its proposed standards, but it did not do so. Again, as of February 24, 2003, the date that the Page 10 original complaint in this action was filed, the EPA had not prepared or published proposed new iron WQSs for the state. Several months later, on April 17, 2003, the EPA announced its approval of West Virginia's proposed 1,500 ug/1 criterion.

  WVRC contends that the EPA's 2003 approval of West Virginia's iron standard was arbitrary and capricious. We disagree. A review of the administrative record shows that this standard was adopted as a result of reasoned scientific considerations. First, the EPA examined whether a 1,500 ug/1 criterion could be harmful to human health. Among other things, the EPA cited to a 2001 report from the Institute of Medicine's Food and Nutrition Board, which, in the words of the EPA, found that "[t]he tolerable upper intake level (UL), the highest level of daily nutrient intake that is likely to pose no risk of adverse health effects for almost all individuals, is [45,000 ug/day] for adults and [40,000 ug/day] for children." Letter from Jon M. Capacasa, Acting Director of the Water Protection Division of the EPA, to Dr. Edward M. Snyder, Environmental Quality Board of West Virginia, at App. 1 (Apr. 17, 2003). The average adult consumes two liters of water a day, which under West Virginia's standard would mean iron consumption of 3,000 ug/day as a result of drinking water. The EPA also noted that the maximum average adult intake of iron from food and supplements is 19,000 ug/day. Therefore, the average adult consumption of iron in West Virginia will be 22,000 ug/day, which is well below the danger level of 45,000 ug/day. Page 11

  The EPA's 2003 approval also considered the impact of the 1,500 ug/1 iron criterion on aquatic life. The EPA noted that "[i]n Pennsylvania, a neighbor state to West Virginia with similar types of waters and aquatic communities, studies have demonstrated that an iron criteria [sic] of 1,500 ug/1 would be protective of aquatic life." Id. at 5. The EPA also considered several studies from the past thirty years which support its approval of a 1,500 ug/1 criterion.

  WVRC's objections to the EPA's scientific reasoning are unconvincing. WVRC, for example, contends that the EPA inappropriately relied upon the water quality experience of a different state, Pennsylvania. We think it was entirely appropriate for the EPA to have relied on the results from a neighboring state where studies had been undertaken. Financial constraints undoubtedly prevent the community of ecological scientists from conducting environmental impact studies for every possible pollutant in every state or region in the United States. Therefore, in the field of environmental science, as in the field of law, it is often necessary and entirely proper to analogize to available experience. We decline to hold that the EPA has acted arbitrarily or capriciously with regard to these WQSs.

  C.

 

Standard to Protect Aquatic Life from Excess Aluminum
  On April 17, 2003, the EPA approved West Virginia's WQS for the protection of aquatic life from aluminum. WVRC argues that this approval was arbitrary and capricious because the test Page 12 for the presence of aluminum is based on "dissolved concentration" rather than on the purportedly more protective measure of "total concentration."

  In its 2003 approval, the EPA acknowledged that there is conflicting scientific literature regarding the appropriate method for measuring the presence of aluminum. Nevertheless, the EPA cited to a published scientist in the field who recently reported that dissolved aluminum is the best measure of toxic forms of aluminum and that "total" measurements overestimate toxic concentration.

  The WVRC counters that there are credible arguments by other environmental scientists that total aluminum is a better measure than dissolved aluminum. While this may be so, it is not the place of this court to decide between the viewpoints of experts in this highly technical field. Such a determination is within the authority of the administrative agency. The Supreme Court has held that "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). We therefore decline to overturn the EPA's acceptance of the West Virginia WQS for aluminum. Page 13

  D.

  Standard for 3-Methyl-4-Chlorophenol

  On June 22, 1999, the EPA disapproved West Virginia's proposed WQSs because the state had removed water quality criteria for nine phenolic compounds, including 3-methyl-4-chlorophenol. On June 18, 2001, West Virginia proposed new WQSs for phenolic materials, but did not include a proposed standard for 3-methyl-4-chlorophenol. Nevertheless, on April 17, 2003, the EPA approved West Virginia's proposed list. The EPA explained this approval, in part, by noting that "[t]he National Recommended Water Quality Criteria for 3-methyl-4-chlorophenol is based on organoleptic effects (taste and odor) rather than the protection of human health." Letter from Jon M. Capacasa to Dr. Edward M. Snyder, at App. 3 (Apr. 17, 2003).

  WVRC argues that, the EPA's approval notwithstanding, West Virginia's failure to establish a WQS for 3-methyl-4-chlorophenol was arbitrary and capricious. WVRC asserts that the EPA's approval was improper because this chemical carries dangers of (1) harming human life and (2) rendering drinking water and caught fish unpalatable.

  With regard to the first issue, we find that the EPA has not properly considered the effect of 3-methyl-4-chlorophenol on human health. The EPA justifies the removal of any standard for this chemical by citing to its 1986 "Gold Book," which indicates "that there is insufficient data on 3-methyl-4-chlorophenol to derive a toxicity based criteria." Letter from Page 14 Jon M. Capacasa to Dr. Edward M. Snyder, at App. 15 (Apr. 17, 2003). In this particular, we do not think the EPA has satisfied its statutory mandate. It rests its decision on the unavailability of data. Apparently, no effort has been made to resolve the issue one way or the other for seventeen years. The EPA must rely heavily upon the research of others in the field of environmental science. But if a significant concentration of a chemical has the potential to harm human health, the EPA cannot approve unlimited levels of the chemical when it has no definitive report or study of any age on the subject and has made no attempt to update inconclusive information for seventeen years. This manner of acting in the dark is inconsistent with its duty to protect human health. While we are certainly not requiring the EPA to perform or obtain specific studies on any particular timetable, the 1986 Gold Book on which the EPA relies does not conclude that 3-methyl-4-chlorophenol carries no dangers to human health. We find that under the specific factual circumstances of this case, taking into consideration the length of time that has passed since 1986 and the inconclusive nature of the study cited by the EPA, the Agency has violated its duty with regard to this standard.

  The second issue, relating to whether 3-methyl-4-chlorophenol may affect the taste of drinking water as well as fish, also deserves consideration. The Clean Water Act requires that WQSs "be established taking into consideration their use and value for public water supplies, propagation of fish and Page 15 wildlife, recreational purposes, and agricultural, industrial, and other purposes." 33 U.S.C. § 1313 (c)(2)(A). The Act states that we have a national goal of "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." § 1251(a)(1, 2). Nonetheless, in the portions of the Administrative Record that the parties have made available to the court, the EPA rests its approval of West Virginia's lack of a 3-methyl-4-chlorophenol standard solely on grounds that this compound is not toxic to humans or aquatic organisms. The EPA apparently failed to consider taste and odor issues which are mandated by the Clean Water Act. If it is true, as the EPA concedes, that 3-methyl-4-chlorophenol affects the taste and odor of water, then the EPA should have at least considered the use and value of an appropriate water quality standard. It goes without saying that water supplies are of reduced utility to the public when the taste and smell of the water are unpleasant. In addition, the EPA had a duty to consider whether the effect of 3-methyl-4-chlorophenol on the taste of caught fish would adversely impact "water contact recreation," which is a designated use of waters in West Virginia. The EPA cites to no place in the Administrative Record where it considered whether and how recreational fishing suffers if caught fish carry the taste of 3-methyl-4-chlorophenol.

  We find that under the Clean Water Act, the EPA had a duty to consider the impacts of 3-methyl-4-chlorophenol on the Page 16 taste and odor of water and caught fish. The EPA has failed to demonstrate that it performed this duty. As the Supreme Court stated 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 . . . entirely failed to consider an important aspect of the problem."

  Accordingly, we find that the EPA is in violation of the Clean Water Act with regard to its approval of West Virginia's removal of a 3-methyl-4-chlorophenol standard.

  E.

  Standard to Protect Aquatic Life in Fly Ash Run from Selenium

  In 2001, West Virginia proposed a WQS for the presence of selenium in "Fly Ash Run," a body of water within its borders. The standard stated that the four-day average concentration of selenium should not exceed 5 ug/1 more than three times every three years. The EPA approved this standard on April 17, 2003.

  WVRC claims that the selenium approval violates the Clean Water Act because it contradicts the EPA's guidance documents as well as the Agency's own experts. As we have noted above, the EPA may reverse an earlier position as long as the reversal is based on a reasoned analysis. The Administrative Record demonstrates that a scientist in the EPA's Health and Ecological Criteria Division, Keith Sappington, thoroughly reviewed and evaluated a study conducted by the Great Lakes Environmental Center. Mr. Sappington concluded that selenium Page 17 exceedances of three times every three years would not result in an unacceptable risk to aquatic life. On this record, we conclude that the EPA did not violate the Clean Water Act. The fact that the EPA followed the recommendations of one of its experts and declined to follow the recommendations of others is not a sufficient ground for finding a violation of the statute.

  The WVRC's remaining contention is that the approved selenium WQS limits excursion to "not . . . more than three times every three years (36 months), on average" (emphasis added). WVRC complains that the addition of the phrase "on average" permits the selenium criterion to be exceeded as many as six times in one year, as long as the average is computed over six years. However, we find that the EPA adequately addressed this concern. Fish are among the aquatic organisms that are the most sensitive to selenium, but they are the farthest up the food chain and therefore any exposure that they have to selenium is delayed. More than three exceedances in one three year period, followed by a correspondingly lower number of exceedances in subsequent three year periods, will in the EPA's judgment not lead to any greater harm to fish. We decline to reject the complex scientific analysis and reasoning of the EPA's experts. The EPA's approval of this standard was consistent with the requirements of the Clean Water Act. Page 18

  F.

  Procedure for Adopting Site-Specific Natural Background Criteria

  In 1998, West Virginia proposed a water quality rule which stated that its "[n]umeric water quality standards shall not apply . . .[w]here lesser quality is due to natural conditions. In such cases the naturally occurring values shall be the applicable criteria[, p]rovided [t]hat the existing and designated uses of downstream waters are not adversely affected." This proposal, an effort to establish "Natural Background Criteria," would have created a broad exception to the applicability of West Virginia's approved WQSs.

  On June 22, 1999, however, the EPA disapproved this proposed standard, noting that it established natural background criteria without "(1) a demonstration that designated and existing uses are protected, (2) providing a procedure to ensure that natural background concentrations are determined accurately and reproducibly, (3) providing an opportunity for public review and comment on those criteria adjustments, and (4) limiting the natural background policy to aquatic life." Letter from W. Michael McCabe, Regional Administrator of the EPA, to Dr. Edward M. Snyder, Chairman of the West Virginia Environmental Quality Board, Appx. (June 22, 1999). West Virginia responded in 2001 with a much more detailed standard for the establishment of site-specific natural background criteria.*fn3 Page 19

  The EPA approved West Virginia's new proposal in 2001. The WVRC argues that this EPA approval was arbitrary and capricious. Upon review of this new rule, we find that it addresses each of the concerns that the EPA had with West Page 20 Virginia's 1998 rule and, in any event, satisfies the dictates of the Clean Water Act.

  WVRC asserts that, contrary to the EPA's 1999 instructions, the new rule does not specifically require a "demonstration" of how existing and designated uses of water will be protected. The plaintiff also observes that the new rule gives the West Virginia's water pollution control agency the option of whether or not to require additional studies when some data is not available. The 2001 rule states that "[w]here adequate data are unavailable, additional studies may be required by the Board," (emphasis added) as opposed to additional studies shall be required by the Board. According to the WVRC, this proves that the EPA has acted arbitrarily and capriciously.

  We are unconvinced by WVRC's arguments, which are based on a myopic analysis of recent exchanges between the EPA and West Virginia. The WVRC concentrates on the fact that the approved rule does not specifically require a "demonstration," and on the word "may." Admittedly, these facets of the 2001 rule grant some latitude to West Virginia. However, the plaintiff's analysis ignores the basic thrust of the new rule. It is also beyond question that the 2001 rule addresses the four concerns raised by the EPA, enumerated above, when it disapproved West Virginia's 1998 rule. Furthermore, the EPA's approval of West Virginia's natural background criteria procedure cannot be said to rise to the level of "arbitrary and capricious." As we pointed out earlier, an agency determination normally only rises to the level Page 21 of "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 decisions 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." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. The evidence does not demonstrate that the EPA showed such disregard for the statutory mandate of the Clean Water Act.

  G.

 

Standards for Pollutants at Concentrations below the "Practical Quantification Level"
  The Practical Quantification Level ("PQL") for a pollutant is the lowest concentration at which a pollutant can be detected using available monitoring methods. Since some pollutants can be harmful even when they are at concentrations below the PQL, they must by necessity be measured through indirect, rather than direct, means.

  In 1998, West Virginia proposed a rule to determine how the state would test for the presence of various organic chemicals when the water concentration of the chemicals fell below the PQL. The rule stated that "[w]hen the specified criteria are less than the practical laboratory quantification level, instream values will be calculated from discharge concentrations and flow rates and from fish body burden, where applicable." The rule went on to indicate that "[t]he following body burden criteria shall not be exceeded in edible tissues of Page 22 fish: . . . Chlordane 1.0 (ug/g), DDT 0.1 (ug/g) . . . Dieldrin 0.3 (ug/g), Endrin 0.3 (ug/g), Toxaphene 1.0 (ug/g), PCB 2.0 (ug/g), Dioxin 6.4 (pg/g)." The EPA disapproved this proposal, noting that it could be interpreted as establishing alternative criteria to approved water quality criteria. In 2001, West Virginia revised its proposed rule by removing references to fish body burdens, and the EPA approved this new rule on April 17, 2003.

  Plaintiff objects to the approved rule on the ground that it contains essentially the same deficiencies as the previous rule. However, the EPA had a good reason for disapproving the 1998 version and for approving the updated one. The 1998 version could have been interpreted as an attempt by West Virginia to create alternative WQSs for such chemicals as chlordane, DDT, dieldrin, and endrin. The current version, on the other hand, establishes a means for determining compliance with water quality criteria that have concentrations lower than PQL. Because these concentrations cannot be directly measured, it was quite rational for the EPA to approve a rule that calls for indirect methods of measurement, such as discharge concentrations and flow rates.

  H.

  To summarize, we find that the EPA's approval of West Virginia's WQSs was consistent with the Clean Water Act, except for its approval of the WQSs without proper review of 3-methyl-4-chlorophenol, which was arbitrary and capricious. We note, however, that the EPA's compliance with the Act with regard Page 23 to several other WQSs did not occur until after plaintiff instituted this lawsuit.

  V.

  We next turn to the plaintiff's request for a judicial declaration that the "EPA failed to perform a mandatory duty under section 303(c) of the Clean Water Act by failing promptly to prepare and publish proposed water quality criteria for aquatic life for iron, human health for iron, and human health for manganese for West Virginia." Pl. Prop. Order at 1. WVRC points out that the EPA disapproved West Virginia's manganese and iron standards in 1994. Following this disapproval, West Virginia did not propose updated standards within ninety days. Under the Clean Water Act, the EPA was then required "promptly" to prepare and publish proposed regulations setting forth a new or revised WQS. 33 U.S.C. § 1313(c)(4). The EPA did not do so. Only after plaintiff filed its complaint did the EPA approve West Virginia's WQSs for iron and manganese. The EPA contends that its approval of these WQSs has mooted the plaintiff's claim for a declaratory judgment.

  In Thompson v. U.S. Department of Labor, 813 F.2d 48, 51 (3d Cir. 1987) our Court of Appeals detailed the standard for determining whether a government agency's correction of its past behavior will render a claim moot:

  The voluntary cessation of official activity or policy may, of course, moot a case. New Jersey Turnpike Authority v. Jersey Central Power and Light, 772 F.2d 25, 31 (3rd Cir. 1985). The defendants, however, bear a "heavy burden" to establish mootness in such Page 24 a case. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 72, 78 L.Ed.2d 58, 104 S.Ct. 373 (1983). Two conditions must be met in order for cessation of a challenged policy to moot a case. First, there must be no reasonable likelihood that the alleged wrong will recur. Iron Arrow, 464 U.S. at 72. This criterion has been interpreted to require more than speculation that a challenged activity will be resumed. Preiser v. Newkirk, 422 U.S. 395, 403, 45 L.Ed.2d 272, 95 S.Ct. 2330 (1975). Second, the party seeking relief must have been made whole. County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L.Ed.2d 642, 99 S.Ct. 1379 (1979).

 With regard to the first prong of this test, the plaintiff fails to explain why there is any reasonable likelihood that the harm in question will recur. The EPA has approved the WQSs related to iron and manganese and, as we have concluded, these approvals are consistent with the Clean Water Act. While there is always a chance that the EPA might attempt to revoke its approval of the WQSs, this risk is not enough to constitute a "reasonable likelihood that the alleged wrong will occur." The plaintiff's fears amount to mere speculation.

  We also find that, under the second prong of the test, the plaintiff has been made whole by the EPA's approval of the West Virginia's WQSs for iron and manganese. WVRC sought relief in the form of WQSs for iron and manganese that satisfy the requirements of the Clean Water Act. We have already held that the standards approved by the EPA for these pollutants are consistent with the Agency's statutory mandate. Therefore, there is nothing more that a court decision can grant to the plaintiff. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Page 25 Cir. 1996); Rosetti v. Shalala, 12 F.3d 1216, 1233 (3d Cir. 1993); Natural Res. Def. Council v. United States Nuclear Regulatory Comm'n, 680 F.2d 810, 814 (D.C. Cir. 1982). The plaintiff's request for a declaratory judgment regarding the iron and manganese WQSs is moot.

  VI.

  Finally, we note that plaintiff also requests attorney fees and costs for bringing this litigation against the EPA. The Clean Water Act provides in pertinent part that "[t]he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). We have found that plaintiff has prevailed on the part of its claim that relates to the WQS for 3-methyl-4-chlorophenol. Moreover, the issues raised by plaintiff in its original complaint regarding the EPA's failure to act "promptly" on the iron and manganese WQSs were valid and have become moot only after plaintiff filed the current lawsuit. If plaintiff intends to seek attorney fees and costs, it shall file within thirty days a motion to this effect together with appropriate documentation, as well as a supporting brief. Page 26

  ORDER

  AND NOW, this __ day of January, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:

  (1) the claim of plaintiff West Virginia Rivers Coalition that the Environmental Protection Agency ("EPA") should be required to approve or disapprove West Virginia's proposed site-specific standard for manganese is DISMISSED, by agreement of the parties, as moot;

  (2) the motion of plaintiff for summary judgment is GRANTED in part and DENIED in part, and the motion of defendants for summary judgment is GRANTED in part and DENIED in part;

  (3) judgment is entered in favor of plaintiff West Virginia Rivers Coalition and against defendants Environmental Protection Agency, Christie Todd Whitman, Administrator, and Donald S. Welsh, Administrator of Region III with respect to plaintiff's claim that the EPA approved West Virginia's Water Quality Standards ("WQSs") without proper review of 3-methyl-4-chlorophenol; Page 27

  (4) the EPA shall promptly review West Virginia's omission of 3-methyl-4-chlorophenol from its WQSs according to the requirements of the Clean Water Act and document its review process in the Federal Register. If the EPA approves the WQSs without 3-methyl-4-chlorophenol, it shall announce its approval within sixty days of this Order. If the EPA disapproves, it shall announce its disapproval within ninety days of this Order. If the EPA disapproves the omission of a 3-methyl-4-chlorophenol standard, it shall promulgate a new standard, and submit this new standard to a public hearing and comment period consistent with the terms of the Clean Water Act and its implementing regulations, within 270 days of this Order;

  (5) judgment is entered in favor of defendants Environmental Protection Agency, Christie Todd Whitman, Administrator, and Donald S. Welsh, Administrator of Region III, and against plaintiff West Virginia Rivers Coalition on the remaining claims against the defendants; and

  (6) plaintiff shall file within thirty days of this Order any motion for attorney fees and costs, together with appropriate documentation and supporting brief.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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