C. DARNELL JONES, II, District Judge.
Pending before the court is a motion to dismiss filed by all named defendants seeking dismissal of Counts I and IV of the complaint on the grounds that plaintiff has not alleged that the Environmental Protection Agency (EPA) failed to perform a non-discretionary duty (Count I) and there has been no final agency decision as to plaintiff's reconsideration request (Count IV). (Doc. No. 12.) Plaintiff responds by arguing that the EPA failed to follow proper administrative procedures and that such a failure constitutes a non-discretionary duty for which plaintiff may seek relief under 33 U.S.C. §1365(a)(2). (Doc. No. 13.) Plaintiff further contends that its informal communications with the EPA, a privilege log produced in response to a FOIA request, and an affidavit by the manager for the Telford Borough Authority all conclusively establish that there has been final EPA action on the reconsideration request. (Doc. No. 13.) In light of the following discussion, and, after thoroughly reviewing the parties' briefs and exhibits, the court will GRANT the motion IN PART and DENY IN PART. The court will GRANT the motion to dismiss as it relates to COUNT I. Furthermore, the court will DENY the motion to dismiss WITHOUT PREJUDICE at it relates to COUNT IV. Finally, the court will GRANT the parties LEAVE TO ENGAGE IN LIMITED DISCOVERY on the issue of subject matter jurisdiction.
This dispute arises out of a disagreement between the Telford Borough Authority, a Pennsylvania municipality, and the EPA over the Indian Creek Watershed total maximum daily load ("TMDL"), a document setting limits for pollutant discharge into the Indian Creek waterway. Telford owns and operates a publicly owned treatment works that is located within the boundaries of the Indian Creek Watershed. (Doc. No. 1, at 3.) EPA Region 3 is responsible for administering and implementing the Clean Water Act (CWA) in Pennsylvania. EPA Region 3 (Mid-Atlantic), UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Nov. 1, 2013), http://www2.epa.gov/aboutepa/epa-region-3-mid-atlantic. Defendant Lisa Jackson is the Administrator of the EPA, and Shawn Garvin is the agency's Region 3 Administrator. (Doc. No. 1, at 4.)
By way of relevant background, Congress passed the Clean Water Act in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to maintain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. §1251(a) & (a)(2). In light of these goals, the CWA envisions cooperation between the EPA and state environmental agencies. American Farm Bureau Federation v. U.S.E.P.A., ___ F.Supp.2d ___, 2013 WL 5177530, *2 (M.D.Pa. Sept. 13, 2013) (explaining that CWA "demand[s] cooperative federalism"). In Pennsylvania, the Department of Environmental Protection ("DEP") is primarily responsible for environmental regulation and, more pertinent for purposes of this case, water quality regulation. Raymond Proffitt Foundation v. U.S.E.P.A. , 930 F.Supp. 1088, 1092 n. 4 (E.D.Pa. 1996) (documenting history of DEP).
Section 1313(a) of the CWA requires states to establish water quality standards ("WQSs"), which "designate uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S.C. §1313(a) (states to complete WQSs); 33 U.S.C. §1313(c)(2)(A) (defining WQSs). WQSs can take the form of numeric standards, which utilize numeric or quantitative parameters, and narrative standards, which "express a parameter in a qualitative form." Basic Course: Key Concepts (Module 3.e), Forms of Expression: Numeric and Narrative Criteria, ENVIRONMENTAL PROTECTION AGENCY (March 6, 2012), http://water.epa.gov/learn/training/standardsacademy/mod3/page6.cfm. The EPA may revise a state-created WQS if it determines that the "current standard is inconsistent with the CWA" but only after the agency formally notifies the state of the discrepancy. 33 U.S.C. §§1313(b)(1) & (c)(4) (EPA may revise WQS if state's proposal is not consistent with CWA); 40 C.F.R. §131.5 (in deciding to disapprove state WQS, EPA should determine whether it is consistent with requirements of CWA). The formal notification period gives the state 90 days to bring its WQS into compliance with the CWA before the EPA may revise the WQS itself. 40 C.F.R. §131.21 (setting forth 90 day period); 40 C.F.R. §131.22 (same). Once the 90-day period had passed, the EPA may revise the WQS pursuant to notice-and-comment rulemaking. 5 U.S.C. §553 (setting forth notice-and-comment requirement of the Administrative Procedure Act).
Once a WQS has been implemented, it is used as a baseline to measure the health of the water bodies for which it was developed. If a body of water does not meet the standard set forth in the applicable WQS, it is designated "impaired" and added to a list of impaired waters known as the "303(d) list." 33 U.S.C. §1313(d). Once it is so designated, the CWA requires the state to draft a total maximum daily load ("TMDL"). 33 U.S.C. §1313(d)(1)(C). A TMDL "calculat[es] the amount of... pollutant an impaired water body can naturally absorb and remain unimpaired." West Goshen Sewer Authority v. U.S.E.P.A., 12-CV-5353, 2013 WL 3914481, *1 (E.D.Pa. July 30, 2013); 33 U.S.C. §1313(d)(1)(C). More specifically, a TMDL must "be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." 33 U.S.C. §1313(d)(1)(C).
If the EPA administrator disapproves of the state TMDL, the EPA may establish its own TMDL or revise the state TMDL but must follow notice-and-comment rulemaking provisions of the Administrative Procedure Act ("APA") in doing so. 33 U.S.C. 1313(d)(2); 5 U.S.C. §553. The TMDLs themselves are not self executing but are implemented through National Pollutant Discharge Elimination System ("NPDES") permits. Delaware County Safe Drinking Water Coalition, Inc. v. McGinty, 07-CV-1782, 2007 WL 2213516, *6 (E.D.Pa. July 31, 2007).
The Department of Environmental Protection uses narrative criteria to regulate nutrients in Pennsylvania waterways. 25 Pa. Code §93.6(a) ("Water may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life."). In sum, these criterion prohibit nutrient levels that are harmful to the specific water body in question but do not set a numerical cap on different levels of nutrients. Based on this narrative criteria, "a Pennsylvania waterbody is impaired by nutrients when excessive plant or algal growth causes a decrease in [dissolved oxygen] such that the [dissolved oxygen] level goes below the required amount necessary to support the designated use of that waterbody." (Doc. No. 1, at 9; see also Implementation Guidance for Section 95.9 Phosphorous Discharges to Free Flowing Streams, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION (Oct. 27, 1997), http://www.elibrary.dep.state.pa. us/dsweb/Get/Document-48364/XXX-XXXX-XXX.pdf.) As such, "the DEP's 303(d) listing methodology (the standard by which DEP determines whether a stream is nutrient impaired) specifically requires nutrients to be causing excessive plant growth and/or violations in the dissolved oxygen standard." (Doc. No. 1, at 10.)
In 2004, the Pennsylvania DEP identified Indian Creek as nutrient impaired. (Doc. No. 1, at 8.) On June 30, 2008, EPA Region 3 issued the Indian Creek TMDL "to address segments in the Indian Creek watershed listed on the state's 303(d) list as not meeting aquatic life uses and impaired by siltation (sediments) and nutrients." (Doc. No. 1, at 8.) In response, plaintiff filed the present complaint on November 11, 2012, alleging that the EPA's TMDL violated the Clean Water Act and the Administrative Procedures Act. More specifically, Count I of the complaint alleges that the EPA violated §303 of the CWA by failing to follow proper administrative procedures when it revised the Indian Creek WQS. (Doc. No. 1, at 14-15.) In Count II, plaintiff alleges that the EPA exceeded its statutory authority by creating a TMDL which was not based on the WQS created by the state of Pennsylvania, thereby violating 40 C.F.R. §122.44(d), 40 C.F.R. §130.7, and 25 Pa. Code §96.4(e)(1). (Doc. No. 1, at 16.) In Count III, plaintiff alleges that the EPA's TMDL was arbitrary, capricious, and an abuse of discretion in violation of 5 U.S.C. §706(2)(A) because it was based on nutrient levels when there was no evidence establishing a causal link between nutrient levels and Indian Creek's impairment. (Doc. No. 1, at 17-18.) Finally, in Count IV plaintiff claims that the EPA acted arbitrarily, capriciously, and abused its discretion in violation of 5 U.S.C. §706(2)(A) by disregarding new data and the recommendations of the EPA's Science Advisory Board when it denied plaintiff's motion for reconsideration. (Doc. No. 1, at 18-19.)
STANDARD OF REVIEW
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).
Count I: 33 U.S.C. ...