ELR Citation: ELR 21258
No(s). 93-35973, -36000 (9th Cir. Jun 22, 1995)

The court upholds the U.S. Environmental Protection Agency's (EPA's) issuance of a total maximum daily load (TMDL) of 0.013 parts per quadrillion (ppq) for dioxin in the Columbia River. The court first holds that EPA's decision is supported by substantial evidence, and rejects plaintiff citizen groups' claims that EPA failed to consider the TMDL's effect on aquatic life and that the ambient concentration selected fails to protect animal life. The documents that an EPA official referred to in an affidavit filed in the district court provide sufficient evidence to support EPA's setting the 0.013 ppq TMDL to protect aquatic biota and wildlife. Also, the TMDL satisfied any obligation EPA had under the Endangered Species Act concerning bald eagle populations on the Columbia River. EPA explicitly engaged in discussion with the U.S. Fish and Wildlife Service concerning the effect on wildlife, particularly bald eagles, before setting the TMDL. The court next holds that EPA's decision is not arbitrary or capricious with regard to the effect of dioxin on certain human subpopulations that consume greater quantities of fish. The potency factor EPA adopted for dioxin is the most stringent in the world, and EPA reasonably concluded that higher consumption of fish among subpopulations did not imply that the total quantity of fish consumed would be maximally contaminated. Moreover, assuming maximum consumption of fully contaminated fish, the risk level would still be only 23 in one million, which is within levels historically approved by EPA and upheld by courts. The court also holds that EPA's decision was not based on an unreasonable interpretation of state water quality standards. EPA reasonably interprets the one-in-one-million risk level mandated by state water quality standards for the general population as allowing for lower, yet adequate, protection of specific subpopulations.

The court next rejects the groups' argument that limiting the amount of dioxin without considering the presence of other similar-acting acting chemicals in the water fails to achieve the level of safety that state water quality standards mandate. Nothing in the Federal Water Pollution Control Act (FWPCA) requires TMDLs to be issued for all pollutants at once. Regulations pertaining to TMDL implementation specifically provide that TMDLs may be developed on a specific pollutant basis, and states bordering the Columbia River decided to proceed with environmental cleanup according to a chemical-by-chemical priority. The court holds that EPA's decision is supported by its own studies indicating that dioxin was the most toxic of these compounds, and that EPA reasonably concluded that expeditiously limiting dioxin would greatly reduce the general toxic risk posed by the presence of the other related pollutants. The court next rejects plaintiff-intervenor paper mills' claim that FWPCA §303(d)(1)(A)'s plain language prohibits a body of water from being listed as "water quality limited" and from being regulated by TMDLs before the application and proven ineffectiveness of less burdensome technology-based pollution controls. The court holds that EPA's interpretation of §303(d) as requiring TMDLs where existing pollution controls will not lead to attainment of water quality standards is reasonable and not contrary to congressional intent. FWPCA §301(b)(1)(A) and (B) require development of technology-based effluent limitations only for those point sources that are discharging pollutants subject to best practicable technology (BPT) limitations under the Act. The FWPCA is clear, however, that toxic pollutants are not subject to BPT limitations but to best available technology (BAT) limitations. And the Act does not exclude TMDLs for toxic pollutants. The court thus holds that §303(d) allows EPA to establish TMDLs for waters contaminated with toxic pollutants without prior development of BAT limitations.

Counsel for Plaintiff
Todd D. True, Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright, O'Scannlain, and Leavy, JJ.