ELR Citation: ELR 20592
No(s). 94 Civ. 8424 (PKL) (S.D.N.Y. Nov 12, 1998)

The court grants in part and denies in part the U.S. Environmental Protection Agency's (EPA's) summary judgment motions in an action by environmental groups alleging that EPA was required to intervene and establish total maximum daily loads (TMDLs) for New York and challenging EPA's approval of New York State's 1997 TMDL submissions. The court first holds that the law of the case doctrine does not preclude the court from considering whether EPA's duty to intervene is discretionary. Although a previous decision in this litigation clearly presumed that EPA's intervention duty is mandatory, the court did not directly assess whether characterization of the duty as such is legally correct. The court then holds it lacks subject matter jurisdiction over the groups' Federal Water Pollution Control Act (FWPCA) claim that EPA did not comply with it non-discretionary duty to intervene and promulgate TMDLs. The FWPCA does not expressly require EPA to deem state inaction a constructive submission by any particular date. Therefore, EPA has at least some discretion to determine at what point it is appropriate to deem state inaction a constructive submission meriting intervention.

The court next holds that the doctrine of administrative exhaustion does not bar the groups' claim that EPA's failure to intervene violates the Administrative Procedure Act (APA). In the instant case, there is no legal requirement that the groups petition EPA before bringing suit, and the court may not exercise judicial discretion to impose one. The court also holds that EPA's duty of intervention is not committed to agency discretion by law. In the context of the FWPCA's overall scheme and the provisions concerning TMDLs in particular, it is clear that TMDLs are to be established promptly by the states or, if they are dilatory, by EPA. Promptly, in this context, means within months or, perhaps, within a very few years. Thus, the FWPCA provides a sufficient framework for determining whether EPA has abused its discretion in failing to intervene. The court further holds that a genuine issue of material fact exists as to whether EPA has violated the APA by not yet intervening to establish TMDLs for state water bodies.

The court next holds that EPA's decision to approve or disapprove TMDLs is discretionary in nature and is not reviewable under the FWPCA. The court then holds, however, that EPA's approval of New York's phosphorous TMDLs is contrary to the plain language of the FWPCA and would, therefore, appear not to be in accordance with the law in violation of the APA. The phosphorous TMDLs were not calculated at levels sufficient to allow for safe consumption as required by the FWPCA but, instead, were calculated at a level sufficient only to attain safe recreational use. However, the language of the FWPCA does not allow for incremental achievement of water quality standards through successive approval of TMDLs that fall short of the required standard. The court also holds that a genuine issue of material fact exists as to whether the 10 percent margin of safety incorporated into New York's phosphorous TMDLs is sufficient. Further explanation is required from EPA as to how the margin was calculated and whether it is sufficient. The court further holds that there is insufficient evidence that the approved TMDLs contain appropriate wasteload and load allocations. The court then holds that further explanation from EPA is necessary on whether the conversion of the annual load established by the approved TMDLs into a daily load limit is consistent with the FWPCA's requirements. The court next holds that a genuine issue of material fact exists as to whether seasonal variations are properly accounted for by the TMDLs. The court alsoholds that EPA is entitled to summary judgment on the issue of whether the TMDLs should not have been approved because they fail adequately to address dissolved oxygen. The groups provide no explanation of how that omission would render EPA's approval of the phosphorous TMDLs arbitrary and capricious.

Next, the court holds that there is a genuine issue of material fact as to whether the interpretation of the FWPCA underlying EPA's decision to deem the remaining 10 1997 reservoir TMDLs "informational" and, therefore, neither approved or disapproved, is contrary to congressional intent. It is undisputed that the water bodies for which New York submitted the 10 TMDLs were and are listed by the state as water-quality limited. As to such TMDLs, the FWPCA does not appear to provide EPA with discretion whether to approve or disapprove them. In addition, the court is not certain at this stage of the proceedings whether the convenience of allowing EPA to deem such TMDL submissions information after the fact might defeat some important purpose of the Act. Last, the court holds that EPA is not entitled to summary judgment on the groups' FWPCA or APA claims that EPA has failed properly to oversee and effectuate implementation of FWPCA §303(d). With respect to the FWPCA claim, EPA's sparse analysis fails to establish that the specific duties underlying plaintiffs' claim are discretionary. As to the APA claim, EPA also fails sufficiently to explain why the claim fails to state a viable cause of action.

Counsel for Plaintiffs
Mark A. Izeman
Natural Resources Defense Council, Inc.
40 W. 20th St., New York NY 10111
(212) 727-2700

Counsel for Defendants
Mary Jo White
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 637-2200