Puget Soundkeeper Alliance et al v. United States Environmental Protection Agency et al

Filing 62

ORDER denying Plaintiff's 28 Motion for Summary Judgment; granting Defendant's 48 Motion for Summary Judgment. This matter is DISMISSED without prejudice for lack of subject matter jurisdiction, by Judge John C Coughenour.(TM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PUGET SOUNDKEEPER ALLIANCE,

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Plaintiff,
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CASE NO. C13-1839-JCC
ORDER

v.
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UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,

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Defendant.

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This matter comes before the Court on the parties’ cross-motions for summary judgment
(Dkt. Nos. 28, 48). Having thoroughly considered the parties’ briefing and the relevant record,

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the Court finds oral argument unnecessary and hereby DENIES Plaintiffs’ motion (Dkt. No. 28)
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and GRANTS Defendant’s motion (Dkt. No. 48) for the reasons explained herein.

I.

BACKGROUND
The objective of the Clean Water Act (―the Act‖) ―is to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.‖ 33 U.S.C. § 1251(a). The
Act requires states to develop water quality standards, which ―define[] the water quality goals of

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a water body, or portion thereof, by designating the use or uses to be made of the water and by
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setting criteria necessary to protect the uses.‖ 40 C.F.R. § 130.3. States must review their water

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quality standards at least once every three years and submit any new or revised standards for the
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1 approval of the Administrator of the Environmental Protection Agency (―EPA‖). 33 U.S.C. §
2 1313(c); 40 C.F.R. § 131.21. This process is commonly known as the ―triennial review.‖ The
3 EPA must approve or disapprove the standards. 33 U.S.C. § 1313(c)(3). If it disapproves the
4 submitted standards, then it must eventually ―promptly prepare and publish proposed regulations
5 setting forth a revised or new water quality standard.‖ 33 U.S.C. § 1313(c)(4). Even if a state has
6 not submitted standards for approval, the EPA may sua sponte determine that a new or revised
7 standard is necessary, a determination that also triggers its mandatory duty to publish proposed
8 regulations. Id.
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This case concerns the fish consumption rate established by the State of Washington. The

10 fish consumption rate reflects one use of the waters, and is a component of the water quality
11 standards. See 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.3(i); (Dkt. Nos. 28 at 7, 48 at 10.)
12 Plaintiffs contend—and the EPA does not dispute—that Washington’s current fish consumption
13 rate underestimates the amount of fish consumed by Washington residents. The practical effect
14 of this is that fish and shellfish contain more toxins than they should given how much fish some
15 people eat. Washington State’s Department of Ecology (―Ecology‖) is currently in the process of
16 revising the state’s human health criteria using a revised fish consumption rate. (Dkt. No. 49.)
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Although this case arose out of concern about the fish consumption rate, the actual rate is

18 not at issue. Instead these summary judgment motions implicate a narrow question about the
19 legal effect of an email and letters sent to Ecology by individuals at the EPA. Plaintiffs contend
20 that these communications constitute a legal determination that the fish consumption rate is
21 inadequate. And having made such a determination, the EPA has a mandatory statutory
22 obligation to promptly promulgate revised standards. Defendant argues that there has been no
23 statutorily relevant determination and that this Court therefore lacks jurisdiction.
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DISCUSSION

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A.

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―The court shall grant summary judgment if the movant shows that there is no genuine

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Summary Judgment

1 dispute as to any material fact and the movant is entitled to judgment as a matter of law.‖ Fed. R.
2 Civ. P. 56(a). Material facts are those that may affect the case’s outcome. See Anderson v.
3 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if there
4 is enough evidence for a reasonable jury to return a verdict for the nonmoving party. See id. at
5 49. At the summary judgment stage, evidence must be viewed in the light most favorable to the
6 nonmoving party, and all justifiable inferences must be drawn in the nonmovant’s favor. See
7 Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).
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B.

The Clean Water Act

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Federal jurisdiction exists pursuant to 33 U.S.C. § 1365(a), which provides that ―any

10 citizen may commence a civil action . . . against the Administrator where there is alleged a
11 failure of the Administrator to perform any act or duty under this chapter which is not
12 discretionary with the Administrator.‖ 33 U.S.C. § 1365(a)(2). Absent the violation of a non13 discretionary duty, this Court lacks jurisdiction. See Northwest Envtl. Advocates v. United States
14 Envtl. Prot. Agency, 268 F.Supp.2d 1255, 1262 (D. Or. 2003) (―Because the condition precedent
15 for bringing a citizen suit has not been met, this court lacks jurisdiction over plaintiff’s second
16 claim for relief.‖).
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The source of any non-discretionary duty in this case is 33 U.S.C. § 1313(c)(4). That

18 provision states:
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The Administrator shall promptly prepare and publish proposed regulations
setting forth a revised or new water quality standard for the navigable waters
involved—

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(A) if a revised or new water quality standard submitted by such State under
paragraph (3) of this subsection for such waters is determined by the
Administrator not to be consistent with the applicable requirements of this
chapter, or

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(B) in any case where the Administrator determines that a revised or new standard
is necessary to meet the requirements of this chapter.

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The Administrator shall promulgate any revised or new standard under this

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paragraph not later than ninety days after he publishes such proposed standards,
unless prior to such promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in accordance with this
chapter.
33 U.S.C. § 1313(c)(4).
A § 1313(c)(4)(B) determination triggers the duty to ―promptly prepare and publish
proposed regulations.‖ The provision uses the mandatory language of ―shall‖ and there is no
dispute that the duty is mandatory once such a determination is made. Plaintiffs identify four
letters and one email that they argue are constitute negative determinations for purposes of this
provision. (Dkt. No. 28 at 11–12.)

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1. November 10, 2010 Email
Jannine Jennings, the Unit Manager of EPA Region 10’s Water Quality Standards Unit,
sent an email to Susan Braley at Ecology on November 10, 2010. Ms. Jennings wrote:

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I wanted to let you know that we will be sending a letter as part of your triennial
review request stating EPA’s desire for WA to move forward with revisions to the
human health criteria in order to incorporate a higher fish consumption rate. I
doubt this is a surprise but wanted to let you know in advance. Also, if there are
other things which you would find helpful to hear from EPA during this time,
please let us know.
(Dkt. No. 29, Ex. E.)

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2. December 16, 2010 Letter
One month letter, Ms. Jennings followed her email with a letter containing comments on

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Washington’s Surface Water Quality Standards Triennial Review. (Dkt. No. 29, Ex. F.) In that

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letter, Ms. Jennings wrote: ―EPA urges Ecology to make the revision of Washington’s human

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health criteria the most important priority in this Triennial Review.‖ (Id.) She noted that ―we are

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available and willing to work closely with you throughout your human health criteria update

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process.‖ (Id.) The letter also specifically addressed the fish-consumption rate, giving the

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background of the human health criteria and stating: ―EPA believes that a fish consumption rate

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of 6.5 grams per day is not reflective of fish and shellfish consumers in the State of
Washington.‖ (Id.) She recommended that Ecology ―examine the most recent EPA criteria

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1 documents as well as other technical developments and studies to determine an appropriate fish
2 consumption rate that would result in criteria protective of the State’s designated uses.‖ (Id.)
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3. January 17, 2012 Letter
In September 2011, Ecology issued a draft report related to the state’s fish-consumption

5 rate. Ms. Jennings wrote another letter on January 17, 2012, ―provid[ing] the [EPA’s] general
6 comments on [Ecology’s] process to undergo revisions to the state’s fish consumption rate.‖
7 (Dkt. No. Ex. G.) Ms. Jennings noted that Ecology’s document ―provides a strong framework for
8 your upcoming process to choose a fish consumption rate that more accurately reflects the fish
9 and shellfish consumed by people in Washington.‖ (Id.) Two concluding paragraphs stated:
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To reiterate, EPA believes the approach for developing a revised fish
consumption rate should be based on current scientific information and
local/regional data. The initial approach put forth in the draft report is aligned
with this thinking. While we understand the need for continued coordination with
your stakeholders and the Tribes, we encourage you to quickly incorporate this
information into your rulemaking process and move forward with adopting
revised criteria. . . .
EPA urges Ecology to continue the process of revising Washington’s human
health criteria in a timely manner. However, EPA recognizes that several key
questions still need to be decided. . . . Nonetheless, EPA believes the information
is currently available to make decisions on these matters and requests Ecology to
quickly move through the process necessary to do so. EPA remains committed to
working with Ecology, the Tribes and Washington’s stakeholders to facilitate the
adoption of water quality criteria that reflect appropriate fish consumption rates
for Washington’s waters and are protective of human health.

20 (Id. at 3.)
4. September 6, 2012 Letter

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On September 6, Dennis McLerran, the Regional Administrator, wrote a letter to

23 Ecology’s Director. This letter stated: ―The surveys demonstrate that tribal and other high fish
24 consuming residents are eating fish at rates significantly higher than the current default rates.‖
25 (Dkt. No. 29, Ex. H.) He wrote:
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It is crucial that the Department of Ecology continue to make progress in adopting

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human health criteria that incorporate scientifically sound data, including current
information regarding realistic fish consumption rates. Our understanding is that
Ecology is committed to updating water quality standards based on the best
available science. The best available science now in-hand demonstrates that
current standards are not based on realistic consumption rates for high fish
consumers. . . . Your July 16 letter indicates a commitment to commencing the
rule making process for surface water quality standards this month. We will be
monitoring that process closely and are supportive of its timely completion. . . . I
look forward to working together on this critically important issue.

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5. June 21, 2013 Letter
The last communication that Plaintiffs identify was sent on June 21, 2013, again from

8 Mr. McLerran to Ecology’s Director.1 (Dkt. No. 29, Ex. I.) This letter for first time cited the
9 relevant statutory sections. The letter was apparently in response to a budget proviso in a state
10 bill that Mr. McLerran thought might ―have significant impacts on Ecology’s process and
11 progress‖ in proposing a draft rule, and it ―reiterate[d] [EPA’s] perspectives on several technical
12 issues that are relevant to [Ecology’s] work.‖ (Id.) Toward the end of the letter, Mr. McLerran
13 noted that the EPA had the authority to amend the human health criteria:
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However, should Washington’s process be unnecessarily delayed, the EPA has
the authority to amend the NTR human health criteria for Washington, which the
EPA originally promulgated in 1992. Pursuant to Clean Water Act Section
303(c)(4)(B) and 40 C.F.R. § 131.22(b), the EPA promulgated the NTR for states
not complying with Section 303(c)(2)(B) of the Clean Water Act . . . . As
previously noted, since 1992, several national, regional, and local surveys have
been conducted that provide scientifically sound information that fish
consumption levels are considerably higher than 6.5 grams per day in
Washington.

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C.

Analysis

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This Court has jurisdiction only if the Administrator has failed to perform a non-

23 discretionary act or duty. See 33 U.S.C. § 1365(a) (―The district courts shall have jurisdiction . . .
24 to order the Administrator to perform such act or duty . . . .). Here, Plaintiffs contend that each of
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Ecology’s Director had changed between September 2012 and June 2013.

1 these communications constitutes a § 1313(c)(4)(B) determination and thus triggered the
2 Administrator’s nondiscretionary duty to promptly propose rules. (Pl. Resp. at 2–3; Dkt. No. 55
3 at 6–7, n.1.) The Court disagrees.
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First, these determinations were not made by the Administrator. The court in

5 CORALations v. United States Envtl. Prot. Agency, 477 F.Supp.2d 413 (D. Puerto Rico 2007),
6 considered a related question.2 In that case, Puerto Rico submitted water-quality standards for
7 review.3 The Region’s Water Management Division director sent a letter disapproving certain
8 standards. (Dkt. No. 28, Ex. A at 10.) The EPA argued that only the Acting Regional
9 Administrator could disapprove standards, see 40 C.F.R. § 131.22(a) (2003), so this letter from a
10 ―staff-level‖ employee did not constitute a communication from the ―Administrator‖ for
11 purposes of 33 U.S.C. § 1313. The court recognized ―that case law regarding approval by a
12 subordinate without the specific delegation of power is uncommon.‖ (Id. at 10.) Even so, the
13 court concluded that the tone and the wording of the communications meant that the letter-writer
14 was representing the Administrator and the letter therefore triggered the EPA’s duty to publish
15 revised standards. (Id.) In a related order denying a motion to dismiss, the court concluded that
16 the term ―Administrator‖ was not intended to have a strict application and that discovery was
17 necessary to determine whether the duty was delegated. (Dkt. No. 28, Ex. B.) The CORALations
18 order also pointed to Idaho Conservation League v. Browner, 968 F. Supp. 546 (W.D. Wash.
19 1997), in which the EPA had stipulated to the fact that a letter from the Acting Director Office of
20 Water constituted final disapproval under § 1313(c)(3). Idaho Conservation League, 968 F.
21 Supp. at 548 (letter explicitly stated that it was an ―official notification‖).
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The court issued several orders in that case, two of which were referred to in the
24 published opinion and provided with Plaintiffs’ summary-judgment motion. (Dkt. No. 28, Exs.
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The parties disputed whether Puerto Rico should be deemed to have formally submitted
26 revisions to the EPA. (Dkt. No. 28, Ex. A at 8.) The Court concluded that Puerto Rico’s letter
was a formal submission, so that aspect of its analysis is irrelevant here.

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Plaintiffs rely heavily on these cases. The CORALations court, however, was considering

2 the issue from the standpoint of analyzing the significance of a letter written in response to
3 submitted standards. CORALations, 477 F.Supp.2d at 417–18 (Dkt. No. 28, Ex. A.) There are
4 several reasons to apply different reasoning in evaluating the EPA’s duty under § 1313(c)(4)(B).
5 First, under 33 U.S.C. §§ 1313(c)(3) and (c)(4)(A), the Administrator has a mandatory duty
6 either to approve or disapprove the standards that a state has submitted to the EPA. The power to
7 do so has been delegated by the EPA Administrator to the Regional Administrators for each of
8 the EPA Regions. See EPA Delegations Manual, section 2-10, (Dkt. No. 49, Ex. A); 40 C.F.R. §
9 131.20 (requiring the State to submit the results of the review ―to the Regional Administrator for
10 review and approval‖); 40 C.F.R. § 131.21(b) (describing ―[t]he Regional Administrator’s
11 approval or disapproval of a State water quality standard‖). By contrast, the relevant power under
12 § 1313(c)(4)(B) is a discretionary power to determine sua sponte that a new or revised standard
13 is required. See, e.g., Northwest Envtl. Advocates v. United States Envtl. Prot. Agency, 268
14 F.Supp.2d 1255 (D. Or. 2003) (Oregon never submitted a revised temperature criterion so the
15 EPA had no mandatory duty but instead had discretion to decide whether to review the existing
16 standard under 33 U.S.C. § 1313(c)(4)(B)); 40 C.F.R. § 131.22(a)–(b) (using ―may‖ as opposed
17 to ―shall‖ in describing power to make sua sponte determination). This discretionary power has
18 not been delegated to the Regional Administrators nor has it been frequently exercised. See 40
19 C.F.R. § 131.22(a)–(b) (Regional Administrator disapproves proposed changes under §
20 131.22(a), but only the Administrator may propose a regulation ―upon determining such a
21 standard is necessary to meet the requirements of the Act‖). There have been occasions when the
22 power has been delegated, but the Administrator has done so clearly and explicitly. (Dkt. No. 48,
23 Ex. 2, Exhibits; Dkt. No. 57 at 5–6.)
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Moreover, even assuming that the tone of the letters can indicate whether they were

25 meant as official determinations, the letters in this case evince no such intent. These
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1 process—a fact that is particularly significant against the backdrop of discretion inherent in
2 deciding whether to make a determination under § 1313(c)(4)(B). They clearly intend to offer
3 guidance to the state during the state’s revision process, and the only mention of the relevant
4 statute is in the context of not invoking any statutory power. (Dkt. No. 29, Ex. I.) Plaintiff argues
5 that interpreting the letters in this manner means that the EPA can ―effectively excuse itself from
6 its mandatory obligations to promulgate a standard.‖ (Pl. Resp. at 8; Dkt. No. 55 at 12.) But there
7 is no mandatory obligation until a determination has been made, and the EPA’s ability to ―excuse
8 itself‖ is inherent in the discretion to decline to make a determination.
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Also significant is that neither the letters nor the Plaintiffs identify specific water-quality

10 standards that are deficient. The fish-consumption standard undeniably implicates certain human
11 health criteria and certain water-quality standards. Yet the communications identify no ―revised
12 or new water quality standard,‖ reinforcing the conclusion that these are not official
13 determinations regarding the standards for purposes of 33 U.S.C. § 1313(c)(4)(B). Indeed,
14 although Plaintiffs emphasize that it is not ―likely [that] EPA is confused about what human
15 health criteria are based on the health consumption rate,‖ at no point do Plaintiffs actually
16 identify the specific water-quality standards about which EPA has allegedly made a statutory
17 determination.4
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Finally, even assuming that a determination has been made, the Court disagrees with

19 Plaintiffs’ characterization that there has been a delay of over three years such that the EPA has
20 failed to act ―promptly.‖ The only letter mentioning the relevant statutory provision is the June
21 2013 letter. Even assuming that this letter constituted a statutorily relevant determination,
22 Plaintiffs cite no authority—nor has this Court found any—suggesting that failing to propose
23 standards within four months of that determination would necessarily be failing to act
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Plaintiff briefly suggests in reply that ―[t]he fish consumption rate itself is a water
26 quality standard subject to EPA disapproval,‖ but the supporting reasoning recognizes that it is a
―use‖ and a ―necessary component.‖ (Dkt. No. 55 at 9.)
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1 ―promptly.‖5 (Dkt. No. 28 at 19–21 (citing caselaw suggesting that delays ranging from nineteen
2 months to three years were not acting promptly)). Absent a failure to promptly propose
3 regulations, the EPA has shirked no mandatory duty and this Court lacks jurisdiction.
4 III.

CONCLUSION

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For the foregoing reasons, the Court DENIES Plaintiff’s motion (Dkt. No. 28) and

6 GRANTS Defendant’s motion (Dkt. No. 48). This matter is DISMISSED without prejudice for
7 lack of subject matter jurisdiction.
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DATED this 18th day of September 2014.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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It is well-established that jurisdiction is determined at the time a complaint is filed. See,
26 e.g., Chesapeake Bay Foundation, 769 F.2d 207 (4th Cir. 1985) (jurisdiction determined at time
of complaint).
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