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KINGMAN PARK CIVIC ASS'N v. U.S.E.P.A.

August 31, 1999

KINGMAN PARK CIVIC ASSOCIATION, ET AL., PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kollar-kotelly, District Judge.

MEMORANDUM OPINION

More than eighteen years after its first TMDL submission was due, the District of Columbia had yet to forward a single TMDL calculation to the EPA. Arguing that nearly two decades of silence and inaction from the District constitute a "constructive submission" that no TMDLs are necessary, Plaintiffs Kingman Park Civic Association and other organizations and individuals have brought suit under the CWA's citizen-suit provision, CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2), to compel the Administrator to disapprove the District's "submissions," and to order the Administrator to establish TMDLs for the District's polluted waters. In moving to dismiss the Plaintiffs' Amended Complaint, EPA presents a narrow issue: whether the District's eighteen-year recalcitrance constitutes a submission that triggers the Administrator's nondiscretionary duty under § 303(d)(2). After careful consideration, the Court holds that a state's consistent, longstanding failure to submit TMDL calculations can be construed as a submission that calls forth the Administrator's nondiscretionary duties under § 303(d)(2).

I. BACKGROUND

With its passage, the CWA "marked the ascendancy of water-quality control to the status of a major national priority," Monongahela Power Co. v. Marsh, 809 F.2d 41, 45-46 (D.C.Cir. 1987). Its intricate structure and rich history have received exhaustive attention from many federal courts during the past quarter century, and need not be revisited here. See, e.g., Arkansas v. Oklahoma, 503 U.S. 91, 104-07, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 116-21, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202-09, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 287-98 (D.C.Cir. 1981). Only the CWA's specific provisions at issue in this litigation require brief explication.

The CWA employs a variety of interrelated procedures to regulate water pollution. Among these, the National Pollutant Discharge Elimination System ("NPDES"), 33 U.S.C. § 1342, represents the CWA's primary mechanism for achieving and enforcing water-quality standards. Reduced to its essence, this regime prohibits discharges of pollutants from any "point source" — a discernable, confined, and discrete conveyance from which pollutants may be discharged — into the waters of the United States except as provided in an NPDES permit. See id. §§ 1311(a), 1362(12), (14).

For each WQLS identified in the 303(d) list, a state must establish a Total Maximum Daily Loads ("TMDLs") consistent with the priority ranking set forth in the 303(d) list. TMDLs "set the maximum amount of a pollutant which can be contributed into a stream segment without causing a violation of the water quality standards." EDF, 657 F.2d at 294. By statute and regulation, the TMDL calculation 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." CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C); see also 40 C.F.R. § 130.7(c)(1)(ii).

So important is Section 303(d) to the CWA's overall structure that Congress compelled both the states and EPA to abide by strict, date-certain deadlines for submitting and implementing TMDLs. Within 180 days from the date that EPA first identified certain pollutants, see CWA § 304, 33 U.S.C. § 1314, each state was bound by statute to submit its WQLSs and corresponding TMDLs. Once each state submitted these TMDL calculations, the statute obliged EPA either to approve or to disapprove the TMDL. If approved, the TMDL is incorporated into the state's water-quality management plans under Section 303(e). In the event that EPA disapproves the state's TMDL submission, however, the agency inherits a nondiscretionary duty to establish acceptable TMDL calculations within thirty days from the date of disapproval; the EPA's TMDL is then incorporated into the state's Section 303(e) plan. See CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).

Because EPA neglected to promulgate its list of identified pollutants until December 28, 1978, 43 Fed.Reg. 60662 (1978), "the states' duty to submit TMDL calculations . . . did not arise until June 28, 1979," EDF, 657 F.2d at 295; see also CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).*fn1 From 1979 until 1994, the District of Columbia's response to its Section 303(d) obligations was absolute silence and intransigence. During that fifteen-year span, the District failed to submit a list of WQLSs, much less a single TMDL calculation. Not until 1994 did the District finally comply with its statutory duty under the CWA to submit a 303(d) list of WQLSs. It has since updated its list every two years as required by EPA regulations, albeit late each time. Yet, notwithstanding this modest and belated compliance, the District continued to ignore its TMDL obligations. More than 18 years after the District's duty to submit its first TMDL calculation ripened, it had not yet offered any TMDL to EPA for review. Not until January 1998 — four months after Plaintiffs served their notice of intent to file this lawsuit — did the District submit a TMDL for Hickey Run, one of its 38 identified WQLSs. EPA subsequently informed the District that its Hickey Run TMDL was inadequate.

While the District has neglected its obligations under Section 303(d) for almost two decades, its waters have grown increasingly polluted. Today, sewage discharges into District waters contain unsafe levels of fecal coliform bacteria. In some cases, this fecal coliform bacteria exist in levels a thousand times greater than the maximum safe-level for swimming. See District of Columbia Consumer and Regulatory Affairs, Environmental Regulation Admin., The District of Columbia Water Quality Assessment at 211 (1996) [hereinafter Water Quality Assessment] (Pls.' Exs. C & E). Beyond fecal coliform, District waters boast unhealthy amounts of toxics, organic compounds, pathogens, bacteria, metals, nutrients, and oil and grease to name a few. Toxic pollutants have accumulated in sediments, are ingested by fish, and are ultimately ingested by District residents, who may, according to some studies, face an increased risk of cancer. See D. Velinsky & J. Cummins, Distribution of Chemical Contaminants in Wild Fish Species in Washington, D.C., ICPRB Rep. No. 94-1 (June 1994), at 62-67 (Pls.' Ex. D) D.C. Commissioner of Public Health Urges Limited Consumption of Fish Caught in D.C. Waters, D.C. Gov't News Release, Nov. 15, 1994 (Pls.' Ex. E); Water Quality Standards, supra, at 202-09. Recently, the Anacostia River has been bestowed with the dubious distinction of being one of the ten most polluted rivers in the country. See id. at 85.*fn2

Plaintiffs filed this lawsuit under the CWA's citizen-suit provision, § 505(a)(2), 33 U.S.C. § 1365(a)(2), and the Administrative Procedure Act, § 10(e), 5 U.S.C. § 706(1)-(2), to compel the EPA to establish TMDLs for the District's WQLSs. EPA has moved to dismiss, maintaining that neither the CWA nor the APA affords the Plaintiffs a mechanism to compel the agency to take action at this time.*fn3

II. DISCUSSION

  A. Subject-matter jurisdiction is proper to compel EPA to
    perform a ...

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