Plaintiffs, Pennsylvania Municipal Authorities Association ("PMAA"), Tennessee Municipal League ("TML"), and The City of Little Rock Sanitary Sewer Committee ("Little Rock"), and plaintiff-intervenor, The Association of Metropolitan Sewerage Agencies ("AMSA"), bring this action against defendants Marianne Lamont Horinko, Acting Administrator of the United States Environmental Protection Agency ("EPA"), Donald S. Welsh, EPA Regional Administrator of Region III, J.I. Palmer, Jr., EPA Regional Administrator of Region IV, and Gregg Cooke, EPA Regional Administrator of Region VI claiming that the administrators of EPA Regions III, IV and VI have acted in excess of their authority under the Clean Water Act, 33 U.S.C. §§ 1251-1387. Plaintiffs maintain that the Regional Administrators, without opportunity for notice and comment, have issued guidance documents pertinent to certain water treatment and discharge processes which set more restrictive standards than required by the CWA or national rules promulgated by EPA. Plaintiffs contend that this violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., and seek declaratory and injunctive relief.
Before this court is defendants' motion to dismiss [#17] and plaintiffs' motion for a preliminary injunction and expedited hearing [#51]. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendants' motion to dismiss must be granted because this court lacks subject matter jurisdiction of this action.
In passing the Federal Water Pollution Control Act ("Clean Water Act" or"CWA"), 33 U.S.C. §§ 1251-1387, Congress established a comprehensive regulatory scheme to control the discharge of waste and pollutants into the nation's navigable waters. The Act's objective is to"restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. The Act makes unlawful any pollutant discharges into navigable waters, except as authorized by other provisions of the CWA, 33 U.S.C. §§ 1311(a), 1342, and requires the promulgation of effluent limitations which set the maximum allowable quantities, rates and concentrations of different pollutants that"point sources" may discharge into waters. 33 U.S.C. § 1362(11). Point sources are simply"any discernible, confined and discrete conveyance... from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).
The EPA enforces the CWA through the National Pollutant Discharge Elimination System ("NPDES"). Under this system, the EPA has the discretion to issue permits for the discharge of otherwise prohibited pollutants, after a public hearing and subject to conditions set by the Administrator. 33 U.S.C. § 1342(a)(1). The Administrator may also authorize states to establish their own permit programs, which must conform with federal requirements. See 33 U.S.C. §§ 1314(i), 1342(b). EPA has authorized forty-five states, including the states where plaintiffs are located, to issue permits. Permits in the remaining states are issued by EPA itself. Authorized states must issue NPDES permits in accord with the provisions of the CWA and are subject to EPA oversight. 33 U.S.C. § 1342(b)-(c). Specifically, within ninety days after a state issues an NPDES permit, the EPA Administrator, or EPA regional administrator, may object in writing to an issued permit, rendering it invalid. See 33 U.S.C. § 1342(d)(2); 40 C.F.R § 123.44. Under the Clean Water Act's judicial review provision, parties affected by EPA actions may appeal to the Circuit Courts of Appeals.*fn1
Plaintiffs represent, in total, hundreds of municipalities holding NPDES permits for their public-owned treatment works ("POTWs"). EPA regulations define POTWs as"any devices and systems used in the storage, treatment, recycling and reclamation of municpal sewage or industrial wastes of a liquid nature." 40 C.F.R. § 403.3(o). Plaintiffs claim that the regional EPA administrators have imposed restrictions and limitations on NPDES permitting not mandated by the provisions of the CWA and in contravention of"long-standing" national EPA rules.
Specifically, they assert that the EPA regional administrators have put limits on various processes in various policy statements that are contrary to those indicated in existing national policy statements or rules, without any opportunity for notice and comment. The policy statements pertain to three different practices that are at issue in this case: "blending," emergency sanitary sewer overflows discharges, and the application of secondary treatment to emergency overflows. A."Blending" and"Bypass"
First, plaintiffs allege that EPA Regions III, IV and VI, contrary to national EPA rules, prohibit"blending." Compl. at 29-39. They define"blending" (also"slip-streaming" or"recombination") as a practice used when peak wet weather flows ( e.g., from floods or massive rainfall) exceed the capacity of a treatment unit, and as a result, permittees route excess flows around the unit and mix or recombine them with treated waters. The combined waters, at the point of final discharge into navigable waters, ideally meet the effluent limitations contained in a given permit.
Defendants indicate that"blending" is not a term contained in the CWA or NPDES regulations but instead implicates a practice called"bypass." EPA regulations generally prohibit bypass, but a given bypass may be approved if it does not result in effluent limitations being exceeded and if it is essential for efficient operation. 40 C.F.R §§ 122.41(m)(2), (4). In addition, EPA may not bring an enforcement action if a bypass is (1) unavoidable to prevent death, personal injury, or severe property damage; (2) necessary for lack of feasible alternatives; and (3) is preceded by advance notice. 40 C.F.R § 122.41(m)(4). Furthermore, EPA regulations provide for an"upset" defense, which excuses noncompliance with effluent limitations by permittees because of exceptional incidents leading to unintentional and temporary effluent discharges. 40 C.F.R. § 122.41(n)(1).
Plaintiffs claim that EPA has had a long-standing policy that it would not dictate the precise processes to be used, so long as the POTWs meet their effluent limitations:"No final EPA rule or Headquarters policy requires that in order for a POTW to legally blend, blending must be specifically referenced in the permit." Compl. at 14. Plaintiffs argue that without recourse to blending, POTWs must force all waters to flow through the treatment facilities, which will in turn compromise the effectiveness of the treatment units and may make them exceed their effluent limitations. According to plaintiffs, the prohibition by regional EPA administrators on bypass and other similar processes changes would require prohibitively expensive changes to the design of treatment plants. Id. at 27 (estimating total costs of over $200 million for named plaintiffs, and billions of dollars for all POTWs nationwide, to conform with a complete ban on blending).
B. Sanitary Sewer Overflow Discharges
Second, plaintiffs claim that EPA Regions III and IV, contrary to national EPA rules, refuse to permit emergency sanitary sewer overflow ("SSO") discharges. Plaintiffs define"emergency outflows" as discharges from sanitary sewer overflow points–places where sewage is collected ( e.g., a pump station) before entering a treatment works. Generally, the CWA prohibits non-emergency SSO discharges. Emergency outfalls, like"blending," are said to be needed in times of high precipitation, when a POTW's treatment facilities are overtaxed or overflowing. As a result, plaintiffs claim, emergency discharges should be allowed under the bypass and upset defenses. Plaintiffs assert, however, that EPA Regions III and IV have prohibited the permitting of outfalls entirely, meaning that the bypass and upset defenses are not available at all, and that even emergency SSO discharges would subject plaintiffs to liability. Plaintiffs argue that such rules are ultra vires, and that the national EPA regulations do not prohibit emergency outfalls. Defendants, for their part, assert that"emergency outfall," like"blending," is not a term recognized by the EPA.
Finally, plaintiffs claim that EPA Regions III and IV have, contrary to EPA regulations, established"secondary treatment" as the technology-based standard for SSO discharges to be permittable. This allegation is a corollary to the previous claim–since EPA Regions III and IV do not permit emergency SSO overflows (of untreated effluent), SSO discharges must receive some sort of treatment. Plaintiffs concede that EPA regulations require that"secondary treatment" standards apply to discharges from treatment plants themselves. However, they claim that sewage overflow points are not part of treatment works and that SSOs are not subject to"secondary treatment." Id.
All of these alleged prohibitions and ultra vires regulations, according to plaintiffs, appeared in the form of dictates by regional administrators for EPA Regions III, IV and VI. In addition, other EPA Regions (II, V, VII, and IX) have explicitly approved of blending. Furthermore, departments within the national EPA disagree over the legality of blending and emergency outfalls. See Pls.' Ex. 21 (Letter from Tinka G. Hyde, Acting Direct of EPA Water Division) (indicating EPA's Office of General Counsel, Office of Water and Office of Wastewater Management agreement that permits could, under certain circumstances, authorize re-routing or recombination"without... being consider a'bypass'"); Pls.' Ex. 52 (email from Kevin Weiss, EPA Office of Wastewater Management, Apr. 16, 2001) (indicating that Office of Enforcement and Compliance Assurance intended to oppose the view of other departments on blending). Plaintiffs argue that the long-standing position of EPA Headquarters is that all of these processes are allowable.*fn2 See Compl. at 24-27 (alleging that national EPA guidelines allow blending); 42 (claiming that national EPA rules have never prohibited permitting of emergency outflows); 46 (asserting that national EPA rules apply a"best available technology" or"best conventional pollutant control technology," to SSOs and that in 2000, non-binding EPA guidelines began to apply secondary treatment standards to SSOs). The national EPA is aware of the conflict between different Regions on blending and SSOs and has agreed that blending and emergency outfalls can be permitted. Compl. at 48 (noting that plaintiffs have met with EPA Headquarters over the last three years, and that EPA Headquarters has"consistently agreed" that blending and emergency outflows can be permitted under NPDES). However, plaintiffs claim that EPA Headquarters has done nothing to prevent Regions III, IV and VI from prohibiting blending and emergency outfalls.
For the most part, in representing hundreds of POTWs and municipalities, plaintiffs allege prospective harms. See Compl. at 6 ("Failure of PMAA members to adjust their conduct to the mandates of EPA Region III will have legal consequences."), 8 ("SSO discharges by TML members will need to be eliminated"), 9 ("Little Rock will need to expend significant sums in order to eliminate blending"). However, some municipalities have faced real, concrete harms. Specifically, some states have refused to reissue permits in order to comply with the EPA regional guidance documents banning blending.*fn3 Other states, also following regional EPA documents, have included the prohibitions on blending in their NPDES permits when such bans did not exist before.*fn4 Finally, in some instances, EPA regions have intervened directly and objected to state-issued permits that allowed blending.*fn5 These permitting decisions all involved blending, not emergency outflows or secondary treatment applied to SSO discharges. Plaintiffs do not indicate how many POTWs face concrete action by state permitting agencies or EPA Regional administrators.
Plaintiffs suggest that the court should address their preliminary injunction before resolving defendants' jurisdictional arguments, which they claim"have nothing to do" with the substantive claims contained in the motion for preliminary injunction. Despite its asserted urgency, however, plaintiffs' preliminary injunction motion does not take priority over defendants' motion to dismiss for lack of jurisdiction. Jurisdiction, of course, is a threshold matter; without it, this court has no authority to decide other potentially dispositive issues in this case. See Ticor Title Ins. Co. v. FTC, 814 F.2d 731, 757 (D.C. Cir. 1987) (Green, J., concurring) (holding that"lower courts must always wrestle with [jurisdictional issues] before reaching any questions of justiciability, since courts may not decide issues over which they lack jurisdiction"); Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981) ("The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds."); Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 91 (D.D.C. 2000) ("The court must address the issue of jurisdiction as a threshold matter, because absent jurisdiction the court lacks the authority to decide the case on any other grounds."). Therefore, the court must consider jurisdictional issues raised by defendants before considering plaintiff's preliminary injunction.
A. Motion to Dismiss Standard
A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) should not prevail"unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999). At the stage of litigation when dismissal is sought, the plaintiffs' complaint must be construed liberally, and the plaintiffs should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). However, unlike the limited matters that appropriately can be considered when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), in resolving a motion to dismiss under Rule 12(b)(1), a court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case. Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ...