The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court are plaintiff's and defendants' motions for summary judgment, and defendants' motion for reconsideration of the Court's denial of defendants' motion to dismiss the complaint. Plaintiff brings this action to challenge the Environmental Protection Agency's ("EPA") handling of the permitting process for a pulp and paper mill operated by Buckeye Florida, LLP, (the "Buckeye Mill"). All of the motions center on the same purely legal issue: whether this Court can direct the EPA to exercise or assume jurisdiction over the permit application for Buckeye Mill. Upon consideration of the parties' motions, the responses and replies thereto, the arguments presented at the hearing on January 16, 2007, the applicable law, and the entire record, the Court determines that it lacks jurisdiction over plaintiff's claims. Therefore, for the reasons stated herein, plaintiff's Motion for Summary Judgment is DENIED, defendants' Motion for Summary Judgment is GRANTED, and defendants' Motion for Reconsideration is DENIED as moot.
This case involves a state permit proceeding for a National Pollutant Discharge Elimination System ("NPDES") permit for the Buckeye Mill, which is located on the Fenholloway River in Perry, Florida. The facility discharges wastewater into the Fenholloway River, and is therefore required pursuant to section 402 of the Clean Water Act ("CWA") to obtain an NPDES permit. Since 1995, the state of Florida has had an NPDES program approved by EPA, which is administered by the Florida Department of Environmental Protection ("FDEP"). While the state now possesses the primary authority to issue NPDES permits, EPA retains oversight of the permitting process.
The permit proceeding at issue in this case was initiated on May 25, 1995, when Buckeye submitted an application to renew its state industrial wastewater discharge permit. On October 23, 1997, FDEP issued a proposed permit based on Buckeye's permit application. Buckeye proposed and FDEP approved a scheme for Buckeye to build a 15-mile pipeline to carry the discharge downstream and dump it into the Fenholloway estuary.*fn1 Pursuant to its oversight authority under CWA section 402(d), EPA objected to the proposed permit on March 26, 1998. On June 23, 1998, FDEP and Buckeye requested that EPA hold a public hearing on EPA's objections, as provided by CWA section 402(d)(4) and 40 C.F.R. § 123.44(e). Following litigation in this Court, see American Canoe Association v. EPA, No. 00-2827-EGS, EPA convened the hearing regarding its objections on April 22, 2004, in accordance with a settlement agreement between the parties.
By letter dated January 3, 2005, EPA notified FDEP of its determination regarding each of EPA's 1998 objections in light of the information presented at the objections hearing and other information in the record. Specifically, EPA modified one of the objections, withdrew one of the objections, and reaffirmed the four remaining objections. EPA also notified FDEP that pursuant to 40 C.F.R. § 123.44(h)(2), FDEP was required to submit a revised permit that satisfied each of EPA's objections within 30 days of the determination or exclusive authority to issue the permit would pass to EPA.
On February 2, 2005, after plaintiff filed its initial complaint in this case, but within the time provided under 40 C.F.R. § 123.44(h)(2) to address EPA's objections, FDEP submitted a revised proposed permit to EPA. EPA subsequently notified FDEP that "since the February 2, 2005 revised permit was timely submitted, and addressed all outstanding objections raised by EPA, exclusive jurisdictional authority for the Buckeye permit continues to reside with the FDEP and does not pass to EPA."
Plaintiff filed this case in January 2005 to challenge the EPA's handling of the Buckeye Mill permitting process. Plaintiff seeks to force the EPA to assume jurisdiction over the permitting process, instead of leaving it to FDEP. Defendants filed a motion to dismiss for lack of jurisdiction. After a hearing in March 2006, the Court issued an order that denied the motion to dismiss and directed the parties to file and brief motions for summary judgment. Defendants filed a motion for reconsideration of the Court's denial of the motion to dismiss and both parties filed motions for summary judgment.
Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.
Plaintiff brings this suit under the citizen-suit provision of the CWA. Defendants contend that this Court lacks subject matter jurisdiction over the suit because it is barred by sovereign immunity. The citizen-suit provision of the CWA provides a limited waiver of sovereign immunity for claims "where there is alleged a failure of the [EPA] Administrator to perform any act or duty under the this chapter which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2) (emphasis added); see Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1128 (D.C. Cir. 1997). Thus, the Court only has jurisdiction if EPA has an unfulfilled, non-discretionary duty under the CWA. Plaintiff argues that CWA section 402(d)(4), EPA's implementing regulations, and/or Florida's implementing regulations create a non-discretionary duty for EPA to assume jurisdiction over the Buckeye Mill permit. Therefore, the key question is whether, in fact, the CWA, EPA's regulations, or Florida's regulations create any tangible duty or proscribe any act that EPA must perform in this situation.
I. Duty Derived from the CWA
The CWA provision at issue is section 402(d)(4), ...