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National Mining Association, et al v. Lisa Jackson

July 31, 2012

NATIONAL MINING ASSOCIATION, ET AL., PLAINTIFFS,
v.
LISA JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
DEFENDANTS, AND, SIERRA CLUB, ET AL., DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This case is before the Court on the parties' cross-motions for partial summary judgment regarding the Final Guidance memorandum issued by the Environmental Protection Agency ("EPA") on July 21, 2011.*fn1 See Plaintiffs' Motion for Partial Summary Judgment ("Pls.' Mot."); United States' Motion for Partial Summary Judgment ("Defs.' Mot."). The Court heard oral argument on the motions on July 13, 2012. For the reasons that follow, the plaintiffs' motion will be granted and the defendants' motion will be denied.*fn2

I. STATUTORY AND REGULATORY BACKGROUND

A. The Surface Mining Control and Reclamation Act "The Surface Mining Control and Reclamation Act embodies Congress' recognition that 'the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment . . . ." In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 516 & 516, n.1 (D.C. Cir. 1981) ("In re PSMRL") (citing 30 U.S.C. § 1201). Accordingly, the SMCRA requires those engaging in surface coal mining operations to comply with permitting requirements and environmental protection standards. 30 U.S.C. §§ 1202, 1256-1266 (2006). The SMCRA is administered and enforced by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement ("Office of Surface Mining"), 30 U.S.C. § 1211(c)(1), but a state may assume primary jurisdiction over the regulation of surface mining within its borders by having its proposed program approved by the Secretary of the Interior,*fn3 30 U.S.C. § 1253. Pursuant to the SMCRA, before approving a state program the Secretary must solicit and then publicly disclose the views of certain federal agencies regarding the state regulatory program and must obtain the written concurrence of the EPA with respect to the aspects of the state program that relate to water quality standards promulgated under the Clean Water Act, 33 U.S.C. § 1313 (2006). 30 U.S.C. § 1253(b). Once a state program is approved, the state has the primary responsibility for all aspects of the regulatory program. See In re PSMRL, 653 F.2d at 516 ("The Secretary may only approve the state program if he finds it capable of carrying out the exacting provisions of the [SMCRA] and consistent with his own regulations."); id. at 518 ("Under a state program, the state makes decisions applying the national requirements of the [SMCRA] to the particular local conditions of the state. The Secretary is initially to decide whether the proposed state program is capable of carrying out the provisions of the [SMRCA], but is not directly involved in local decisionmaking after the program has been approved.").

The statute provides only a limited role for the EPA. First, the SMCRA requires the Secretary of the Interior to obtain the EPA's written concurrence on any SMCRA-implementing regulations that relate to air or water quality standards. Second, as noted, the Office of Surface Mining may not approve a proposed state program until it has solicited and publicly disclosed the EPA's views and obtained the EPA's written concurrence as to any aspects of the state program that relate to water quality standards promulgated under the CWA. In short, although the SMCRA explicitly conveys Congress's admonition that the EPA cooperate with the Office of Surface Mining to the greatest extent practicable, 30 U.S.C. § 1292, it is clear that oversight authority of the state permitting authorities belongs to the Secretary of the Interior. See In re PSMRL, 653 F.2d at 519 ("The Secretary's ultimate power over lax state enforcement is set out in section 521(b) of the [SMCRA]. When the Secretary determines that violations result from a state's lack of intent or capability to enforce the state program, he is to enforce permit conditions directly, and to take over the entire permit-issuing process himself."); see also id. ("Once the State has assumed all these functions, the Secretary's role is primarily one of oversight."); id. at 520 ("Direct intervention by the Secretary in the operation of state regulatory programs is clearly intended as an extraordinary remedy.") And of significant importance, the SMCRA does not supersede the Clean Water Act. See 30 U.S.C. § 1292.

B. The Clean Water Act

The CWA establishes a permitting scheme for pollutants discharged into bodies of water, and coal mining operations typically must obtain both CWA permits and SMCRA permits.

1. Section 404 Permits

Clean Water Act Section 404 permits are issued by the United States Army Corps of Engineers ("Corps") "for the discharge of dredged and fill material into navigable waters at specific disposal sites," 33 U.S.C. § 1344(a), and govern material that fills or displaces receiving waters. The Corps has sole authority to issue Section 404 permits, id., but in doing so must apply guidelines that it develops in conjunction with the EPA, id. § 1344(b). As required by the Clean Water Act, id., the EPA and the Corps promulgated 404(b)(1) guidelines to guide the Corps' review of the environmental effects of proposed disposal sites.*fn4

2. Section 402 Permits

Known as National Pollutant Discharge Elimination System ("NPDES") permits, Section 402 permits are typically issued by states for the discharge of all other pollutants not covered by Section 404 permits (i.e., non-dredged or fill material). See 33 U.S.C. § 1342(a). NPDES permits govern pollutants that are assimilated by receiving waters by establishing limits placed on the make-up of wastewater discharge. See 33 U.S.C. § 1342.

Section 402 permits are issued by the EPA, unless a state has an approved program.*fn5 See id. § 1342(b). Once the EPA approves a state permitting program, the state has exclusive authority to issue NPDES permits, although the EPA does have limited authority to review the state action. Id. § 1342(d). For example, the state must submit draft permits to the EPA, and the EPA may object to a proposed permit that is not consistent with the CWA or federal regulations. Id. If the state does not respond to an EPA objection to a permit within specified timeframes, the EPA assumes the authority to issue the permit. See id. § 1342(d)(4). If the EPA does not object to the issuance of a permit within the specified timeframe, the state may proceed to issue the permit. Id. § 1342(d)(2).

a. The Relationship Between Section 301 Effluent Limits and Section 402 Permits

In accordance with Section 301 of the CWA, 33 U.S.C. § 1313, NPDES permits "typically contain numerical limits called 'effluent limitations'*fn6 that restrict the amounts of specified pollutants that may be discharged." Defs.' Mem. at 9. "Water quality based effluent limitations are required for all pollutants that the permitting authority determines 'are or may be discharged at a level [that] will cause, have the reasonable potential to cause, or contribute to an excursion above any [applicable] water quality standard, including state narrative criteria for water quality.'" Id. (quoting 40 C.F.R. § 122.44(d)(1)(i)). Accordingly, the procedure for determining the need for effluent limits is called a reasonable potential analysis. If the discharge does have the reasonable potential to cause an excursion*fn7 above a numeric or narrative water quality standard set in accordance with Section 303 of the CWA, the state must develop permit limitations to ensure compliance with that water quality standard. See Am. Paper Inst. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (explaining that Section 301 of the CWA, 33 U.S.C. § 1311, requires that "every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls, and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet water quality standards") (citing 33 U.S.C. § 1311(b)(1)(A) & (C)). To achieve this compliance, the states may establish either numeric or narrative permit limits. See id. (noting that criteria come in "two varieties: specific numeric limitations on the concentration of a specific pollutant in the water . . . or more general narrative statements applicable to a wide set of pollutants").

3. Section 303 Water Quality Standards

Section 303 "requires states to adopt water quality standards applicable to their intrastate and interstate waters." Defs.' Mem. at 8 (citing 33 U.S.C. § 1313(a)-(c); see also Am. Paper. Inst., 996 F.2d at 349 ("Under the CWA, the water quality standards referred to in section 301 [and which the Section 301 effluent limitations are intended to protect] are primarily the states' handiwork."); id. at 350 ("Of course, the [section 303] water quality standards by themselves have no effect on pollution; the rubber hits the road when the state-created standards are used as the basis for specific [section 301] effluent limitations in NPDES permits [i.e., Section 402 permits]."). A water quality standard designates uses for a particular body of water and establishes criteria for protecting those uses. As already noted, Section 303 water quality standards can be expressed as a specific numeric limitation on pollutants or as a general narrative statement.

While states are responsible for developing the water quality standards, the EPA is required to review the standards for approval. See 33 U.S.C. § 1313(c). The EPA may assume the role of actually promulgating water quality standards only if (1) it determines that a state's proposed new or revised standard does not measure up to the Clean Water Act's requirements and the state refuses to accept EPA-proposed revisions, or (2) a state does not act, and the EPA determines that a new or revised standard is necessary. See Am. Paper Inst., 996 F.2d at 349 (citing 33 U.S.C. § 1313(c)(3)-(4)).

II. FACTUAL BACKGROUND AND THE PARTIES' ARGUMENTS

In April 2010, the EPA released its "interim" guidance memorandum. In seeking a preliminary injunction from this Court in September 2010, the plaintiffs asserted that the EPA had made sweeping pronouncements regarding the need for water quality-based limits in CWA Section 402 and 404 permits. The plaintiffs maintained that the interim guidance had (1) effectively established a region-wide water quality standard based on conductivity*fn8 levels it associated with adverse impacts to water quality, (2) was being used by the EPA to cause indefinite delays in the permitting process, and (3) caused various permitting authorities to include the conductivity level into pending permits. See Pls.' Mem. at 14-16. The defendants responded by arguing that the interim guidance was not final agency action and was therefore not ripe for review. In an opinion denying both the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss, the Court observed that "based on the record [then] before the Court . . . , it appear[ed] that the EPA [wa]s treating the [interim] [g]uidance as binding." Nat'l Mining Ass'n I, 768 F. Supp. 2d at 45.

On July 21, 2011, the EPA issued the Final Guidance, which, according to the EPA, reflects public input on the interim guidance and accounts for and responds to key concerns raised by the Appalachian states and the mining industry during the earlier stages of this litigation. Defs.' Mem. at 1-2. The plaintiffs, however, allege that the EPA's Final Guidance exceeds the EPA's authority under the SMCRA and the CWA, is arbitrary and capricious, and is an abuse of discretion. See Pls.' Mem. at 1-2. The defendants' principal response is a bevy of arguments targeting the Court's ability to review the Final Guidance. They assert that the Final Guidance is not final agency action, Defs.' Mem. at 13; that the Final Guidance is not ripe for review, id. at 24; and that the plaintiffs do not have standing to maintain their challenges to the Final Guidance, id. at 26. Alternatively, the defendants maintain that if the Final Guidance does constitute final agency action, 33 U.S.C. §1369(b)(1) vests exclusive jurisdiction of its review in the District of Columbia Circuit. Id. at 23. The defendants further assert that the Final Guidance is consistent with existing statutory and regulatory authority. Id. at 30, 33. Lastly, the defendants maintain that the Final Guidance satisfactorily explains its recommendations and thus does not violate the APA. This Memorandum Opinion addresses these arguments in turn.

III. STANDARD OF REVIEW

The summary judgment standard set forth in Federal Rule of Civil Procedure 56(a) does not apply in a case involving review of a final agency action under the APA due to the limited role of a court in reviewing the administrative record. See Catholic Health Initiatives-Iowa, Corp. v. Sebelius, 841 F. Supp. 2d 270, 276 (D.D.C. 2012). "Under the APA, . . . 'the function of the district court is to determine whether . . . as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)); see also Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (explaining that where a case involves a challenge to a final administrative action, a court's review is limited to the administrative record) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973))). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Catholic Health, 841 F. Supp. 23d at 276 (citing Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)).

IV. LEGAL ANALYIS

A. Can the Court Review the Final Guidance? "Firing nearly all the arrows in its jurisdictional quiver," Natural Res. Def. Council v. EPA, 643 F.3d 311, 313 (D.C. Cir. 2011), the EPA argues that the Final Guidance is not final agency action, or, alternatively, if it is, that exclusive jurisdiction for its review rests with the Circuit, that the Final Guidance is not ripe for review, and that the plaintiffs lack standing to challenge the Final Guidance. As explained below, "[a]ll [four] arrows miss their target." Id.

1. Final Agency Action

The APA limits judicial review to "final agency action for which there is no other adequate remedy in court." 5 U.S.C. ยง 704. In other words, finality is a "threshold question" that determines whether judicial review is available. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006). The Supreme Court has explained that, "[a]s a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency's decision making process," and second, "the action must be one by which rights or ...


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