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National Wildlife Federation v. United States Environmental Protection

May 16, 2013

NATIONAL WILDLIFE FEDERATION, PLAINTIFF,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT, LAKE CARRIERS' ASSOCIATION, ET AL., DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

The National Wildlife Federation filed suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., against the United States Environmental Protection Agency challenging 40 C.F.R. § 124.55(b), which governs certain discharge permits issued by the EPA pursuant to the Clean Water Act. Presently before the Court are Plaintiff's [7] Motion for Temporary Restraining Order and [8] Motion for Preliminary Injunction, as well as the EPA and Defendant-Intervenors' [19, 30] Motion to Dismiss. Upon consideration of the pleadings,*fn1 the relevant legal authorities, and the record as a whole, the Court finds the Plaintiff fails to state a claim under the APA. Without a valid claim, preliminary injunctive relief is unwarranted. Accordingly, the EPA and Defendant-Intervenor's motion to dismiss is GRANTED and the Plaintiff's motions are DENIED.

I. BACKGROUND

A. Statutory Framework

The Clean Water Act generally prohibits the discharge of pollutants except in compliance with the Act. 33 U.S.C. § 1311(a). One program that regulates permits for the discharge of pollutants is the National Pollutant Discharge Elimination System, or NPDES. Id. § 1342. A party seeking a discharge permit under the NPDES must obtain "a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the applicable provisions [of the Clean Water Act]." Id. § 1341(a)(1).*fn2 The certification must set forth

[A]ny effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal [] permit will comply with any applicable effluent limitations and other limitations, . . . standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.

Id. § 1341(d); see generally 40 C.F.R. § 124.53. The EPA may not issue a permit until the state issues or waives the certification. Id.

The EPA may issue a general permit covering "one or more categories or subcategories of discharges . . . within a geographic area." 40 C.F.R. § 122.28(a)(1). Before issuing the permit, the EPA publishes a draft permit, including the proposed conditions and monitoring requirements, in the Federal Register. Id. § 124.6(e). Following a notice and comment period and receipt of the relevant state certification(s) (or waiver thereof), the EPA issues the final permit. Id.; id. at §§ 124.15(a), 124.55(b). EPA regulations provide that, consistent with the "reasonable time" requirement of section 1341(a)(1), state certification must be granted or denied within sixty days. 40 C.F.R. § 124.53(c)(3), (d). If a state has not granted, denied, or waived certification by the time the draft VGP is prepared, the EPA sends a copy of the draft permit to the state and indicates that the state will be deemed to have waived its right to certify unless it does so within sixty days from the date the draft permit is mailed. Id. § 124.53(c)

"If there is a change in the State law or regulation upon which a certification is based," the state may issue a modified certification. 40 C.F.R. § 124.55(b). If the EPA receives the modified certification before the final permit issues, "the permit shall be consistent with the more stringent conditions which are based upon State law identified in such certification." However,

If the certification or notice of waiver is received after final agency action on the permit, the [EPA] may modify the permit on request of the permittee only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency.

Id. (emphasis added). Section 124.55 was promulgated in 1980 as part of a comprehensive revision of the procedures governing the NPDES. Natural Res. Def. Council v. EPA, 673 F.2d 400, 401-02 & n.1. The Complaint challenges the validity of the portion of section 124.55(b) that prohibits the EPA from modifying permits to include more stringent conditions added to a state certification after a permit issues.

B. Vessel General Permit & Litigation History In 2009, several states and environmental organizations sued the EPA in the United States Court of Appeals for the District of Columbia Circuit challenging a vessel general permit ("VGP") governing ballast water discharge, issued by the EPA on December 29, 2008, and set to expire on December 18, 2013. See generally Natural Res. Def. Council v. EPA, No. 09-1089 (D.C. Cir. filed Mar. 9, 2009). As part of a consent decree resolving the various petitions, the EPA agreed to promulgate a new VGP to take effect in December 2013 by no later than November 30, 2012. Def.-Intervs.' Ex. 1 (Consent Decree) ¶ 5. The parties later extended the deadline for final issuance of the permit to March 15, 2013. Natural Res. Def. Council v. EPA, No. 09-1089, Notice of Filing of Settlement Agreement Modifications, ¶ 3 (D.C. Cir. filed Nov. 30, 2012). The EPA published a draft of the replacement VGP in the Federal Register on December 8, 2011. 76 Fed. Reg. 76,716 (Dec. 8, 2011). The proposed VGP "would authorize discharges incidental to the normal operation of non-military and nonrecreational vessels greater than or equal to 79 feet in length." Id. The draft permit "propos[ed] new, more stringent numeric technology-based effluent limitations that are applicable to vessels with ballast water tanks and will largely replace the non-numeric effluent limitations for ballast water" contained in the 2008 permit challenged in the D.C. Circuit. Id. at 76,720.

The EPA sent a request for certification to the states on December 16, 2011. Compl. ¶ 21. Pursuant to the terms of the consent decree, the states had at least six months to submit certifications to the EPA, rather than the usual sixty days. Def.-Intervs.' Ex. 1 ¶ 7. The Plaintiff submitted "extensive comments" to the New York State Department of Environmental Conservation regarding its draft certification. Id. at ¶ 23. New York issued the certification on September 26, 2012. Id. at ¶ 24. The certification purportedly did not include any of the changes advocated by the Plaintiff, "but included conditions the [state] claimed are more stringent than those in the VGP." Id. Asserting the conditions in the certification are not stringent enough, the Plaintiff filed suit in Supreme Court of the State of New York on November 7, 2012 challenging the certification by way of an Article 78 petition. Id. at ¶¶ 25, 26. The Defendant-Intervenors in this matter have also intervened in the New York case. The state court has yet to rule on the Plaintiff's petition. See Nat'l Wildlife Fed. v. Martens, No. 6181-12 (N.Y. S. Ct. Filed Nov. 7, 2012).

After a notice and comment period, the EPA published a notice of final permit issuance on April 12, 2013. 78 Fed. Reg. 21,938 (Apr. 12, 2013). The VGP was considered issued as of April 26, 2013, and will take effect December 19, 2013. Id. at 21,939. The Plaintiff filed suit in this Court on May 1, 2013, and simultaneously sought a temporary restraining order and preliminary injunction. The Plaintiff argues that absent preliminary relief, the New York court may dismiss the Plaintiff's petition as moot insofar as even if the New York court orders the state to revise the certification to add more stringent conditions, the EPA will not incorporate more stringent conditions into the VGP in light of section 124.55(b). As to the merits generally, the Plaintiff argues that section 124.55(b) violates 33 U.S.C. ยง 1341(d) (section 401(d) of the Clean Water Act), which, according the Plaintiff, "expressly and ...


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