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Center for Regulatory Reasonableness v. United States Environmental Protection Agency

United States District Court, District of Columbia

March 31, 2019

CENTER FOR REGULATORY REASONABLENESS, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. Defendants, and MINNESOTA POLLUTION CONTROL AGENCY, and MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Defendant-Intervenors.

          MEMORANDUM OPINION

          Richard L. Leon United States District Judge.

         The Center for Regulatory Reasonableness ("CRR") is a coalition of municipal and industrial entities from around the United States that seeks to ensure that regulatory requirements are scientifically founded, publicly vetted, and cost-conscious. Compl. at ¶ 11 [Dkt. #1]. On behalf of its Minnesota members, CRR brought this action against the Environmental Protection Agency and Region V of the Agency (collectively, "EPA" or "Agency") challenging EPA's (1) approval under the Clean Water Act ("CWA" or "Act") of certain water quality criteria promulgated by the Minnesota Pollution Control Agency ("MPCA"), and (2) refusal to withdraw approval in response to CRR's administrative petition for reconsideration. Id. at ¶ 2. CRR alleges that EPA's approval and denial of reconsideration were arbitrary and capricious and/or otherwise in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Id. at ¶¶ 88-112. MPCA and the Minnesota Center for Environmental Advocacy ("MCEA") have intervened to defend the challenged EPA actions. See [Dkt. U 11, 22]; Minute Order (September 25, 2017).

         Pending before me are CRR's and EPA's cross-motions for summary judgment. [Dkt. ## 38, 42]. Upon due consideration of the pleadings, the relevant law, and the entire record herein, EPA's motion for summary judgment is GRANTED and CRR's motion for summary judgment is DENIED.

         BACKGROUND

         A. Legal Framework

         Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve these goals, the Act adopts a "cooperative federalism" framework intended "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution" and "to plan the development and use (including restoration, preservation, and enhancement) of land and water resources." Id. § 1251(b). Consistent with this "state/federal pas de deux" § 303 of the CWA outlines a process for the adoption and review of water quality standards, under which States are chiefly responsible for promulgating and revising water quality standards in accordance with the Act and EPA implementing regulations. Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993); 33 U.S.C. § 1313. This authority includes designating the manner in which the waters should be used ("designated uses")-e.g., public water supply, recreation, fish propagation-and establishing water quality criteria that protect those uses. 33 U.S.C. § 1313(c); 40 C.F.R. §§ 131.3(f), (i), 131.10. Under the CWA, waters must be designated fishable and swimmable "wherever attainable." 33 U.S.C. § 1251(a)(2).

         A State's water quality criteria quantify the amount of pollutants that may be present in a waterbody while still protecting the designated uses. See 40 C.F.R. § 131.11; JA387-88[1]. The criteria must be at least "sufficient to protect the designated uses," 40 C.F.R. §§ 131.6(c), 131.11(a)(1), but States are expressly authorized to adopt standards "more stringent" than those required by the CWA and accompanying regulations, 33 U.S.C. § 1370; 40 C.F.R. § 131.4(a). Water quality criteria "come in two varieties: specific numeric limitations on the concentration of a specific pollutant in the water" and "more general narrative statements applicable to a wide set of pollutants." Am. Paper Inst, 996 F.2d at 349; 40 C.F.R. §§ 131.3(b); id. § 131.11. Criteria "must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use." 40 C.F.R. § 131.11(a)(1). States that promulgate numeric criteria "should . . . [e]stablish" them "based on:" EPA guidance, EPA guidance modified to reflect conditions at the site, or "[o]ther scientifically defensible methods." Id. § 131.11(b).

         B. EPA Review and Approval Process

         While the CWA allocates to the States the primary authority to develop water quality standards, the States nonetheless must submit all new and revised standards to EPA for approval or disapproval. 33 U.S.C. § 1313(c)(2)-(3). EPA must base its approval or disapproval "on the requirements of the Act as described in [40 C.F.R.] §§ 131.5 and 131.6, and, with respect to Great Lakes States ... 40 CFR Part 132." 40 C.F.R. § 131.21(b). During the time period relevant here, § 131.5(a) required EPA to consider whether the State: (1) adopted water uses consistent with the CWA's requirements; (2) adopted criteria that protect the designated uses; (3) followed its own legal procedures for revising or adopting standards; (4) for standards that do not include uses specified in CWA § 101(a)(2), based its criteria on appropriate technical and scientific data and analyses; and (5) provided a submission that meets the requirements outlined in 40 C.F.R. § 131.6, and for Great Lakes States, the requirements of 40 C.F.R. part 132.

         As to the final § 131.5(a) factor, under § 131.6, a State's submission must contain: (a) designated uses consistent with CWA §§ 101(a)(2) and 303(c)(2); (b) the methods used and analyses conducted to support revisions to existing standards; (c) "water quality criteria sufficient to protect the designated uses"; (d) an anti-degradation policy consistent with § 131.12; (e) certification from the State's Attorney General or other State legal authority that the standards were duly adopted under state law; and (f) where standards do not include designated uses specified in CWA § 101(a)(2), general information that will aid EPA in determining the adequacy of the scientific basis, as well as general policies that may affect application and implementation. And for Great Lakes States, to satisfy 40 C.F.R. part 132 "[f]or pollutants listed in Table 5 of part 132, the State must "[a]pply any methodologies and procedures acceptable under 40 CFR part 131 when developing water quality criteria." 40 C.F.R. § 132.4(g)(1).

         If EPA determines that a State's water quality standards and submission meet the foregoing requirements, EPA must approve the standards within 60 days after submission. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.5(b). Upon approval by EPA, the standards become effective under the CWA. 40 C.F.R. § 131.21(c).

         C. Eutrophication, Numeric Nutrient Criteria, and Stressor-Response Analysis

         Since the late 1990s, EPA has required States to adopt water quality criteria addressing eutrophication in surface waters (e.g., lakes, rivers, streams, wetlands). JA58, 389. Eutrophication is a form of pollution that results from excess nutrients, like phosphorus, entering waterbodies. JA389. The excess nutrients stimulate excessive plant and algae growth, which can harm aquatic life and cause public health issues. JA389; see also JA5&, 59n.9, 428.

         Longstanding EPA guidance describes "several approaches that, based on EPA's review of the scientific literature, provide sound scientific rationale for development of nutrient criteria that are protective of aquatic life uses." JA534. According to EPA, any of three approaches-stressor-response analysis, reference condition approaches, and mechanistic modeling-"can satisfy the requirement of 40 CFR 131.11(a) that criteria must be based on 'sound scientific rationale' and 'protect the designated use.'" JA534; see also JA423, 429. Relevant here, in 2010 EPA issued "Using Stressor-response Relationships to Derive Numeric Nutrient Criteria" (hereinafter, "EPA Stressor-Response Guidance"), a guidance document peer reviewed by external scientists and EPA's Science Advisory Board. JA415-507, 534. The EPA Stressor-Response Guidance sets out a four-step process for State's to develop numeric nutrient criteria for use in water quality standards: (1) develop a conceptual model representing the known relationships between concentrations of the nutrients at issue (e.g., phosphorous), the biological responses thereto, and the attainment of the designated use, JA431-41 & Fig. 2-2 (providing example model), 535-37; (2) assemble data and identify variables to represent the relationships in the model-EPA recommends choosing one or more "primary causal variables" that drive the eutrophication process and multiple "response variables" that indicate the occurrence of eutrophication[2]-and determine whether ecoregions should be identified, [3] JA431, 442-59, 545-48; (3) determine the stressor-response relationships between the primary causal and response variables using statistical and other data analyses and use those relationships to derive numeric nutrient criteria, JA431, 459-91; and (4) validate the stressor-response relationships and criteria using additional statistical and other data analyses, JA431, 492-98, 534.

         D. Minnesota's River Eutrophication Criteria

         At issue in this case is Minnesota's adoption of a two-part water quality criteria designed to protect surface waters from eutrophication ("River Eutrophication Criteria" or "Criteria"). See JA6-9. The Criteria were adopted by MPCA, the agency charged with enforcing and administering the CWA and its regulations in Minnesota. JA4; 40 C.F.R. § 123.25(a); Minn. Stat. 115.03, subd. 1(a). Minnesota had previously designated rivers and streams for aquatic life protection, see, e.g., JA16, 185, 343-44, 387, 532, and the Criteria "d[id] not include new or revised use designations," JA531.

         In deriving its River Eutrophication Criteria to protect aquatic life, "MPCA followed a process consistent with the four-step process set forth in EPA's Stressor-response Guidance." JA534.

         Step One. Using field data, empirical observation, and scientific literature, MPCA developed conceptual models for eutrophication in Minnesota's rivers and streams. JA534-38; see also JA188, 189 Fig. 2. MPCA's conceptual model was consistent with the model provided in the EPA Stressor-Response Guidance. JA537; see also JA187-91. According to the model, as the levels of phosphorus and nitrogen rise, the growth of aquatic plants and algae is stimulated-depicted as increased chlorophyll a-which impacts the aquatic environment by, inter alia, reducing dissolved oxygen ("DO") concentration, causing increased fluctuations in DO levels (i.e., diel DO flux), and increasing demand for oxygen, which can be measured as biochemical oxygen demand ("BOD")5. JA188-90. As MPCA's model illustrates, these environmental impacts (and others, like pH fluctuations) stress or even kill sensitive aquatic plants and animals. JA188-90.

         Step Two. MPCA identified variables representing concepts from its model that connect the causal values (like phosphorus) and environmental responses (like loss of sensitive aquatic life). JA539-45. From the identified variables, MPCA selected those that are also identified as commonly used in the EPA Stressor-Response Guidance: total phosphorus, DO flux, BOD, and other response metrics that gauge the aquatic health of Minnesota's rivers. JA539-41. MPCA conducted statistical and other data analyses to determine that total phosphorus levels are significantly related to increased plant and algae growth (measured as chlorophyll a), JA541 & Table IV.2; see also JA221 Fig. 19a, and such growth is significantly related to chemical changes in the water (detectable as, inter alia, increased BOD5 and diel DO flux), which are indicative of eutrophication, JA541 & Table IV.2; see also JA221-29 & Figs. 26, 27. After additional analysis, MPCA identified 14 biological response measures of aquatic life harm (e.g., percentage of sensitive fish) that strongly correlated to the response variables (e.g., diel DO flux, BOD5) and determined the ranges of response values that correlate with harm. JA541-43; see also 232-39. These findings validated the conceptual model as well as the causal and response variables that MPCA had identified. JA541-43. In particular, MPCA confirmed that heightened levels of phosphorus directly cause increases in diel DO flux and BOD5, which, again, relates directly to increased plant and algae growth. JA544; see also JA221-31. However, because MPCA's analyses showed that DO flux and BOD5 increases can result from other factors (e.g., water temperature or shade) in addition to phosphorus, MPCA decided that DO flux and BOD5 should be incorporated in the water quality criteria as constituent parts of a multi-variable standard rather than as standalone measures of eutrophication. JA544-45. In other words, MPCA took the view that a waterbody should not be considered impaired unless both its total phosphorus level and one (or more) of diel DO flux or BOD5 (or another response variable) exceed the numeric standards. JA544-45.

         Step Three. MPCA conducted analyses to determine whether to divide the State into ecoregions with distinct corresponding numeric nutrient criteria. JA545-48. Relying in part on the EPA Stressor-Response Guidance, MPCA concluded that three ecoregional criteria distinctions were appropriate due to demonstrated regional variances in baseline phosphorus concentrations and the levels of phosphorus at which certain aquatic life suffered harm. JA546-48. Having identified the appropriate ecoregions, MPCA, using statistical analyses recommended in the EPA Stressor-Response Guidance, assessed the relationships in each ecoregion between the causal and response variables it had identified. JA548-52. MPCA found that aquatic life is harmed over a range of phosphorus levels (the causal variable), and it located the points or "thresholds" at which the maximum amount of harm was caused per unit change in diel DO flux, BOD5, and the other response variables. JA551-53. MPCA then selected the appropriate numeric values for each of the variables. It determined that "a mean or median statistic would be under protective because the concentration threshold [at which harm is observable] would be exceeded for approximately half of the biological metrics." JA548, 555; see also JA243. Accordingly, MPCA decided to set the numeric criteria at the 25th percentile of the harm thresholds it had identified for each variable in each ecoregion. JA548, 555; see also JA243.

         Step Four. Using the methods recommended in the EPA Stressor-Response Guidance, MPCA validated the relationships it had observed and confirmed. JA556-57; see also JA492-98. MPCA also considered implementation issues, which were addressed by its development of ecoregion-specific values and its dual-indicator approach, both of which would help to ensure that the State's water quality standard would not be exceeded absent actual phosphorus-driven eutrophication. JA556-57. MPCA documented its data and analytic work throughout the process. JA557.

         In their final form, the River Eutrophication Criteria consist of numeric limitations on total phosphorous and each of four measurable responses that are indicative of eutrophication: diel DO flux, BOD5, pH, and chlorophyll a. JA533. Under the Criteria, a Minnesota waterbody is deemed impaired if the waterbody exceeds simultaneously the numeric value for both total phosphorus and one or more of the response variables. Id. Thus, the Criteria effectively "consist of four separate dual-pollutant criteria": (1) total phosphorous chlorophyll a; (2) total phosphorous DO flux; (3) total phosphorous BOD5; and (4) total phosphorous pH. JA533. Additionally, the Criteria are distinguished by ...


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