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AMERICAN LITTORAL SOC. v. U.S. E.P.A. REGION

March 28, 2002

AMERICAN LITTORAL SOCIETY AND NEW JERSEY PUBLIC INTEREST RESEARCH GROUP, CITIZENS LOBBY, PLAINTIFFS,
V.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION, CHRISTINE T. WHITMAN, ADMINISTRATOR, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION II, WILLIAM J. MUSZYNSKI, ACTING REGIONAL ADMINISTRATOR,[FN1A] DEFENDANTS.



The opinion of the court was delivered by: Cooper, District Judge.

[fn1a] Christine T. Whitman, Administrator, United States Environmental Protection Agency, is substituted for Carol Browner, and William J. Muszynski, Acting Regional Administrator, United States Environmental Protection Agency, Region II, is substituted for Jeanne Fox pursuant to Federal Rule of Civil Procedure 25(d).

            MEMORANDUM OPINION

This matter comes before the Court on (1) cross-motions for judgment on the record pursuant to Federal Rule of Civil Procedure 52(a) on Counts One and Two of the Fifth Amended Complaint, (2) cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Count Four of the Fifth Amended Complaint, and (3) plaintiffs' motion to strike. Plaintiffs American Littoral Society and New Jersey Public Interest Research Group, Citizens Lobby (collectively "plaintiffs") instituted this lawsuit against defendants United States Environmental Protection Agency ("EPA"), the Administrator of EPA, and the Regional Administrator of the EPA (collectively referred to herein as "EPA" or "defendants") to compel EPA to perform allegedly mandatory duties under the Clean Water Act (the "CWA"), the Endangered Species Act (the "ESA"), and the Administrative Procedures Act ("APA") in New Jersey.

Plaintiffs' CWA and APA claims allege that EPA failed to implement the CWA in New Jersey following the State of New Jersey's prolonged failure to do so. Under the CWA, the states have primary responsibility for setting water quality standards ("WQSs") pursuant to EPA regulations and taking steps to achieve those WQSs. Although the State of New Jersey ("New Jersey") set WQSs as required, it failed to take timely steps to identify water quality limited segments ("WQLSs") in New Jersey not meeting the WQSs and to establish total maximum daily loads and total maximum daily thermal loads ("TMDTLs"; total maximum daily loads and TMDTLs shall hereinafter be collectively referred to as "TMDLs") for those WQLSs. WQLS means any segment of a body of water where it is known that water quality does not meet applicable WQSs, or is not expected to meet applicable WQSs, even after application of technology-based effluent limitations. TMDLs represent the maximum amount of daily pollution a body of water can absorb before it no longer complies with a particular WQS. Under the CWA, New Jersey's obligation to identify WQLSs and establish TMDLs came due more than twenty years ago.
Plaintiffs' ESA claim, which is set forth in Count Four of the Fifth Amended Complaint, alleges that EPA failed to comply with section 7 of the ESA. Under section 7 of the ESA, an agency has a duty to confer with the Secretary of the Department of Commerce and the Secretary of the Department of Interior (collectively the "Secretaries")*fn1 when an agency action is likely to jeopardize the continued existence of any species proposed to be listed under ESA or destroy or adversely modify the critical habitat proposed to be designated for such species.

Plaintiffs seek injunctive and declaratory relief requiring EPA to establish a complete § 303(d) List for New Jersey and to implement TMDLs for the WQLSs on such list under enforceable timetables, with notice and an opportunity for comment from the public and consultation from the Secretaries.

In two lengthy prior opinions, this Court had occasion to address issues related to this longstanding litigation. In a Memorandum and Order filed on June 29, 1999, we granted in part and denied in part defendants' motion to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and granted plaintiffs leave to file a Third Amended Complaint. (Mem. & Order filed 6-29-99.) In a Memorandum Opinion filed on December 21, 2000 ("12-21-00 Memorandum Opinion"), the Court, inter alia, granted in part and denied in part plaintiffs' motion for summary judgment, granted in part and denied in part EPA's motion for summary judgment, and granted leave to plaintiffs to amend the Fourth Amended Complaint to correct certain defects in Count Four of the Third Amended Complaint. (Mem. Op. filed 12-21-00.)

For the reasons expressed below, the Court will (1) deny plaintiffs' motion to strike, (2) grant EPA's cross motion for judgment on the record on Counts One and Two, and (3) grant EPA summary judgment on Count Four. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law with respect to the issues before us pursuant to Federal Rule of Civil Procedure 52(a).

DISCUSSION

I. STANDARDS OF REVIEW

A. Judgment on the Record on Counts One and Two: Federal Rule of Civil Procedure 52(a)

Pursuant to Federal Rule of Civil Procedure 52(a),*fn2 the parties cross move for final judgment on the record on Counts One and Two of the Fifth Amended Complaint. Rule 52(a) allows a court to decide, with the consent of the parties, a case without a formal jury trial "based on the record compiled in summary judgment proceedings." Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142 (2d Cir. 1998). The Court's main concern in our 12-21-00 Memorandum Opinion was whether genuine issues of material fact precluded summary judgment. Concerning our current evaluation of Claims One and Two, however, the Court now must make findings of fact and conclusions of law with respect to the ultimate merits of those claims. In deciding the parties' cross-motions for final judgment, therefore, neither side is entitled necessarily to having all reasonable inferences made in its favor. Natural Res. Def. Council, Inc. v. Fox, 93 F. Supp.2d 531, 535 (S.D.N.Y. 2000) ("NRDC III"), aff'd in part, vacated in part, 238 F.3d 91 (2d Cir. 2001).

B. Summary Judgment on Count Four: Federal Rule of Civil Procedure 56(c)
Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. Id. at 324. In deciding a motion for summary judgment, the Court must view the evidence 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).
"By its very terms, the standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are only those facts that might affect the outcome of the action under governing law. Id. at 248; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991). The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citation omitted).
C. Review of Agency Action on Counts One, Two, and Four: Administrative Procedure Act
When reviewing agency action under the APA, "[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). Furthermore, the APA authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). "Agency action," as used in section 706, "includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13).
The APA's standard of review is narrow and presumes the agency action is valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976), but does not shield agency action from a "thorough, probing, in-depth review." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The APA does not give a court power "to substitute its judgment for that of the agency," but does allow the court to "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416.

A decision is "arbitrary and capricious" within the meaning of the APA if the agency has relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

We will next address plaintiffs' motion to strike.

II. MOTION TO STRIKE
Plaintiffs move to strike the (1) Declaration of Kathleen Callahan, (2) Declaration of Rosella O'Connor, (3) Declaration of Wayne Jackson, (4) Declaration of Robert Hargrove, (5) February 21, 2001 Letter from Robert Hargrove of the EPA to Clifford Day of the United States Fish and Wildlife Service ("FWS"), and (6) February 21, 2001 Letter from Robert Hargrove of the EPA to Mary Colligan of the National Marine Fisheries Service ("NMFS"). Plaintiffs argue that those materials are inadmissible extra-record evidence. (Pls.' Reply Br. in Supp. of Pls.' Mot. for J. on the R. for Claims 1 & 2 and in Opp'n to EPA's Cross-Mot. for J. on the R. for Claims 1 & 2 ("Pls.' JR Reply Br.") at 5, 8-10.) Specifically, plaintiffs argue that (1) those documents exceed the Court's ruling that Rule 52 motions would be limited to the "present record," (2) the Court ruled that judicial review would be limited to the administrative record, (3) the affidavits are hearsay, (4) the affidavits lack foundation and markers of reliability, and (5) principles of equity suggest that EPA should be estopped from introducing extra-record evidence. (Pls.' JR Reply Br. at 8-10.) In response, EPA argues that (1) plaintiffs failed to identify what portions of the declarations the Court should exclude, (2) the material in the declarations is responsive to the Court's inquiries in our 12-21-00 Memorandum Opinion, (3) the material in the declarations is responsive to fact-based arguments in plaintiffs' moving papers, (4) the materials provide explanations or analyses of record evidence, technical guidance, regulations, or the CWA, and (5) the materials support EPA's position that New Jersey's current efforts to comply with the CWA render judicial intervention unnecessary, which the Court authorized EPA to offer as evidence. (EPA's Reply Mem. in Supp. of EPA's Cross-Mot. for J. on the R. on Claims 1 & 2 ("EPA's JR Reply Br.") at 12 n. 4.)
Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Pres. Overton Park, 401 U.S. at 420. Certain circumstances, however, may justify expanding review beyond the record or permitting discovery. See, e.g., Pub. Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir. 1982). A court may find it necessary to review additional material to explain the basis of the agency's action and the factors the agency considered. Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir. 1986). When such a failure to explain agency action effectively frustrates judicial review, the court may "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. 138, 143 (1973).
The Court will deny plaintiffs' motion to strike. The challenged documents may be considered for several reasons. First, the Declaration of Robert Hargrove and his letters to the FWS and NMFS relate to the issue of whether plaintiffs' Claim Four is moot. Mootness, by definition, relates to "events occurring after the alleged violation." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 729 (10th Cir. 1997). The challenged documents speak to the Court's jurisdiction to hear Claim Four and are relevant to the determination of whether plaintiff has already obtained the relief it seeks. See id. The Court may consider those documents for purposes of determining jurisdiction under the mootness doctrine.*fn3 A contrary conclusion would preclude altogether an examination of mootness, which is concerned with how changed circumstances in a litigation affect a court's capacity to grant the requested relief. Therefore, the Court takes into account the Hargrove Declaration and the two letters to the respective Services.
Second, the Court's receipt of current information is essential to the proper exercise of our equitable jurisdiction. Because plaintiffs seek injunctive and declaratory relief, the Court must concern itself to some extent with events that are occurring presently. See S.F. Baykeeper v. Browner, 147 F. Supp.2d 991, 1001 (N.D.Cal. 2001). For example, the question of "constructive submission" is at issue in the Court's consideration of plaintiffs' Claim Two. On that issue, because the Court's "only power is to require EPA to conform its present conduct to the law, EPA's past noncompliance is irrelevant to the question of an agency's present compliance." NRDC III, 93 F. Supp.2d at 536. Therefore, given that present compliance is the relevant issue, the Court should consider evidence speaking to that compliance. The Declaration of Kathleen Callahan, for example, speaks to the status of New Jersey's submission of TMDLs, which directly relates to whether a constructive submission has occurred. For that matter, it is not clear that the challenged documents even constitute materials "outside the record" on which EPA based its decisions, for the documents generally speak to events occurring since the initiation of litigation and the Court's 12-20-00 Memorandum Opinion.
Third, the Court invited and authorized the submission of the challenged documentation. In our 12-21-00 Memorandum Opinion, the Court stated that the nature and extent of EPA's duty "must be assessed in light of continuing developments, including progress in New Jersey's efforts to submit TMDLs." (12-21-00 Mem. Op. at 42.) We also stated that EPA would be "free to offer evidence `outside the record' supporting its assertion that New Jersey's current efforts to comply with the CWA make its intervention unnecessary." (Id. at 48 n. 19.) EPA would be "free to challenge plaintiff's proofs on [water quality in New Jersey], or submit its own proofs, prior to the Court's final determination on the merits of plaintiffs' claim." (Id.) In light of those comments, it is not unreasonable for EPA to submit, and the Court to consider, supplemental materials speaking to those issues. Therefore, the Court will deny plaintiffs' motion to strike.

III. COUNT ONE: APPROVALS

Count One of the Fifth Amended Complaint is predicated on section 303 of the CWA, which requires the establishment and implementation of WQSs. See 33 U.S.C. § 1313. Count One alleges that EPA's approval of allegedly deficient § 303(d) Lists of WQLSs was arbitrary, capricious, and an abuse of discretion in violation of section 706(2)(A) of the APA.*fn4
Section 303(d) provides the means by which states are required to implement WQSs. Section 303(d) requires each state to identify the WQLSs within its boundaries that do not meet or are not expected to meet applicable WQSs even after the imposition of best-practicable technology-based effluent limitations and other required controls. 33 U.S.C. § 1313(d)(1). WQLS "means any segment where it is known that water quality does not meet applicable [WQSs], and/or is not expected to meet applicable [WQSs], even after the application of the technology-bases [sic] effluent limitations required by sections 301(b) and 306 of the [CWA]." 40 C.F.R. § 131.3(h).
After identifying all such WQLSs, each state must establish a priority ranking for waters within its boundaries, taking into account the severity of the pollution and the uses to be made of such waters. 33 U.S.C. § 1313(d)(1)(A). The priority ranking of WQLSs is placed on the state's section 303(d) List, which is ultimately submitted to EPA for approval. 33 U.S.C. § 1313(d).
After identifying all impaired waters on its section 303(d) List, the state must also establish TMDLs for the pollutants causing impairment of each WQLS. 33 U.S.C. § 1313(d)(1)(C). As with § 303(d) Lists, the state must submit TMDLs to EPA for review. 33 U.S.C. § 1313(b)(2); 40 C.F.R. § 130.7. Any EPA-approved TMDLs must be incorporated by the state into its continuing planning processes. 33 U.S.C. § 1313(d)(2), (e). TMDLs must then be implemented through the National Pollutant Discharge Elimination System ("NPDES") permitting process to ensure attainment of WQSs.*fn5 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.4, 122.44, and 122.62.

The Fifth Amended Complaint seeks judicial review of EPA's approval of New Jersey's 1992, 1994, 1996, and 1998 section 303(d) Lists submitted by New Jersey and approved by EPA to the extent that the lists omit sixty waters from the 1998 (and prior) lists.*fn6 Therefore, the Court will consider plaintiffs' challenge to EPA's approval of the 1992, 1994, 1996, and 1998 lists despite the omission of approximately sixty WQLSs from those lists.

Plaintiffs argue that section 303(d) Lists "must include all waters for which existing pollution controls or requirements are inadequate to provide for attainment and maintenance of water quality standards." (Pls.' Br. in Supp. of Mot. for Summ. J. ("Pls." Summ. J. Br.") at 6 (citing Guidance for 1994 Section 303(d) Lists ("1994 Guidance") at 3).) Plaintiffs argue that four categories of waters were improperly excluded from New Jersey's § 303(d) Lists: (1) CWA section 319 waters, (2) CWA section 304(l) waters, (3) waters for which CWA section 316(a) variances have been granted, and (4) waters failing to meet antidegradation standards. (Id. at 11-16.)*fn7
Plaintiffs argue that EPA does not have the discretion to approve New Jersey's section 303(d) Lists when they omit such waters from the lists. EPA, on the other hand, argues that (1) plaintiffs lack standing to sue concerning the omission of waters, except for section 304(l) waters, and (2) assuming that plaintiffs have standing, the relevant administrative records support EPA's decision to approve New Jersey's 1998 (and prior) § 303(d) Lists excluding those waters. (Combined Mem. in Supp. of EPA's Cross-Mot. for Summ. J. and Br. in Opp'n to Pls.' Mot. for Summ. J. (EPA's Summ. J. Br.") at 52.)
The Court shall first address the standing issue. If the Court concludes that plaintiffs have standing, the question then becomes whether EPA's approval of New Jersey's section 303(d) Lists despite the omission of some waters from the lists, which arguably under the CWA and EPA regulations should have been on the lists, was arbitrary, capricious, an ...

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