SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA, Plaintiff - Appellant,
ANDREW WHEELER, Acting Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants - Appellees.
Argued: January 29, 2019
from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:16-cv-03060)
Paul Calamita, III, AQUALAW PLC, Richmond, Virginia, for
Jeffrey Steven Beelaert, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
W. Curtis, Paul T. Nyffeler, AQUALAW PLC, Richmond, Virginia,
Jeffrey H. Wood, Acting Assistant Attorney General, Eric
Grant, Deputy Assistant Attorney General, Sarah A. Buckley,
Chloe H. Kolman, Michael Gray, Environment and Natural
Resources Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas Glazer, Nina Rivera, Office of
General Counsel, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, Washington, D.C., for Appellees.
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
WILKINSON, CIRCUIT JUDGE.
Clean Water Act vests the Administrator of the Environmental
Protection Agency (EPA) with the authority to review the
water quality standards proposed by a state. In 2015, West
Virginia submitted a revised standard for the receiving
waters of the Charleston Sanitary Board's wastewater
treatment facility along the Kanawha River. The EPA
disapproved the standard. The Sanitary Board challenged this
decision on two grounds. First, the Board alleged that the
EPA had no discretion to disapprove the standards. The
district court rejected this argument on the merits, a
decision that we now affirm. Second, the Board claimed that,
even if the EPA had discretion, its decision violated the
Administrative Procedures Act (APA). The district court
dismissed the APA claims as moot following the issuance of a
new permit to the Sanitary Board. On appeal, we affirm the
judgment for the EPA on the merits, finding that the agency
did not violate the APA. Agency decisions like this one do
not invariably garner applause. While popular opinion of
course remains free to reject unpleasant scientific
conclusions and prognoses, the relevant statutes envision a
marriage between law and science as the surest path for
Clean Water Act (CWA) created a comprehensive scheme to
"restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." 33
U.S.C. § 1251 (2012). A critical part of the CWA's
overall program is aimed at pollutants that are discharged
into waterways through "'any discernable, confined
and discrete conveyance,' such as a pipe, ditch, channel,
or tunnel." S. Fla. Water Mgmt. Dist. v. Miccosukee
Tribe of Indians, 541 U.S. 95, 102 (2004) (quoting 33
U.S.C. § 1362(14)). These conveyances are known as
"point sources." The Charleston Sanitary Board
operates a wastewater treatment facility along the Kanawha
River that is designated as a point source.
contemplates that federal regulators, state governments, and
private citizens will all play a role in addressing point
source pollution. The National Pollutant Discharge
Elimination System (NPDES) is the foundation of this
regulatory effort. See Piney Run Pres. Ass'n v. Cty.
Comm'rs of Carroll Cty., 268 F.3d 255, 260 (4th Cir.
2001). Under the NPDES, point source operators are required
to obtain permits for their facilities at least once every
five years. The permits are tailored to each individual
facility and contain discharge limits for various pollutants,
including copper. The EPA was initially responsible for
issuing the permits to individual facilities, but states were
able to take on that responsibility if they could demonstrate
the capacity to administer an effective permitting program.
See Nat'l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 650-51 (2007) (citing 33 U.S.C.
§ 1342(b)). Most states have chosen to do so. West
Virginia has issued permits to point sources since 1982.
See Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC,
845 F.3d 133, 136 (4th Cir. 2017).
NPDES permits are based in part upon the state's overall
water quality standards. See 33 U.S.C. § 1312.
These standards set the water quality requirements for each
body of water within a state. Nat. Res. Def. Council v.
EPA, 16 F.3d 1395, 1400 (4th Cir. 1993). A
standard might apply to an entire river or may be specific to
one area, or even one particular facility. See,
e.g., J.A. 148 (defining a standard for the
"stretch between the mouth of Little Scary Creek and the
Little Scary impoundment"). The states are responsible
for developing standards in the first instance, defining
acceptable levels of pollution for each location based on the
"designated uses" of the waters at that location.
33 U.S.C. § 1313(c)(2)(A). Once the state has adopted
new or revised standards, they are submitted to EPA for
approval. Standards do not become effective until the EPA
approves them. Apart from its oversight and approval role,
the EPA also develops guidance on acceptable water quality
levels and measurement techniques, which states in turn rely
on in evaluating and updating their standards. Relevant to
this case, the EPA has issued many guidance documents
regarding appropriate copper standards over the years.
together, point source regulation depends on a division of
governmental authority. States develop their standards,
informed by EPA's scientific guidance. The EPA then
reviews the proposals, bringing its own expertise to bear. If
the standards receive EPA approval, they then "serve as
a guideline for setting applicable limitations in the [NPDES]
permit[s]." Nat. Res. Def. Council, 16 F.3d at
1399. Private citizens, for their part, are able to enforce
the law in some circumstances through the CWA's citizen
dispute here involves West Virginia's attempt to revise
its standards with respect to the portion of the Kanawha
River that receives discharges from the Charleston Sanitary
Board's wastewater treatment facility. In 2013, the
Sanitary Board met with the West Virginia Department of
Environmental Protection to explore the possibility of a less
stringent copper standard for these waters. Under its
then-existing permit, the Board was subject to a copper limit
that it believed was lower than necessary to protect aquatic
life. The Board's expectation was that a new, more
lenient standard for the site would lead to a more lenient
permit. The Board financed a study and state regulators
agreed that the copper limit for the Board's facility
should be raised. Staff at the EPA signaled that West
Virginia's proposed standard was consistent with
applicable guidance, but made clear that this preliminary
assessment would not tie the agency's hands down the
road. J.A. 81.
2015, West Virginia approved the new standard and sent it
along to EPA for final review. See 33 U.S.C. §
1313. Under the CWA, the EPA is given sixty days to reach a
decision, and in the event of a denial, thirty additional
days to provide feedback to the state on any changes that
would need to be made to obtain the agency's approval.
Id. § 1313(c)(3). EPA missed the deadline for
reviewing West Virginia's proposed standards, and this
Sanitary Board initially brought two claims against the EPA
under the CWA's citizen suit provision. That provision
allows a private party, like the Sanitary Board, to sue the
EPA Administrator for his failure "to perform a
non-discretionary duty" required by the law.
See 33 U.S.C. § 1365(a)(2). The Board's
first claim argued that the Administrator had a
non-discretionary duty to reach a decision, either for or
against the West Virginia proposal, within the deadlines set
forth in the statute. The second claim was bolder, alleging
that the Administrator had a non-discretionary duty to
approve the proposed standard because the EPA had
already determined it was consistent with the statute. Before
reaching the merits of these claims, the district court
granted the EPA a forty-five day extension to reach a final
decision on the revised standards.
then disapproved West Virginia's proposal. See
Letter from Shawn M. Garvin, Regional Administrator, Envtl.
Protection Agency, to Randy C. Huffman, Secretary, W.Va.
Dep't of Envtl. Protection 1 (July 19, 2016) [hereinafter
Final Disapproval Letter]; J.A. 66. Although the state
standards were developed using a familiar methodology, the
EPA found that the proposed copper limit for the Sanitary
Board's facility was so high as to warrant additional
scrutiny. Applying the most recent scientific methods, the
EPA "determined that, based on the available
information, the site specific criteria" proposed for
the Sanitary Board "would not be protective of . . .
fish and other aquatic life . . . in the Kanawha River."
Id. The EPA's disapproval letter included a