On Wednesday in the District of Columbia District Court, Gunpowder Riverkeeper (GRK) filed a complaint against the United States Environmental Protection Agency (EPA) and its Administrator, Andrew Wheeler, challenging the agency’s final action granting approval of the Total Maximum Daily Load (TMDL) for two Maryland river subsegments, the Gunpowder and the Bird. The plaintiff argued that the EPA shirked its duties under the Clean Water Act (CWA) and the Administrative Procedure Act (APA) by approving the TMDL for Polychlorinated Biphenyls (PCBs) “arbitrarily and capriciously,” in violation of its non-discretionary obligation to reject a TMDL out of compliance with water quality standards.
GRK, a Maryland non-profit comprised of “approximately 370 members who live, work, and recreate along the Gunpowder and Bird rivers,” filed the complaint under the citizen suit provision of the CWA. It alleges that the illegal PCB pollution “adversely affects members’ enjoyment of recreational activities and the ability to generate income from the waterways,” and creates the risk of “exposure to carcinogenic PCBs if they undertake those activities.” If the pollution abated, GRK contends, its members would resume waterway activity.
Before the Maryland Department of the Environment (MDE) submitted the proposal to the EPA for approval, MDE solicited public comment, to which GRK responded. The non-profit primarily questioned whether the draft TMDL included all potential sources of PCBs in its calculations, acknowledged the danger of accumulation of the toxins in fish from high PCB sediment concentrations, and if the draft “properly safeguard[ed] aquatic uses of the waterbody or public health for those consuming fish from these waters within a reasonable timeframe.” Thereafter, the draft TMDL was submitted to and later approved by the EPA on October 3, 2016.
The plaintiff’s first cause of action charged the EPA with a violation of the CWA for its failure to ensure that the TMDL “establish[ed] load allocations for all nonpoint and natural background sources of the covered pollutant,” as required by 40 C.F.R. 130.2(i). Specifically, GRK contended that the EPA improperly approved a TMDL that did not set forth “load allocations for PCBs discharged from bottom sediment in the Gunpowder and Bird rivers.”
In its second and final claim for relief, GRK argued that the EPA failed to explain its regulatory action in violation of the APA, 5 U.S.C. § 706(2)(A) and (C). The plaintiff averred that the lack of transparency in the EPA’s decision-making constitutes an arbitrary and capricious action “‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.’”
For example, the EPA neither “explain[ed] its acceptance of MDE’s failure to evaluate the effects of greater reductions in PCB loading in the Bird River,” nor “offer[ed] a reasoned explanation that responds to comments, considers relevant factors, and provides a rational connection between the facts found and the choices made.” GRK seeks declaratory relief and remand of the TMDL to the EPA for reconsideration.
The plaintiff is represented by Georgetown University Law Center’s Institute for Public Representation.