4th Circuit To Weigh Scope Of EPA's Nondiscretionary Duty Under CWA

摘要

A federal appeals court is poised to consider later this month whether the Clean Water Act (CWA) requires EPA to approve changes to a state's water quality standards after the agency indicates support for state efforts while the standards are being developed - a position urged by a West Virginia wastewater utility but which a lower court rejected. The U.S. Court of Appeals for the 4th Circuit is scheduled to hear oral argument Jan. 29 in Sanitary Board of the City of Charleston, WV(CSB) v. Andrew Wheeler, where the board is asking the court to reverse a pair of rulings from the U.S. District Court for the Southern District of West Virginia that upheld EPA's rejection of a site-specific copper standard. At the heart of the litigation is CSB's desire for site-specific copper water quality criteria that would result in less stringent discharge limits for the municipal wastewater treatment plant. West Virginia's water quality standards regulation allows the default copper criteria to be tailored to local water quality conditions by conducting a Water Effect Ratio (WER) study, and CSB worked with the West Virginia Department of Environmental Protection (DEP) to develop such criteria for the Kanawha River. During the development of the site-specific criteria, EPA informed the state that it appeared it was using the right calculations. CSB maintains this means EPA approved of the process West Virginia was using and was then required to approve the subsequent final criteria. CSB initially filed suit to force EPA to act on West Virginia's submission of the new criteria, citing a 60-day deadline for action in the CWA. When EPA rejected the criteria during the course of the litigation, and West Virginia issued a new discharge permit that contained no copper limits, the district court ruled the deadline claims were moot. CSB then amended its suit to claim the disapproval violated the Administrative Procedure Act (APA), but the court dismissed the APA claims without reaching their merits.