janette k. brimmer (wsb #41271) the honorable ......plaintiffs’ motion for summary judgment and...

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

AND MEMORANDUM IN SUPPORT THERETO

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Earthjustice

705 Second Ave., Suite 203

Seattle, WA 98104

(206) 343-7340

JANETTE K. BRIMMER (WSB #41271) THE HONORABLE JOHN C. COUGHENOUR

MATTHEW R. BACA (WSB #45676)

Earthjustice

705 Second Avenue, Suite 203

Seattle, WA 98104

(206) 343-7340 | Phone

(206) 343-1526 | Fax

[email protected]

[email protected]

Attorneys for Plaintiffs Puget Soundkeeper Alliance,

Columbia Riverkeeper, Spokane Riverkeeper,

RE Sources for Sustainable Communities, Pacific Coast

Federation of Fishermen’s Associations, and Institute

for Fisheries Resources

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PUGET SOUNDKEEPER ALLIANCE,

COLUMBIA RIVERKEEPER, SPOKANE

RIVERKEEPER, RE SOURCES FOR

SUSTAINABLE COMMUNITIES, PACIFIC

COAST FEDERATION OF FISHERMEN’S

ASSOCIATIONS, and INSTITUTE FOR

FISHERIES RESOURCES,

Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and GINA McCARTHY,

Administrator, United States Environmental

Protection Agency,

Defendants.

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No. 2:13-cv-01839-JCC

PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND

MEMORANDUM IN SUPPORT

THERETO

ORAL ARGUMENT REQUESTED

NOTE ON MOTION CALENDAR:

FRIDAY, MARCH 14, 2014

Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 of 25



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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

I. CLEAN WATER ACT WATER QUALITY STANDARDS

FRAMEWORK....................................................................................................... 2

II. WASHINGTON’S INADEQUATE FISH CONSUMPTION RATE AND

HUMAN HEALTH CRITERIA. ............................................................................ 3

III. EPA HAS REPEATEDLY TOLD ECOLOGY THAT WASHINGTON’S

FISH CONSUMPTION RATE IS INACCURATE AND NOT

PROTECTIVE OF FISH CONSUMERS. .............................................................. 6

PARTIES AND STANDING ......................................................................................................... 8

STANDARD OF REVIEW ............................................................................................................ 9

ARGUMENT ................................................................................................................................ 10

I. EPA HAS DETERMINED THAT A REVISED FISH CONSUMPTION

RATE AND ASSOCIATED HUMAN HEALTH WATER QUALITY

STANDARDS ARE NECESSARY TO MEET THE REQUIREMENTS

OF THE CLEAN WATER ACT. ......................................................................... 10

II. EPA’S DETERMINATION TRIGGERED A MANDATORY DUTY

FOR EPA TO PROPOSE AND PROMULGATE A REVISED

STANDARD. ........................................................................................................ 14

III. EPA HAS NOT ACTED PROMPTLY TO DEVELOP PROTECTIVE

STANDARDS....................................................................................................... 15

IV. WATERKEEPERS WASHINGTON REQUEST AN ORDER

DIRECTING EPA TO ACT WITHIN A SET TIME. .......................................... 17

CONCLUSION ............................................................................................................................. 18




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TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Liberty Lobby,

477 U.S. 242 (1986) .................................................................................................................10

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................................................10

CORALations v. EPA,

02-cv-1266, Opinion and Order, ECF No. 46 (Aug. 14, 2003) ...............................................11

CORALations v. EPA,

02-cv-1266, Opinion and Order, ECF No. 47 (Aug. 14, 2003) ...............................................11

CORALations v. EPA,

477 F. Supp. 2d 413 (D.P.R. 2007) ..........................................................................................11

Fund for Animals, Inc. v. Espy,

814 F. Supp. 142 (D.D.C. 1993) ..............................................................................................17

Idaho Conservation League, Inc., v. Russell,

946 F.2d 717 (9th Cir. 1991) ...................................................................................................14

Idaho Conservation League v. Browner,

968 F. Supp. 546 (W.D. Wash. 1997) ................................................................................11, 15

Idaho Mining Ass’n, Inc. v. Browner,

90 F. Supp. 2d 1078 (D. Idaho 2000) ......................................................................................15

Nw. Envtl. Advocates v. EPA,

268 F. Supp. 2d 1255 (D. Or. 2003) ..................................................................................14, 15

Raymond Proffitt Found. v. EPA,

930 F. Supp. 1088 (E.D. Pa. 1996) ........................................................................14, 15, 16, 17

U.S. v. Akers,

785 F.2d 814 (9th Cir. 1986) ...................................................................................................17

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) .................................................................................................................17

STATUTES

33 U.S.C. § 303(c)(4)(B) ...............................................................................................................13




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33 U.S.C. § 1251(a) .........................................................................................................................2

33 U.S.C. § 1251(a)(1), (2), and (3) .................................................................................................2

33 U.S.C. § 1313 .................................................................................................................... passim

33 U.S.C. § 1313(a) and (b) .........................................................................................................2, 3

33 U.S.C. § 1313(b) and (c) .............................................................................................................3

33 U.S.C. § 1313(c) .........................................................................................................................3

33 U.S.C. § 1313(c)(4) ........................................................................................................... passim

33 U.S.C. § 1313(c)(4)(B) .............................................................................................................10

33 U.S.C. § 1365 ............................................................................................................................17

33 U.S.C. § 1365(a)(2) .....................................................................................................................8

REGULATIONS

40 C.F.R. § 130.3 .............................................................................................................................2

40 C.F.R. § 130.10(a)(3) ..................................................................................................................2

40 C.F.R. § 131.4 .............................................................................................................................2

40 C.F.R. § 131.5 .............................................................................................................................2

40 C.F.R. § 131.10 ...........................................................................................................................2

40 C.F.R. § 131.11 ...........................................................................................................................2

40 C.F.R. § 131.20 ...........................................................................................................................3

40 C.F.R. § 131.21 ...........................................................................................................................3

40 C.F.R. § 131.36 ...........................................................................................................................4

OTHER AUTHORITIES

78 Fed. Reg. 54,518, 54,521 (Sept. 4, 2013) .................................................................................13

Catherine O’Neill, Fishable Waters, 1 Am. Indian L.J. 181, 184 (2013)........................................4

Fed. R. Civ. P. 56 .........................................................................................................................1, 9

Wash. Admin. Code. § 173-201A-240(5) (2011) ............................................................................4




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Plaintiffs Puget Soundkeeper Alliance, Columbia Riverkeeper, Spokane Riverkeeper, Re-

Sources for Sustainable Communities, Pacific Coast Federation of Fishermen’s Associations, and

Institute for Fisheries Resources (collectively, “Waterkeepers Washington”) move the Court for an

order for summary judgment under Rule 56, Federal Rules of Civil Procedure. In accordance with

Local Civil Rule 7, this Motion is noted for consideration on Friday, March 14, 2014, and oral

argument is requested. This Motion is based upon the Complaint, the Memorandum below, and the

accompanying declarations and exhibits.

INTRODUCTION

This case concerns one of the most fundamental requirements of the Clean Water Act: the

protection of the health of people who consume fish and shellfish, their cultures, and the livelihoods

of fishermen and women. Forty-two years ago the Clean Water Act made the promise to rid our

nation’s waters of toxic pollutants and to restore and protect the “fishable and swimmable”

character of those waters. The Clean Water Act also imposed the necessary requirements to fulfill

those promises on states and the U.S. Environmental Protection Agency (“EPA”). Unfortunately,

long past the timelines set forth in the Clean Water Act, Washington and the nation continue to

struggle to meet those most basic goals, with outdated standards that are inadequate to protect

consumers from toxins like mercury, polychlorinated biphenyls (“PCBs”) and arsenic.

Washington State’s regulatory fish consumption rate and the human health water quality

standards based on that rate fail to protect consumers of fish and shellfish in Washington.

Numerous studies demonstrate that people in Washington, especially people who fish and Native

and Asian/Pacific-Islander communities, consume orders of magnitude more fish and shellfish than

Washington estimates. Because Washington grossly underestimates fish consumption rates,

Washington allows far more toxins in fish and shellfish than is safe for people to consume in their

actual, normal or customary amounts. While EPA has repeatedly communicated its disapproval of

the inadequate standard to Washington, Washington has not moved to a more protective standard




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and EPA has not promulgated a protective standard in its place. EPA has therefore failed to meet its

oversight obligations in that regard, continuing to leave Washington consumers exposed to unsafe

levels of toxins.

Waterkeepers Washington moves for summary judgment against Defendants U.S.

Environmental Protection Agency and Administrator Gina McCarthy. EPA and the Administrator

have failed to comply with the nondiscretionary obligation under 33 U.S.C. § 1313(c)(4) to

promptly promulgate revised human health criteria based on an accurate fish consumption rate for

Washington that adequately protects the fishable and swimmable uses required by the Clean Water

Act. Waterkeepers Washington requests an order from the Court requiring EPA to promptly

promulgate a proposed revised fish consumption rate and human health water quality criteria for

Washington within 90 days of the Court’s order, and to finalize the revised rate and criteria within

90 days thereafter (180 days total from date of Court’s order).

BACKGROUND

I. CLEAN WATER ACT WATER QUALITY STANDARDS FRAMEWORK.

The overarching commitment of the Clean Water Act is “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To that

end, the Clean Water Act sets national goals to eliminate all discharges of pollutants by 1985, to

attain water quality which provides for the protection and propagation of fish and shellfish by 1983

(the “fishable” goal), and sets national policy to prohibit toxic pollutants in toxic amounts.

33 U.S.C. § 1251(a)(1), (2), and (3). In order to ensure the attainment of these goals and

implementation of this policy, the Clean Water Act imposes an obligation on states, with EPA in an

oversight role, to develop water quality standards comprised of narrative or numeric water quality

criteria sufficient to protect designated uses such as fishing or recreation. 33 U.S.C. § 1313(a) and

(b). See also, 40 C.F.R. §§ 130.3, 130.10(a)(3), 131.4, 131.5, 131.10 and 131.11.

States have the first obligation and opportunity to promulgate water quality standards that




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are then submitted to EPA for review and to approve or disapprove. 33 U.S.C. § 1313(a) and (b);

40 C.F.R. § 131.21. States are thereafter required to review their water quality standards not less

than once every three years, to subject that review to a public process, and to submit the results of

that review and any proposed changes to EPA, again for review and approval (generally referred to

as the “triennial review”). 33 U.S.C. § 1313(c); 40 C.F.R. § 131.20. If a state fails to promulgate

standards adequate to meet the requirements of the Clean Water Act, or fails to revise a standard

after EPA disapproves, EPA is required to step in and promulgate the necessary standard.

33 U.S.C. § 1313(b) and (c). Plainly, through the triennial review requirement and EPA’s

independent review authority, Congress meant to ensure that up-to-date and protective standards

would be in place regardless of a state’s inability or refusal to meet its clean water obligations.

Moreover, EPA has independent authority to ensure that a state’s standards are up to date

and adequate to meet the requirements of the Clean Water Act. 33 U.S.C. § 1313(c)(4). At any

time, when “the Administrator determines that a revised or new standard is necessary to meet the

requirements” of the Clean Water Act, EPA “shall promptly prepare and publish proposed [revised]

regulations.” 33 U.S.C. § 1313(c)(4) (emphasis added). Again, the Clean Water Act structures the

relationship such that EPA assumes the role of issuing standards that comply with the Clean Water

Act even when the state has failed to do so.

II. WASHINGTON’S INADEQUATE FISH CONSUMPTION RATE AND HUMAN

HEALTH CRITERIA.

Protective human health water quality standards based on an accurate fish consumption rate

are crucial protections for the people in Washington who eat fish and shellfish. One of the ways

water pollution adversely affects human health is through the consumption of fish and shellfish that

have accumulated toxic water pollutants such as mercury, lead, or PCBs. Toxins, once entering the

water, can accumulate in fish and shellfish tissue, ultimately exposing humans. See Washington

Dep’t of Ecology Technical Support Document, Version 2.0, at xiii, relevant portions attached to

Declaration of Janette K. Brimmer as Ex. A, entire document available at




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https://fortress.wa.gov/ecy/publications/publications/1209058.pdf. See also Brimmer Decl., Ex. B,

EPA, Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human

Health (2000) at 5-1, also available at http://perma.cc/0Ug1xn41Q88, (“Human Health Guidance”).

Therefore, a water quality standard for toxins must be set to ensure that humans can safely consume

fish and shellfish and not overexpose themselves to accumulative toxins. See, Brimmer Decl.,

Ex. C, National Environmental Justice Advisory Committee, Fish Consumption and Environmental

Justice (2002), at 11 and 13, also available at http://perma.cc/0D64qSMD6s8 (“Environmental

Justice Report”). In order to set a proper standard, an agency must determine the amount of fish

people in the state consume daily—the fish consumption rate. If the rate is set too low, people will

be exposed to unhealthy, perhaps even dangerous, levels of toxins when consuming their normal or

culturally-customary amount of fish or shellfish. Environmental Justice Report at 14-15; 24.

Washington’s fish consumption rate is set at 6.5 grams per day (“g/day”), approximately one

bite-size piece of fish, which is cumulatively approximately one fish meal per month (slightly under

8 oz. of fish per month). 40 C.F.R. § 131.36 (“National Toxics Rule”); Wash. Admin. Code. § 173-

201A-240(5) (2011) (adopting National Toxics Rule). Washington is only one of three states,1 that

continues to use the long-discredited 6.5 g/day estimate. Catherine O’Neill, Fishable Waters, 1 Am.

Indian L.J. 181, 184 (2013).

As early as 2000, EPA directed states to end reliance on the National Toxics Rule and to

update fish consumption rates and accompanying human health criteria based on the best available

local consumer data. Human Health Guidance at 1-1. In the Human Health Guidance, EPA made

its intentions known early in the document:

1 Idaho is among the states that still uses the 6.5 g/day fish consumption rate, and EPA recently

disapproved Idaho’s attempt to raise its fish consumption rate to only 17.5 g/day, finding that a

higher rate was needed. See Brimmer Decl., Ex. D, Letter from Michael A. Bussell, Director,

EPA Region 10, Office of Water and Watersheds, to Barry Burnell, Water Quality Programs

Administrator, Idaho Department of Environmental Quality (May 10, 2012).




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The Agency intends to use the 2000 Human Health Methodology both to develop

new [Ambient Water Quality Criteria (“AWQC”)] for additional pollutants and to

revise existing AWQC. Within the next several years, EPA intends to focus on

deriving AWQC for chemicals of high priority (including, but not limited to,

mercury, arsenic, PCBs, and dioxin). Furthermore, EPA anticipates that 304(a)

criteria development in the future will be for bioaccumulative chemicals and

pollutants considered highest priority by the Agency. The 2000 Human Health

Methodology is also intended to provide States and authorized Tribes flexibility

in establishing water quality standards by providing scientifically valid options for

developing their own water quality criteria that consider local conditions. States

and authorized Tribes are strongly encouraged to use this Methodology to derive

their own AWQC.

Human Health Guidance at 1-1. EPA further directed:

that priority be given to identifying and adequately protecting the most highly

exposed population. Thus, if the State or Tribe determines that a highly exposed

population is at greater risk and would not be adequately protected by criteria

based on the general population, and by the national 304(a) criteria in particular,

EPA recommends that the State or Tribe adopt more stringent criteria using

alternative exposure assumptions.

Human Health Guidance at 2-2. EPA directed states to utilize a preferred hierarchy in determining

exposure rates from fish consumption when states develop human health criteria for water quality

with the use of local data on specific, actual consumption rates, being the highest and best source of

information to underlie the criteria development. Id. at 4-24 to 4-27.

Soon after EPA issued its Human Health Guidance, a federal advisory committee on

Environmental Justice issued a report on the need for states to ensure that all populations are

protected, especially those with particularly high fish consumption rates for cultural, religious,

social, and/or economic reasons. Brimmer Decl., Ex. C. The Environmental Justice Report

emphasized that, for many native communities and/or communities of color, fishing and eating fish

is more than simply an inexpensive way to feed one’s family or an option for recreation. In fact, the

report described how sharing and eating fish is an integral part of many communities’ cultures,

religion, or social network and as such, larger amounts of fish may be consumed by members of the

community than had previously been assumed by state or federal regulators. Id. at 2-13. The report

therefore also emphasized the need to use actual data for fish and shellfish consumers in the state




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and to set standards that are protective of a state’s varied communities. Id. at 30-32. Surveys of and

data from Washington communities—Indian Tribes and the Asian/Pacific-Islander Communities in

King County—figure prominently in the Environmental Justice Report. See id. at pp. 8-9, 12, 14-

15, 27 (Table 1), 29. The Washington Department of Ecology understands that many different

communities in Washington are consuming far more than 6.5 g/day of fish and shellfish. See

Brimmer Decl., Ex. A, pp. xv-xvii; 3; 46-67; 71-73.

Similarly, as the enclosed declarations show, Washington has a thriving commercial and

recreational fishery and those individuals are also eating fish well above the paltry one meal a

month standard for which they are protected from toxins under Washington’s outdated standard.

All told, fishermen and women in Washington caught about 190,566 metric tons of fish and

shellfish in 2012, with an initial ex vessel value of nearly $302 million. Glen Spain Decl. ¶ 6.

Recreational fishermen often eat fish and shellfish in amounts far exceeding Washington’s 6.5 g/day

fish consumption estimate even though many have reduced the amount of fish they eat to avoid

toxics. See Matthew Warning Decl. ¶¶ 5-11 (describing spearfishing and eating lingcod and other

fish); Michael Harves Decl. ¶¶ 7-8 (describing fishing for bass and other fish); Roben White Decl.

¶¶ 7-9 (describing fishing and eating fish from the Columbia/Willamette and its Tributaries, the

inland lakes in Washington, and Washington’s Coastal Rivers).

In sum, the best available data in Washington show that the actual fish consumption rate for

many (possibly most) people in the state is far in excess of the 6.5 g/day estimate used by

Washington, with some communities consuming up to 200, 300, and even up to 500 g/day. See

Environmental Justice Report at 15 & n.35, 38, 50 & n.136, 51 & n.138, 54.

III. EPA HAS REPEATEDLY TOLD ECOLOGY THAT WASHINGTON’S FISH

CONSUMPTION RATE IS INACCURATE AND NOT PROTECTIVE OF FISH

CONSUMERS.

Since EPA’s notification to states in 2000 that they should move away from the National

Toxics Rule and the inaccurate, nonprotective 6.5 g/day fish consumption rate, EPA has sent several




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letters and emails to the Washington Department of Ecology (“Ecology”) specifically informing

Ecology that Washington’s fish consumption rate and attendant human health water quality

standards are inadequate to protect designated uses (catching and eating fish) under the Clean Water

Act. In those communications, EPA has repeated that a new fish consumption rate based on readily

available data is necessary and instructed Ecology to act quickly to revise its rate and standards. On

November 10, 2010 Jannine Jennings, Manager of EPA Region 10’s Water Quality Standards Unit,

notified Ecology in an email to “move forward with revisions to the human health criteria in order

to incorporate a higher fish consumption rate.” Brimmer Decl., Ex. E. On December 16, 2010,

EPA formally commented on Washington’s triennial water quality standards review, stating “EPA

believes that a fish consumption rate of 6.5 grams per day is not reflective of fish and shellfish

consumers in the State of Washington.” Brimmer Decl., Ex. F, at 2. EPA reminded Ecology that

EPA advised states to move away from the 6.5 g/day rate in 2000 and that Ecology should examine

EPA’s most recent criteria documents and other studies to determine the appropriate level for

Washington’s fish consumption rate. Id.

On January 17, 2012, EPA sent a letter to Kelly Susewind of the Ecology Water Quality

Program and Jim Pendowski of the Ecology Toxics Cleanup Program, commenting on Ecology’s

draft Technical Support Document for Sediment Standards, which standards also included and

relied upon the fish consumption rate as an important component of sediment quality standards.

Brimmer Decl., Ex. G. In the letter, EPA repeated its previous statements that human health criteria

must protect designated uses, must be scientifically based, and that local data is the preferred

foundation for fish consumption rates. Id. EPA also repeated that “several studies of Northwest

populations indicate [Washington’s 6.5 g/day] is not reflective of the amount of fish and shellfish

consumed by some in the state of Washington” and is not consistent with EPA’s 2000 guidance. Id.

at 2. EPA went on to state that it “believes the information is currently available to make decisions

on these matters and requests Ecology to quickly move through the process necessary to do so.” Id.




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at 3.

On September 6, 2012, EPA Regional Administrator Dennis McLerran wrote to Ecology

Director Ted Sturdevant again outlining that Washington’s fish consumption rate is inaccurate and

inadequate to protect fish and shellfish consumers, noting specifically that “surveys demonstrate

that tribal and other high fish consuming residents are eating fish at rates significantly higher than

the current default rates.” Brimmer Decl., Ex. H at 1. Administrator McLerran noted further that

EPA strongly supported adoption of new standards in Oregon based on a fish consumption rate of

175 g/day. Id.

Finally, most recently, Regional Administrator McLerran bluntly and plainly asserted in a

letter to Ecology’s current Director, Maia Bellon that

[t]he best available science includes evidence of consumption rates well above 6.5

grams per day among high fish consumers and shows that the human health

criteria currently in effect for clean water purposes in Washington are not

sufficiently protective.

Brimmer Decl., Ex. I at 1. Administrator McLerran went on to note that “there are scientifically

sound regional and local data available in Washington that are sufficient for Ecology to move

forward in choosing a protective and accurate fish consumption rate at this time.” Id.

PARTIES AND STANDING

This case arises under the citizen-suit provision of the Clean Water Act, which provides a

cause of action in federal district court for citizens to enforce EPA’s mandatory obligations under

the Act. 33 U.S.C. § 1365(a)(2). Waterkeepers Washington is comprised of organizations whose

members have business, recreational and fish consumption interests resulting in concerns regarding

Washington’s inadequate and unsafe fish consumption rate and attendant human health water

quality criteria. Id. The organizations’ missions are to advocate for clean and healthy, “fishable,”

waters in the State of Washington and the Columbia Basin. See Declarations of Brett

VandenHeuval, Chris Wilke, Bart Mihailovich, Glen Spain, and Wendy Steffensen. In addition to

their organizational concerns regarding Washington’s weak protections for fish consumers, staff in




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these organizations also consume fish and shellfish and they are personally injured by the attendant

health risks to themselves and their families. See Brett VandenHeuval Decl. ¶¶ 19-20; Chris Wilke

Decl. ¶¶ 17, 21-23, Katelyn Kinn Decl. ¶¶ 16-22, Bart Mihailovich Decl. ¶¶ 20-23, Glen Spain

Decl. ¶ 19, and Wendy Steffensen Decl. ¶¶ 17-18.

Moreover, the various Waterkeeper Washington member declarants describe in detail their

consumption of Washington-origin fish along with economic, recreational, and other benefits to

healthy fish in Washington. For example, Puget Soundkeeper Alliance member Matthew Warning

regularly spearfishes for lingcod and other fish. Matthew Warning Decl. ¶¶ 5-11. He was

devastated to learn through testing of fish he caught that the toxicity levels were dangerously high

and has subsequently had to choose between not eating the fish he catches and exposing himself to

harmful toxins. Id. ¶¶ 9-18. Jeremy Brown, a commercial fisherman and member of RE Sources

for Sustainable Communities, depends on fishing as his sole source of income. Jeremy Brown

Decl. ¶ 3. In addition to depending on the availability of healthy fish for his livelihood, Mr. Brown

eats fish from his catch at nearly twenty times the level estimated by Washington. Id. ¶¶ 24-25.

Other members of Waterkeepers Washington have given up fishing and eating their catch or have

greatly reduced doing so because of their concerns about toxics in fish in Washington. Michael

Harves Decl. ¶ 8; Roben White Decl. ¶¶ 11-13; John Green Decl. ¶¶ 6-7. (This is consistent with

some of the information reported to the Environmental Justice advisory committee where members

of some native tribes report suppressed intake of fish either because of threatened or endangered

stocks or over concern for their health. Brimmer Decl. Ex. C, Ch. 1.G. p. 43-49). In addition to

being a recreational activity for Columbia Riverkeeper Roben White, consuming fish is a part of his

religion. Roben White Decl. ¶¶ 8. Mr. White continues to fish approximately twelve times per

month and eats three fish meals per week, id. ¶ 9 while worrying about his exposure.

STANDARD OF REVIEW

Summary judgment is appropriate if there is no genuine issue of material fact and the




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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its initial burden,

however, the opposing party must then set forth specific facts showing that there is some genuine

issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).

ARGUMENT

There are no facts in dispute necessitating a trial in this case, making summary judgment

appropriate. The question to be determined is whether EPA’s repeated communications to Ecology

that Washington’s fish consumption rate is inadequate, constitute a determination under 33 U.S.C.

§ 1313(c)(4)(B) that “a revised or new standard is necessary to meet the requirements” of the Clean

Water Act. The law is plain that upon making such a determination, “[t]he Administrator shall

promptly prepare and publish proposed regulations setting forth a revised or new water quality

standard for the navigable waters involved.” Id. § 1313(c)(4). In that regard, there is also no

dispute that EPA has not prepared and published a revised fish consumption rate and attendant

human health criteria for Washington; EPA is, therefore, in violation of a mandatory duty under

33 U.S.C. § 1313(c)(4).

I. EPA HAS DETERMINED THAT A REVISED FISH CONSUMPTION RATE AND

ASSOCIATED HUMAN HEALTH WATER QUALITY STANDARDS ARE

NECESSARY TO MEET THE REQUIREMENTS OF THE CLEAN WATER ACT.

On multiple occasions, EPA has unequivocally communicated to Ecology that

Washington’s fish consumption rate is inadequate, that Washington is failing to protect consumers

and designated uses, and that a revised rate and standards are necessary to ensure the requirements

of the Clean Water Act are met. See Brimmer Decl., Exhibits F-I, in particular. Few courts have

been called upon to consider the elements of a 33 U.S.C. § 1313(c)(4)(B) determination, with one

court addressing the issue on analogous facts. That district court found that to constitute a

determination, the communication must (1) be from an individual who is authorized to




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communicate on behalf of EPA; and (2) must make clear that the state’s standards do not comply

with the Clean Water Act. See CORALations v. EPA, 477 F. Supp. 2d 413, 417 (D.P.R. 2007) (ECF

No. 79) (citing CORALations v. EPA, 02-cv-1266, Opinion and Order at 10, ECF No. 47 (Aug. 14,

2003) (copy attached as Ex. A).2 In CORALations, the court, on summary judgment, found EPA’s

letter constituted a determination under 33 U.S.C. § 1313(c)(4) where the Director of EPA’s

Regional Water Management Division wrote to Puerto Rico “in such a way as to give the

impression that he wrote on behalf of the EPA.” CORALations, Opinion and Order at 10, ECF No.

47. In that case, EPA argued that because the letter regarding Puerto Rico’s revised standards was

sent by Region II’s Water Management Division Director, and not by the Regional Administrator, it

was not really an act by EPA and therefore did not trigger mandatory duties. CORALations,

Opinion and Order at 10, ECF No. 47 (Defendants claim that the EPA has never issued a formal

decision on the WQS because any decision was issued by a “staff-level” employee). The court

rejected the argument, finding that EPA regularly relies upon staff-level communication to approve

or disapprove state water quality standards and that the author of the letter in question was plainly

representing EPA in his communication. Id. at 10-11 (citing Idaho Conservation League v.

Browner, F. Supp. 546, 547 (W.D. Wash. 1997)). The court also found it unlikely that

“administrator” as used in the statute, was meant to have such a strict application, citing to a case

where the D.C. Circuit found that “Secretary” clearly referred to an entire department, not just the

individual. CORALations v. EPA, 02-cv-1266, Opinion and Order at 6, ECF No. 46 (Aug. 14,

2003) (copy attached as Ex. B), (citing to Salleh v. Christopher, 85 F.3d 689, 693 (D.C. Cir. 1996)).

The CORALations court applied a logical and reasonable reading to the letter, EPA practice, and the

intent of the statute.

In EPA Region 10, which includes Alaska, Idaho, Oregon, and Washington, EPA has made

§ 1313(c)(4) negative determinations through letters at the staff level from the Director of the Office

2 The court in CORALations issued three orders relevant to this case—ECF Nos. 46, 47, and

79—which are distinguished herein by ECF number.




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of Water and Watersheds on two occasions. On June 1, 2010, EPA disapproved Oregon’s water

quality standards, and on May 10, 2012, EPA disapproved Idaho’s water quality standards

submission. See Brimmer Decl., Ex. J (Letter from Michael A. Bussell, Director, EPA Region 10

Office of Water and Watersheds, to Neil Mullane, Water Quality Division Administrator, Oregon

Department of Environmental Quality (June 1, 2010)); Brimmer Decl., Ex. D (Letter from

Michael A. Bussell, Director, EPA Region 10 Office of Water and Watersheds, to Barry Burnell,

Water Quality Programs Administrator, Idaho Department of Environmental Quality (May 10,

2012)).

The text of the four letters and one email from EPA in this case, two of which were from

staff overseeing and with authority over state water quality standards programs, and two from the

Regional Administrator himself, leaves no doubt that the letters were sent on behalf of EPA and

stated clearly that Washington’s outdated 6.5 g/day fish consumption rate is not protective of

designated uses and that a revised rate and standards are necessary to comply with the Clean Water

Act. In particular, EPA said:

“The best available science includes evidence of consumption rates well above 6.5

grams per day among high fish consumers and shows that the human health criteria

currently in effect for clean water purposes in Washington are not sufficiently

protective.” Brimmer Decl., Ex. I at 1 (June 21, 2013 Letter).

“[T]here are scientifically sound regional and local data available in Washington that

are sufficient for Ecology to move forward in choosing a protective and accurate fish

consumption rate at this time.” Id. at 1.

“[S]urveys demonstrate that tribal and other high fish consuming residents are eating

fish at rates significantly higher than the current default rates.” Brimmer Decl., Ex. H

at 1 (Sept. 6, 2012 Letter).

“The best available science now in-hand demonstrates that current standards are not

based on realistic consumption rates for high fish consumers.” Id.

“EPA believes that a fish consumption rate of 6.5 grams per day is not reflective of

fish and shellfish consumers in the State of Washington.” Brimmer Decl., Ex. F at 2

(Dec. 16, 2010 Comment Letter).




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“Ecology should examine the most recent EPA criteria documents as well as other

technical developments and studies to determine an appropriate fish consumption rate

that would result in criteria protective of the State’s designated uses.” Id. at 2.

“As identified in Ecology’s draft [technical support document], several studies of

Northwest populations indicate that [Washington’s 6.5 g/day fish consumption] is not

reflective of the amount of fish and shellfish consumed by some in the state of

Washington.” Brimmer Decl., Ex. G at 2 (Jan. 17, 2012 Letter).

“While we understand the need for continued coordination with your stakeholders

and the Tribes, we encourage you to quickly incorporate this information into your

rulemaking process and move forward with adopting revised criteria.” Id. at 3.

“EPA believes the information is currently available to make decisions on these

matters and requests Ecology to quickly move through the process necessary to do

so.” Id. at 3.

EPA urges Ecology to “move forward with revisions to the human health criteria in

order to incorporate a higher fish consumption rate.” Brimmer Decl., Ex. E (Nov. 10,

2010 Email).

These communications demonstrate that EPA has determined that Washington’s 6.5 g/day fish

consumption rate is inadequate and that a revised standard is necessary to comply with the Clean

Water Act.3

EPA may argue that these communications were merely suggestions to Ecology and that

EPA has authority to nudge the state without triggering a mandatory duty. This position, however,

is untenable in light of the volume, tenor, and clarity of EPA’s pronouncements that Washington’s

fish consumption rate is inaccurate, not in keeping with known facts, and inadequate to protect

consumers of fish. EPA has repeatedly indicated its determination that Washington’s standards are

not supported by available data and do not comply with the Clean Water Act. EPA has

communicated in no uncertain terms on multiple occasions that Washington’s fish consumption rate

3 EPA has recently proposed, but has not finalized, a rule that would add a requirement that a

determination be signed by the Administrator and include a statement that it is ‘officially’ a

determination under 33 U.S.C. § 303(c)(4)(B). Water Quality Standards Regulatory

Clarifications, 78 Fed. Reg. 54,518, 54,521 (Sept. 4, 2013). It appears from this proposal, the

EPA does not think that “administrator” in the Clean Water Act is literal or need be read literally,

regarding determinations on adequacy of water quality standards.




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is not protective and yet the state still drags its feet. There is nothing about the situation here that

endangers EPA’s ability to give assistance and guidance to a state short of making a determination.

II. EPA’S DETERMINATION TRIGGERED A MANDATORY DUTY FOR EPA TO

PROPOSE AND PROMULGATE A REVISED STANDARD.

The plain language of the Clean Water Act and case law shows that upon making a

determination, EPA is required to propose and promulgate a revised fish consumption rate and

human health standard from that rate, for Washington. EPA “shall promptly prepare and publish

proposed regulations setting forth a revised or new water quality standard . . . in any case where the

Administrator determines that a revised or new standard is necessary to meet the requirements of the

[Clean Water Act].” 33 U.S.C. § 1313(c)(4). The duty is mandatory. See Nw. Envtl. Advocates v.

EPA, 268 F. Supp. 2d 1255, 1260 (D. Or. 2003) (citing Idaho Conservation League, Inc., v. Russell,

946 F.2d 717, 720 (9th Cir. 1991)). There is no Ninth Circuit case law suggesting otherwise. See

Idaho Conservation League, Inc., 946 F.2d at 720 (“There is no case law suggesting Section 303(c)

leaves the Administrator any discretion to deviate from this apparently mandatory course.”).

That this duty is mandatory is consistent with the Clean Water Act’s overarching

framework. States have the first opportunity to promulgate adequate water quality standards, and

EPA provides a backstop for states’ efforts such that inadequate state standards are replaced by

standards EPA issues soon after they are found to be inadequate. See 33 U.S.C. § 1313; Nw. Envtl.

Advocates, 268 F. Supp. 2d at 1261; Raymond Proffitt Found. v. EPA, 930 F. Supp. 1088, 1101-02

(E.D. Pa. 1996). If EPA’s duty were not mandatory, EPA inaction would allow unlawful standards

to remain in place indefinitely, with no check on state standards EPA has concluded are deficient.

See Nw. Envtl. Advocates, 268 F. Supp. 2d at 1261. That situation is entirely contrary to the overall

structure of the Clean Water Act (and other environmental laws such as the Clean Air Act) where

concepts of shared federalism and EPA oversight are integral to ensuring the law is fully-

implemented as intended. EPA’s inaction frustrates the purpose of the Clean Water Act to restore

and maintain “the chemical, physical, and biological integrity of the Nation’s waters.” See Nw.




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Envtl. Advocates, 268 F. Supp. 2d at 1260 (citing 33 U.S.C. § 1251(a)). Rather than leave the states

completely to their own devices, Congress mandated that EPA must maintain a supervisory and

approval role and that if EPA makes a determination that a new or revised standard is necessary to

meet the requirements of the Clean Water Act, EPA is legally obligated promptly to prepare and

publish revised standards.

III. EPA HAS NOT ACTED PROMPTLY TO DEVELOP PROTECTIVE STANDARDS.

Nearly three and a half years after its first communication expressing disapproval of

Washington’s fish consumption rate, EPA has failed to propose a replacement standard and has

given no indication that it has begun working on new water quality standards for Washington.

While the Clean Water Act does not further define “promptly” under 33 U.S.C. § 1313(c)(4), courts

have found EPA to be in violation of its mandatory Clean Water Act duty for delays similar to the

situation here. This Court found that as a matter of law a delay of two years and seven months

constituted a failure “to perform its mandatory duty to promptly prepare and publish water quality

standards.” Idaho Conservation League, 968 F. Supp. at 549. The Court in Idaho Conservation

League ordered EPA to promulgate water quality standards within sixty days of that order, id.,

which the Court later modified to allow sixty days for EPA to propose revised water quality

standards and ninety days to finalize, Idaho Mining Ass’n, Inc. v. Browner, 90 F. Supp. 2d 1078,

1084 (D. Idaho 2000). Similarly, a delay of three years was found to be too long in Nw. Envtl.

Advocates, 268 F. Supp. 2d at 1260-61.

Looking at the text of the statute and its other timelines, the court in Raymond Proffitt

Found. found that “promptly” must signal a condensed time period. Other subsections of § 1313

give “relatively rapid submission-and-approval deadlines,” such as ninety days after a submission

for EPA to disapprove or sixty days to accept, and ninety days for EPA to finalize a proposed rule.

See Raymond Proffitt Found., 930 F. Supp. at 1099. That court found that “promptly” meant EPA

should “begin preparing and publishing the regulations without undue delay” and that “two years is




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clearly too long when matched with the section’s stated deadlines and the provisions.” Id. at 1100.

The court reasoned that this is necessarily the case because states are required to submit updated

water quality standards every three years, and allowing EPA a two-year (or longer, as in this case)

timeframe would effectively moot EPA’s duty to promulgate adequate standards after a disapproval.

See id. Considering the timelines in § 1313, the court found that a delay of nineteen months before

“preparing and publishing proposed regulations is not fulfilling a public duty ‘promptly,’ as

commanded by the Congress.” Id. at 1101.

In this case, over three years without EPA action has elapsed. This is especially surprising

because, as EPA has repeatedly told Washington, the data is readily available to promulgate a

standard that complies with the Clean Water Act. Brimmer Decl., Ex. I at 1 (June 21, 2013 Letter)

(“[T]here are scientifically sound regional and local data available in Washington that are sufficient

for Ecology to move forward in choosing a protective and accurate fish consumption rate at this

time.”); Brimmer Decl., Ex. G at 3 (Jan. 17, 2012 Letter) (“EPA believes the information is

currently available to make decisions on these matters . . . .”). In fact, data from Washington was

repeatedly cited in the Environmental Justice Advisory Committee Report to EPA back in 2002.

See Environmental Justice Report at 15 & n.35, 38, 50 & n.136, 51 & n.138, 54. As was the case in

Raymond Proffitt Found., EPA has the information it needs to move forward with the promulgation

process. See Raymond Proffitt Found., 930 F. Supp. at 1101-02 (“[T]he court has difficulty in

accepting the notion that assembling the relevant documents, developing an agency position,

composing a draft federal register package, writing a final action memo, and finishing the

promulgation process is the monumental, two-year project that Defendants claim it is.”).

Instead of taking prompt action, EPA has waited, apparently in the hope that Washington

would eventually comply and revise its fish consumption rate and water quality standards. The state

process has been delayed repeatedly and Ecology has not yet proposed a revised fish consumption

rate and has not committed to a date certain. Regardless of the years-long (even decades-long,




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considering the 2000 Guidance and information available at that time) approach Washington has

apparently embarked upon, EPA has a mandatory duty to “promptly” prepare and publish revised

standards. Id. at 1098. EPA is not authorized by the Clean Water Act to continue to wait for

Washington to comply with the law. See id. EPA is obligated by statute to step in to protect fish

and shellfish consumers by promulgating a revised fish consumption rate.

IV. WATERKEEPERS WASHINGTON REQUEST AN ORDER DIRECTING EPA TO

ACT WITHIN A SET TIME.

Waterkeepers Washington requests an order from the court directing EPA to “promptly”

promulgate a revised fish consumption rate and human health criteria within 90 days of the court’s

order and to finalize a revised fish consumption rate and human health criteria within 180 days of

the court’s order. This period of time is commensurate with periods set forth in § 1313 for EPA

action and is reasonable given the important human health and environmental justice issues

involved, the delay that has already occurred, and the fact that the underlying work is substantially

advanced with necessary data readily available. Waterkeepers Washington also seeks an award of

their costs and fees incurred in this litigation.

The Clean Water Act provides courts with broad remedial authority to address violations in

citizen suits. See, e.g., U.S. v. Akers, 785 F.2d 814, 823 (9th Cir. 1986); Weinberger v. Romero-

Barcelo, 456 U.S. 305, 320 (1982) (court has broad authority “to order that relief it considers

necessary to secure prompt compliance with the Act”). In fashioning remedies under the Clean

Water Act, courts have recognized “there is a strong public interest in meticulous compliance with

the law by public officials.” Fund for Animals, Inc. v. Espy, 814 F. Supp. 142, 152 (D.D.C. 1993)

(citing Federal Crop. Ins. Corp. v. Merrill, 332 U.S. 380, 387-88, 68 S. Ct. 1, 45 (1947). As the

Ninth Circuit has emphasized, “the public interest requires strict enforcement of the [CWA] to

effectuate its purpose of protecting sensitive aquatic environments.” Akers, 785 F.2d at 823

(emphasis added). Finally, the Clean Water Act authorizes an award of litigation costs and

attorneys’ fees to plaintiffs who bring CWA enforcement actions. 33 U.S.C. § 1365.




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Making the environment “whole” in this case entails ensuring that the ongoing failure of the

state and EPA to protect consumers of fish is corrected as quickly as possible. Both the language of

§ 1313 and courts’ recognition of broad equitable authorities in this regard support an order as

requested by Waterkeepers Washington. Moreover, the history of this case dictates the need for

specific date-certain deadlines for the development and finalization of the revised standards as the

state and EPA have shown a significant reluctance to act within any specific time. It will not serve

the purposes of the Clean Water Act to simply order the EPA to comply with the mandatory duty

that it has already ignored.

CONCLUSION

For the foregoing reasons, Waterkeepers Washington respectfully requests that the Court

grant its motion for summary judgment and that the Court order EPA to develop and finalize revised

fish consumption rate and human health criteria for Washington within 180 days of the court’s

order.

Respectfully submitted this 20th day of February, 2014.

s/ Janette K. Brimmer

JANETTE K. BRIMMER (WSB #41271)

MATTHEW R. BACA (WSB #45676)

Earthjustice

705 Second Avenue, Suite 203

Seattle, WA 98104-1711

(206) 343-7340 | Phone

(206) 343-1526 | Fax

[email protected]

[email protected]

Attorneys for Plaintiffs Puget Soundkeeper Alliance,

Columbia Riverkeeper, Spokane Riverkeeper,

RE Sources for Sustainable Communities, Pacific

Coast Federation of Fishermen’s Associations, and

Institute for Fisheries Resources


CERTIFICATE OF SERVICE

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I am a citizen of the United States and a resident of the State of Washington. I am over 18

years of age and not a party to this action. My business address is 705 Second Avenue, Suite 203,

Seattle, Washington 98104.

I HEREBY CERTIFY that on February 20, 2014, I electronically filed and served the

following documents on the parties:

1. Plaintiffs’ Motion for Summary Judgment and Memorandum in Support Thereof

(including Exhibits A and B);

2. Declaration of Janette K. Brimmer in Support of Plaintiffs’ Motion for Summary

Judgment (including Exhibits A-J);

3. Declaration of Bart Mihailovich in Support of Plaintiffs’ Motion for Summary

Judgment;

4. Declaration of Brett VandenHeuvel in Support of Plaintiffs’ Motion for Summary

Judgment;

5. Declaration of Chris Wilke in Support of Plaintiffs’ Motion for Summary

Judgment;

6. Declaration of Glen H. Spain in Support of Plaintiffs’ Motion for Summary

Judgment;

7. Declaration of Jeremy Brown in Support of Plaintiffs’ Motion for Summary

Judgment;

8. Declaration of John Green in Support of Plaintiffs’ Motion for Summary

Judgment;

9. Declaration of Katelyn Kinn in Support of Plaintiffs’ Motion for Summary

Judgment;

10. Declaration of Matthew James Warning in Support of Plaintiffs’ Motion for

Summary Judgment, including Exhibit A;

11. Declaration of Michael T. Harves in Support of Plaintiffs’ Motion for Summary

Judgment;

12. Declaration of Roben White in Support of Plaintiffs’ Motion for Summary

Judgment; and

13. Declaration of Wendy Steffensen in Support of Plaintiffs’ Motion for Summary

Judgment;

14 [Proposed] Order Granting Plaintiffs’ Motion for Summary Judgment.



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Matthew B. Henjum

Trial Attorney

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

(202) 514-2285 | Phone

(202) 514-8865 | Fax

[email protected]

Attorney for Defendants

via facsimile

via overnight mail

via first-class U.S. mail

via hand delivery

via electronic service by Clerk

via email

Ronald L. Lavigne

Senior Counsel

State of Washington,

Department of Ecology

P.O. Box 40117

Olympia, WA 98504-0117

(360) 586-4608 | Phone

[email protected]

Attorneys for Defendant-Intervenor State of Washington,

Department of Ecology

via facsimile

via overnight mail


via hand delivery


via email

James A. Tupper

Sarah E. Mack

Lynne Cohee

Bradford Doll

Tupper Mack Wells PLLC

2025 First Avenue, Suite 1100

Seattle, WA 98121

(206) 493-2300 | Phone

(206) 493-2310 | Fax

[email protected]

[email protected]

[email protected]

[email protected]

Attorneys for Defendant-Intervenor Northwest Pulp & Paper

Association

via facsimile

via overnight mail


via hand delivery


via email



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Karen M. McGaffey

Margaret C. Hupp

Perkins Coie LLP

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

(206) 359-8000 | Phone

(206) 359-9000 | Fax

[email protected]

[email protected]

Attorneys for Defendant-Intervenor Manufacturing Industrial

Council

via facsimile

via overnight mail


via hand delivery


via email

AND I FURTHER CERTIFY that I have mailed by United States Postal Service the

documents to the following non-CM/ECF participants:

None

I, Catherine Hamborg, declare under penalty of perjury that the foregoing is true and correct.

Executed this 20th day of February, 2014, at Seattle, Washington.


janette k. brimmer (wsb #41271) the honorable ......plaintiffs’ motion for summary judgment and...

Documents