PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
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.
___________________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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 Page 1 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -i-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 2 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -ii-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 3 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -iii-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 4 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 5 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 6 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 7 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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).
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 8 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 9 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 10 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 11 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 12 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 13 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 14 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 15 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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).
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 16 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
“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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 17 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 18 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 19 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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,
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 20 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 21 of 25
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND MEMORANDUM IN SUPPORT THERETO
(No. 2:13-cv-01839-JCC) -18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
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
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 22 of 25
CERTIFICATE OF SERVICE
(No. 2:13-cv-01839-JCC) -1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
CERTIFICATE OF SERVICE
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 23 of 25
CERTIFICATE OF SERVICE
(No. 2:13-cv-01839-JCC) -2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
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
Attorneys for Defendant-Intervenor State of Washington,
Department of Ecology
via facsimile
via overnight mail
via first-class U.S. mail
via hand delivery
via electronic service by Clerk
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
Attorneys for Defendant-Intervenor Northwest Pulp & Paper
Association
via facsimile
via overnight mail
via first-class U.S. mail
via hand delivery
via electronic service by Clerk
via email
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 24 of 25
CERTIFICATE OF SERVICE
(No. 2:13-cv-01839-JCC) -3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Earthjustice
705 Second Ave., Suite 203
Seattle, WA 98104
(206) 343-7340
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
Attorneys for Defendant-Intervenor Manufacturing Industrial
Council
via facsimile
via overnight mail
via first-class U.S. mail
via hand delivery
via electronic service by Clerk
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.
Case 2:13-cv-01839-JCC Document 28 Filed 02/20/14 Page 25 of 25