This week saw two important developments in the lawsuit brought by Puget Soundkeeper and other environmental organizations against EPA Region 10 seeking to force EPA to promulgate new water quality standards for Washington that account for higher fish consumption rates:
The first is that the court, not surprisingly, granted Ecology’s motion to intervene earlier this week. This isn’t surprising given the liberal standard for intervention and Ecology’s interest in this lawsuit, although it was done over rather strong objections by the plaintiffs. I think this development is significant to the extent Ecology can directly articulate to the court how complex this issue is and what the agency has been doing in terms of rulemaking efforts over the past few years.
The second development is that the plaintiffs filed a Motion for Summary Judgment today. This motion, if granted, would basically dispose of the entire case and could result in the court ordering EPA to promulgate water quality criteria for toxics for Washington that account for higher fish consumption rates. The motion requests the court order EPA to do so within 180 days. If the motion is granted, we’d conceivably see a rule come out of EPA by the end of 2014. The motion is, not surprisingly, centered on whether EPA has “determined” under Section 303(c)(4)(B) of the Clean Water Act that Washington’s current water quality criteria for toxics are inadequate to meet the goals of the CWA. The motion quotes a number of communications between EPA and Ecology over the years to try and prove the point that EPA has made such a determination. But, I am unaware of any of those communications containing an explicit reference to Section 303(c)(4)(B) of the CWA, nor do those communications state that EPA will promulgate water quality criteria for toxics in Washington if Ecology does not do so. In addition, Ecology has been working–for well over a year now–to promulgate revisions to Washington’s water quality criteria that take into account higher fish consumption rates. However, Ecology is doing so at a pace that is not satisfactory to many environmental groups, including the plaintiffs in this case, who declined Ecology’s invitation to participate in that process. These facts make me think the plaintiffs’ motion will be denied.
The Motion for Summary Judgment is worth the read (available here). The numerous communications between EPA and Ecology that are cited in the motion are available here, but this is a large file that may take a while to download or review. If you have interest in a particular exhibit, drop me an email and I’m happy to pass it along.