Southern California Alliance of Publicly Owned Treatment Works et al v. United States Environmental Protection Agency et al

MOTION to DISMISS for LACK of JURISDICTION

E.D. Cal.May 10, 2017

EPA’S NOTICE OF ITS MOTION AND MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 PHILLIP A. TALBERT United States Attorney CHI SOO KIM Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Telephone: (202) 514-0375 Facsimile: (202) 514-8865 Attorneys for the United States Environmental Protection Agency and Alexis Strauss, Acting Regional Administrator IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SOUTHERN CALIFORNIA ALLIANCE OF PUBLICLY OWNED TREATMENT WORKS, CENTRAL VALLEY CLEAN WATER ASSOCIATION, NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES, and BAY AREA CLEAN WATER AGENCIES, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ALEXIS STRAUSS, ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX; and DOES 1 to 10, Defendants. Case No. 2:16-cv-02960-MCE-DB EPA’S NOTICE OF ITS MOTION AND MOTION TO DISMISS THE COMPLAINT Date: June 15, 2017 Time: 2:00 p.m. Place: Courtroom 7, 14th Floor Judge: Hon. Morrison C. England, Jr. Case 2:16-cv-02960-MCE-DB Document 14 Filed 05/10/17 Page 1 of 2 EPA’S NOTICE OF ITS MOTION AND MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that, on June 15, 2017, at 2:00 p.m., or as soon thereafter as the matter may be heard, in the courtroom of the Honorable Morrison C. England, Jr. at 501 I Street, Courtroom 7, 14th Floor, Sacramento, California, Defendants United States Environmental Protection Agency and Acting Regional Administrator Alexis Strauss (collectively, “EPA”) will and do respectfully move to dismiss for lack of jurisdiction the Complaint filed by Plaintiffs Southern California Alliance of Publicly Owned Treatment Works (“SCAP”), Central Valley Clean Water Association (“CVCWA”), National Association of Clean Water Agencies (“NACWA”), and Bay Area Clean Water Agencies (“BACWA”). The motion is based on this notice and the accompanying memorandum of points and authorities; any declarations, exhibits, and request for judicial notice filed in support of the motion; together with such oral and/or documentary evidence as may be presented at the hearing on this motion. Respectfully submitted, Dated: May 9, 2017 PHILLIP A. TALBERT United States Attorney /s/ Chi Soo Kim CHI SOO KIM Assistant United States Attorney Dated: May 9, 2017 /s/ Leslie M. Hill LESLIE M. HILL Environmental Defense Section Case 2:16-cv-02960-MCE-DB Document 14 Filed 05/10/17 Page 2 of 2 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 PHILLIP A. TALBERT United States Attorney CHI SOO KIM Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division United States Department of Justice LESLIE M. HILL Environmental Defense Section 601 D Street N.W., Suite 8000 Washington D.C. 20004 Telephone: (202) 514-0375 Facsimile: (202) 514-8865 Attorneys for the United States Environmental Protection Agency and Alexis Strauss, Acting Regional Administrator IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SOUTHERN CALIFORNIA ALLIANCE OF PUBLICLY OWNED TREATMENT WORKS, CENTRAL VALLEY CLEAN WATER ASSOCIATION, NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES, and BAY AREA CLEAN WATER AGENCIES, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ALEXIS STRAUSS, ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX; and DOES 1 to 10, Defendants. Case No. 2:16-cv-02960-MCE-DB EPA’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT Date: June 15, 2017 Time: 2:00 p.m. Place: Courtroom 7, 14th Floor Judge: Hon. Morrison C. England, Jr. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 1 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants United States Environmental Protection Agency and Acting Regional Administrator Alexis Strauss (collectively, “EPA”) respectfully move to dismiss for lack of jurisdiction the Complaint filed by Plaintiffs Southern California Alliance of Publicly Owned Treatment Works (“SCAP”), Central Valley Clean Water Association (“CVCWA”), National Association of Clean Water Agencies (“NACWA”), and Bay Area Clean Water Agencies (“BACWA”). I. INTRODUCTION It is undisputed that Plaintiffs failed to timely file a facial challenge to the June 2010 Guidance within the six-year statute of limitations. 28 U.S.C. § 2401(a). As Plaintiffs have already conceded, “the statute of limitations for a direct challenge to the 2010 Guidance ran in June 2016.” SCAP I, Pls. Mot. Reopen at 7 [ECF No. 96]. After this Court rejected Plaintiffs’ post-judgment attempt in SCAP I to bring a facial claim challenging the 2010 Guidance, Plaintiffs filed this second lawsuit under the Administrative Procedure Act (“APA”), which could be viewed as an untimely, veiled facial challenge to the 2010 Guidance. The Complaint appears to assert a general challenge to unspecified National Pollutant Discharge Elimination System (“NPDES”) permits that use the Test of Significant Toxicity (“TST”). The Court lacks subject matter jurisdiction because Plaintiffs fail to identify a specific final agency action as required by the APA and because Plaintiffs have a remedy at law. Even if Plaintiffs had identified any specific NPDES permit to challenge, the Court lacks jurisdiction over challenges to State-issued NPDES permits because those challenges must be made in state court and the Court lacks jurisdiction over challenges to EPA-issued NPDES permits because those challenges must be made in the Environmental Appeals Board (“EAB”) or the appropriate federal court of appeals. The Court should dismiss the Complaint for lack of jurisdiction. / / / / / / / / / Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 2 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 II. BACKGROUND1 A. Clean Water Act and NPDES Permits The Clean Water Act (“CWA” or the “Act”) was adopted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One goal of the CWA is “that the discharge of toxic pollutants in toxic amounts be prohibited.” Id. § 1251(a)(3). The CWA prohibits the discharge of a pollutant from a point source except in compliance with, among other things, permits issued under the NPDES program. Id. §§ 1311(a), 1342. NPDES permits place limits on the rate, amount, and/or concentration of pollutants that may be discharged and require permittees to monitor their discharges and to file test results and other data with the relevant permitting authority. NPDES permits are issued and administered by EPA or, where authorized by EPA, by a State or tribal agency subject to EPA review. See id. § 1342(a)-(d). California has been granted authority to administer the NPDES program itself. 39 Fed. Reg. 26,061 (July 16, 1973); Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1430 (9th Cir. 1991). The CWA gives States “the primary responsibilit[y] and right[]... to prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b); Barnum Timber Co. v. EPA, 633 F.3d 894, 902 (9th Cir. 2011). Section 304(h) requires EPA to “promulgate 1 In ruling on a Rule 12(b)(1) motion to dismiss, the district court may consider public documents, affidavits submitted by the parties, and documents incorporated by reference in the complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005) (on review of motion to dismiss the complaint that attached a photograph and caption from the defendant’s website, under the incorporation by reference doctrine, the court considered the defendant’s home page and content surrounding the photograph and caption at issue); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003) (“Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.”); Gemtel Corp. v. Cmty. Redevelopment Agency of City of Los Angeles, 23 F.3d 1542, 1544 n.1 (9th Cir. 1994) (affirming dismissal for lack of jurisdiction and concluding that the district court properly considered public documents submitted by the defendant without converting motion to dismiss to a motion for summary judgment); see also Fed. R. Civ. P. 12(d) (conversion to motion for summary judgment for consideration of matters outside the pleading applies to Rule 12(b)(6) motions or Rule 12(c) motions, not Rule 12(b)(1) motions to dismiss for lack of jurisdiction). Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 3 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 guidelines establishing test procedures for the analysis of pollutants that shall include the factors” that must be provided in NPDES permit applications. 33 U.S.C. § 1314(h). B. Whole Effluent Toxicity (“WET”) Testing Whole effluent toxicity (“WET”) is defined as “the aggregate toxic effect of an effluent measured directly by a toxicity test.” 40 C.F.R. § 122.2. WET tests are used to determine effects of toxicity on aquatic organisms, both the acute (severe) and chronic (less severe) effects. Id. § 136.3. WET testing, in short, consists of exposing, in a laboratory setting, living aquatic organisms (plants, vertebrates, and invertebrates) to concentrations of a test sample (e.g., a facility’s effluent) to measure the effect of an effluent test concentration on those organisms’ ability to survive, grow, and reproduce. See, e.g., Final Rule, 60 Fed. Reg. 53,529, 53,532 (Oct. 16, 1995) (the “WET Testing Rule”). The aquatic toxicity test methods for measuring WET were first standardized and approved for use in NPDES monitoring in 1995 and were ratified in 2002. 60 Fed. Reg. at 53,529; see also 67 Fed. Reg. 69,952 (Nov. 19, 2002). The WET Testing Rule added acute toxicity methods and short-term chronic methods for estimating chronic toxicity to Table IA, 40 C.F.R. § 136.3(a), which designates Agency-approved methods for conducting effluent testing. Specific requirements for each of these test methods are presented in three EPA WET test methods manuals that are incorporated by reference into the regulation. 40 C.F.R. § 136.3(a), nn.26-28, § 136.3(b)(7)(viii)-(x). Table II then specifies the required containers, preservation techniques, and holding times for each of the methods. Id. § 136.3(e). The WET test methods manuals recommend, but do not require, certain statistical approaches to be applied to WET test results. 67 Fed. Reg. at 69,954.2 One statistical approach for toxicity not 2 Part 136 does not apply to all WET testing. For example, the West Coast Marine Methods are WET test methods that are not incorporated into Part 136. See 40 C.F.R. § 136.3, Table IA (referring to the Atlantic Ocean and Gulf of Mexico, but not the Pacific Ocean); 67 Fed. Reg. at 69,962. The 2002 Final Rule expressly states that Part 136 does not apply to West Coast WET test methods because, as public comments noted, the organisms in the Pacific Ocean are different from the organisms in the Atlantic Ocean and the Gulf of Mexico. 67 Fed. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 4 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 enumerated in the WET test methods manuals is the TST.3 C. SCAP I Lawsuit Challenges EPA’s Limited Use ATP Approval On February 12, 2014, the California State Water Resources Control Board (“State Board”) requested EPA’s approval of a statewide alternate to the five-concentration WET test procedure under Part 136.4 The State’s requested Alternate Test Procedure (“ATP”) was the two-concentration test design, i.e., to test only one effluent concentration plus a control concentration, when using the TST statistical approach. On March 17, 2014, EPA’s Regional ATP Coordinator approved California’s ATP request. EPA did not approve the use of the TST as a new WET test method because the TST is not a WET test method but rather, a statistical approach that can be used to analyze WET test data. The 40 C.F.R. Part 136 test methods do not require the use of any particular statistical approach for analyzing WET test data. See SCAP I, 9/10/2015 Order at 2:21-22 [ECF No. 61]. On June 25, 2014, Plaintiffs SCAP and CVCWA filed their initial complaint challenging EPA’s ATP Approval under the APA. SCAP v. EPA, No. 2:14-cv-01513 MCE-DB (“SCAP I”). Reg. at 69,962. For this reason, Table IA identifies “the Atlantic Ocean and Gulf of Mexico,” but not the Pacific Ocean. Id. (“Because test procedures for measuring toxicity to estuarine and marine organisms of the Pacific Ocean are not listed at 40 CFR part 136, permit writers may include (under 40 CFR 122.41(j)(4) and 122.44(i)(1)(iv)) requirements for the use of test procedures that are not approved at part 136, such as West Coast WET methods (USEPA, 1995b) on a permit-by-permit basis.”). 3 The WET test methods manuals list the t-test statistical approach, and the TST is a form of the t-test. See Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms § 9.5.1 (Oct. 2002); Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms §§ 11.3.4, 11.3.5.5 (Oct. 2002); Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms §§ 9.2.1, 9.5 (Oct. 2002); 2010 Guidance at xv, 10, App. A, available at https://www3.epa.gov/npdes/pubs/wet_final_tst_implementation2010.pdf. 4 “Five-concentration” refers to a required test condition of certain Part 136 approved WET test methods to test five different concentrations of the effluent plus a control. This requirement is for testing effluents, and does not apply to receiving water. This requirement also does not apply to WET test methods that are not incorporated into Part 136, such as the West Coast WET methods. See supra n.2. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 5 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 Plaintiffs filed an emergency request for a temporary restraining order and a preliminary injunction, which EPA opposed and this Court denied. SCAP I, 7/2/2014 Order Denying TRO [ECF No. 13, 14]. Plaintiffs filed a First Amended Complaint on July 14, 2014, and EPA lodged the administrative record related to the ATP approval on October 15, 2014. SCAP I, FAC [ECF No. 15], EPA Notice of Lodging Administrative Record [ECF No. 22, 23]. The parties then filed cross-motions for summary judgment and Plaintiffs moved for a permanent injunction. SCAP I, Pls. Mot. Summ. Judgt and EPA’s Cross-Mot. Summ. Judgt. [ECF No. 25, 30]. On February 11, 2015, during summary judgment briefing, EPA withdrew its ATP Approval, effective immediately. SCAP I, 2/12/2015 Eugenia McNaughton Decl., Exh. A [ECF No. 40-1]. The Court agreed with EPA that the case was moot due to EPA’s withdrawal of the ATP Approval, granted EPA’s motion for summary judgment, denied Plaintiffs’ motion for summary judgment, and entered judgment for EPA on May 15, 2015. SCAP I, 5/13/2015 Summary Judgment Order, Judgment [ECF No. 51, 52]. Plaintiffs then moved for reconsideration and, in their reply brief, raised a new claim based on a 2010 Guidance document, the NPDES TST Implementation Document (“2010 Guidance”). SCAP I, Pls. Reply Mot. Recons. [ECF No. 57]. The Court ordered supplemental briefing, finding that “the bulk of the argument on the 2010 Guidance is contained in the [reconsideration] Reply brief and thus there is no governmental response to many of Plaintiffs’ claims.” SCAP I, 9/10/2015 Order at 10-11 [ECF No. 61]. After reviewing the supplemental briefing,5 the Court denied Plaintiffs’ motion for reconsideration, holding that the new evidence “would have had no impact on Plaintiffs’ challenge to the ATP approval” and that Plaintiffs did not assert a claim in connection with the 2010 Guidance. SCAP I, 8/22/2016 Order at 9-11 [ECF No. 94]. In order to file a motion to amend the First Amended Complaint to add a new 2010 5 The Court granted NACWA’s motion for leave to file an amicus curiae brief in SCAP I and considered NACWA’s amicus brief in deciding Plaintiffs’ motion for reconsideration. SCAP I, 4/12/2016 Order [ECF No. 87], 8/22/2016 Order at 7 [ECF No. 94]. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 6 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 Guidance claim to challenge the TST, Plaintiffs then moved to reopen the judgment under Rule 59(e) or alternatively under Rule 60(b)(1) due to mistake, inadvertence, and excusable neglect. SCAP I, Pls. Mot. Reopen at 1 [ECF No. 96]. Plaintiffs recognized that the statute of limitations for a direct facial challenge to the 2010 Guidance ran in June 2016. SCAP I, Pls. Mot. Reopen at 7 [ECF No. 96]. The Court denied the motion to reopen under Rule 59(e) as not timely because it was filed on September 2, 2016, more than 15 months after judgment was entered on May 15, 2015. See Fed. R. Civ. P. 6(b)(2), 59(e), 60(c)(1); SCAP I, 10/19/2016 Order [ECF No. 102]. The Court held that Rule 59(e)’s time limit cannot be waived by the court. SCAP I, 10/19/2016 Order at 9 [ECF No. 102]. The Court also denied the motion to reopen under Rule 60(b) for excusable neglect, holding that Plaintiffs’ tactical choice to focus SCAP I on challenging the ATP did not provide a basis for reopening judgment more than one year after summary judgment was granted to EPA. Id. at 10. D. SCAP II Lawsuit Fails to Identify a Final Agency Action Plaintiffs SCAP, CVCWA, BACWA, and NACWA filed this new lawsuit on December 19, 2016 (“SCAP II”). Compl. [ECF No. 1]. Unlike Plaintiffs’ previous challenge in SCAP I, this litigation does not relate to the subject of the ATP (limited use authorization to test only one effluent concentration plus a control concentration when using the TST statistical approach in situations when Part 136 applies) and instead centers on the use of the TST statistical approach generally, rather than a specific final agency action. Plaintiffs allege that unspecified NPDES permits that use the TST constitute “final agency action” subject to APA review: “In this case, the use of the unpromulgated rules in NPDES permits constitutes final agency action ‘by which rights or obligations have been determined, or from which legal consequences will flow.’” Compl. ¶ 4. The Complaint fails, however, to identify any specific “unpromulgated rules in NPDES permits” that form the basis for Plaintiffs’ suit. See Compl. Even if the Complaint did identify specific NPDES permits, this Court lacks jurisdiction, as explained below. The Complaint seeks (1) declaratory relief that the use of “the TST or the Pass/Fail option in NPDES permits constitutes an unlawful underground regulation without promulgating Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 7 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 the use of the TST statistical procedure as a rule, or under an approved ATP” violates the APA; and (2) injunctive relief to enjoin the EPA from “using, implementing, mandating, or approving, allowing, encouraging, or authorizing the use” of the TST for water quality regulation, permitting, and compliance determination purposes. Compl. ¶¶ 56, 58. The Court lacks subject matter jurisdiction over the Complaint because review under the APA is limited to review of final agency actions and there is no final agency action alleged. III. ARGUMENT Because Plaintiffs have failed to timely file a facial challenge to the 2010 Guidance within the six-year statute of limitations, Plaintiffs now assert that this Court has subject matter jurisdiction pursuant to 5 U.S.C. § 702 (providing for judicial review of final agency action under the APA), 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (United States as a defendant), 28 U.S.C. § 2201 (authorizing declaratory relief), and 28 U.S.C. § 2202 (authorizing injunctive relief). Compl. ¶ 6. As explained below, none of these statutes provides an applicable waiver of sovereign immunity for Plaintiffs’ claims. A. Legal Standards Federal courts are courts of limited jurisdiction and may hear a case only if authorized to do so by the Constitution and statute. Kokkonnen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As sovereign, the United States and its agencies may be sued only when Congress has consented to suit and waives sovereign immunity by statute. Fed. Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1448 (2012). A waiver of the United States’ sovereign immunity “cannot be implied but must be unequivocally expressed,” United States v. King, 395 U.S. 1, 4 (1969), and must be construed strictly in favor of the United States. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983). The plaintiff has the burden to prove subject matter jurisdiction and waiver of sovereign immunity. Kokkonnen, 511 U.S. at 377. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 8 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 B. The Court Lacks Subject Matter Jurisdiction Under the Administrative Procedure Act Because There Is No Final Agency Action By EPA Challenged In The Complaint. The Court lacks subject matter jurisdiction under the APA because this Court’s review under the APA is limited to reviewing “final agency action” and the Complaint does not allege a cognizable final agency action by the EPA. 5 U.S.C. § 704; see Compl. Unspecified NPDES permits that use the TST appear to be the final agency action that Plaintiffs challenge in SCAP II: “In this case, the use of the unpromulgated rules in NPDES permits constitutes final agency action ‘by which rights or obligations have been determined, or from which legal consequences will flow.’” Compl. ¶ 4. As an initial matter, the Court lacks jurisdiction because Plaintiffs fail to identify a specific final agency action and Plaintiffs have a remedy at law.6 Even if Plaintiffs had identified any specific NPDES permit, as this Court has already correctly held, the Court lacks jurisdiction over challenges to State-issued NPDES permits because those challenges must be made in state court. SCAP I, 5/13/2013 Summary Judgment Order at 7 [ECF No. 51]. Alternatively, to the extent Plaintiffs seek to challenge any specific EPA-issued NPDES permit, see Compl. ¶ 41, this Court also lacks subject matter jurisdiction because challenges to individual NPDES permits must first be made to the Environmental Appeals Board (“EAB”) and then the appropriate federal court of appeals. 33 U.S.C. § 1369(b)(1)(F) (issuance or denial of NPDES permit by EPA must be made in the appropriate circuit court of appeals within 120 days); 40 C.F.R. §§ 124.19(a)(1), 124.19(a)(3); SCAP v. EPA, 853 F.3d 1076, 1080 (9th Cir. 2017); City of San Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001). 6 Even assuming Plaintiffs are challenging unspecified NPDES permits, Plaintiffs also appear to concede that Plaintiffs CVCWA and BACWA lack standing because none of their members have any NPDES permits with the TST. See Compl. ¶¶ 11, 13, 14. In addition, there is no standing to base a challenge on the 2012 Orange County Sanitation District, Compl. ¶ 41, because the regulated entity- the permit holder- did not challenge the use of the TST in this permit. See 5/9/2017 Stuber Decl., ¶ 3. EPA reserves the right to address these deficiencies should this case survive the present motion to dismiss. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 9 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 1. APA Standards The APA provides for judicial review over “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. A claim under the APA must be brought within six years of the final agency action that is challenged. 28 U.S.C. § 2401(a). The APA is a specific waiver of the United States’ sovereign immunity for actions for non-monetary relief brought under 28 U.S.C. § 1331. See Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir.1992). In order to be “final,” the action “must mark the ‘consummation’ of the agency’s decision-making process” and not be “merely tentative or interlocutory.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997), overruled in part on other grounds. In addition, the action “must be one by which ‘rights or obligations have been determined,’ or from which ‘legal obligations will flow.”’ Id. at 178 (citations omitted). 2. The Court lacks jurisdiction because Plaintiffs fail to identify a specific or discrete final agency action by EPA as required to bring an APA claim. The Court lacks jurisdiction over Plaintiffs’ claims, which are brought under the APA, because Plaintiffs fail to identify a specific or discrete final agency action, which is required for an APA claim. See Norton v. Southern Utah Wilderness All., 542 U.S. 55, 62-64, 124 S. Ct. 2373, 2378-79 (2004); Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 891-94, 110 S. Ct. 3177, 3190-91 (1990) (APA review by court not permitted until “a specific ‘final agency action’ has an actual or immediately threatened effect”); Nevada Ass’n of Counties v. U.S. Dep’t of Interior, No. 15-15620, 2017 WL 1208591, at *1 (9th Cir. Apr. 3, 2017) (not published) (affirming dismissal for lack of jurisdiction where plaintiff “failed to identify a specific final agency action or discrete action unlawfully withheld” required by the APA) (internal citations omitted). The Complaint appears to assert a general challenge to unspecified NPDES permits that allegedly apply rules that have not been promulgated (including but not limited to the 2010 TST Guidance7), whether the NPDES permit is issued by the state or by EPA, including actions 7 EPA disputes that the 2010 TST Guidance is a “rule” and reserves the right to address this deficiency should this case survive the present motion to dismiss. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 10 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 taken “by others” besides EPA. See, e.g., Compl. ¶¶ 3, 4 (“the use of the unpromulgated rules in NPDES permits”), 5, 41, 45, 46, 56. It is unclear what “unpromulgated rules” the Complaint is challenging in addition to the 2010 Guidance and it is unclear what additional “associated methods and procedures” are being challenged. See Compl. ¶¶ 5, 54, 56, 58. The Complaint does not specify which NPDES permits are being challenged, which governmental entity issued these NPDES permits, when the NPDES permits were issued, to whom the permits were issued, whether any enforcement actions have been taken, or whether the NPDES permit is being challenged in a different forum.8 See Compl. Plaintiffs therefore fail to identify a specific or discrete final agency action required to bring their APA claim. As described below, even if Plaintiffs were to cure their failure to identify which NPDES permits they are challenging, this Court would still lack jurisdiction over this action. Further, to the extent Plaintiffs are seeking review of the 2010 Guidance, it is beyond dispute that Plaintiffs failed to timely file a facial challenge to that Guidance.9 Plaintiffs now assert that their SCAP II claims are timely because Plaintiffs have brought an “as applied” challenge to the 2010 Guidance as rulemaking without notice and comment, rather than a direct 8 As described below, this Court lacks jurisdiction over challenges to EPA-issued permits, which cannot be brought in district court. See 33 U.S.C. § 1369(b)(1)(F); 40 C.F.R. §§ 124.19(a)(1), 124.19(a)(3), 124.19(o); SCAP v. EPA, 853 F.3d at 1083 n.4; Whitman, 242 F.3d at 1101. The Complaint only identifies one NPDES permit: the 2012 Orange County Sanitation District permit jointly issued by EPA and California. Compl. ¶ 41. The regulated entity- the permit holder- did not challenge the use of the TST in this 2012 permit in the EAB, the required forum for challenging EPA-issued individual permits. 5/9/2017 Stuber Decl., ¶ 3. In addition, this permit uses West Coast WET methods, which are expressly not incorporated into the Part 136 methods. See supra n.2; 5/9/2017 Stuber Decl., ¶ 3. Therefore, Plaintiffs’ general grievance that the TST must be listed in Part 136 cannot apply to this permit or other NPDES permits that use WET methods that are not incorporated into the Part 136 methods. 9 This Court rejected Plaintiffs’ attempt in SCAP I to bring a new claim post-judgment challenging the 2010 Guidance. SCAP I, 8/22/2016 Order [ECF No. 94]; SCAP I, 10/19/2016 Order [ECF No. 102]. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 11 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 challenge.10 See Compl. ¶¶ 41, 51. This does not solve the Complaint’s jurisdictional defects because Plaintiffs fail to identify a final agency action in which the 2010 Guidance is being applied. See Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997) (“It is possible, however, to challenge a regulation after the limitations period has expired, provided that the ground for the challenge is that the issuing agency exceeded its constitutional or statutory authority. To sustain such a challenge, however, the claimant must show some direct, final agency action involving the particular plaintiff within six years of filing suit.”). 3. Plaintiffs’ challenge to any specific State-issued NPDES permits must be made in state court and this Court lacks jurisdiction over such challenges. Even if Plaintiffs had identified a specific State-issued NPDES permit, the Court lacks jurisdiction over Plaintiffs’ challenge to any California-issued NPDES permits. First, NPDES permits issued by California and its Regional Water Quality Control Boards cannot constitute final agency action subject to judicial review under the APA because these are not EPA’s actions and APA review is limited to reviewing a federal government agency’s final actions. 5 U.S.C. §§ 701(b)(1) (defining “agency” under the APA); see Compl. ¶¶ 2, 4. Second, Plaintiffs’ challenge to California’s NPDES permits must be made in state proceedings and this Court lacks subject matter jurisdiction over a challenge to the requirements in a state NPDES permit. See 40 C.F.R. § 123.30 (judicial review of permits issued by the State is limited to state court); Cal. Water Code §§ 13320, 13321, 13330 (review and petition for stay by state board, and review in superior court); SCAP v. EPA, 853 F.3d at 1081 (“The [NPDES] 10 Plaintiffs’ actual grievance could be viewed as a veiled facial challenge to the 2010 Guidance because Plaintiffs generally challenge the use of the TST statistical approach in NPDES permits, a use that was clearly contemplated when the 2010 Guidance was issued because the 2010 Guidance directly addresses the use of the TST statistical approach in NPDES permits. See 2010 Guidance. As Plaintiffs have already conceded, “the statute of limitations for a direct challenge to the 2010 Guidance ran in June 2016.” SCAP I, Pls. Mot. Reopen at 7 [ECF No. 96]; see 28 U.S.C. § 2401(a). EPA reserves the right to address this deficiency should this case survive the present motion to dismiss. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 12 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 permits issued by the state are subject to administrative and judicial review in accordance with state law.”); Boise Cascade Corp., 942 F.2d at 1430; Shell Oil Co. v. Train, 585 F.2d 408, 411, 414 (9th Cir. 1978) (“The existence of a state judicial forum for the review of the regional board’s action forecloses the availability of the federal forum under the terms of the” APA.); see also SCAP I, 5/13/2013 Summary Judgment Order at 7 [ECF No. 51]. The Clean Water Act gives States “the primary responsibilit[y] and right[]... to prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b); see Boise Cascade Corp., 942 F.2d at 1429; Chevron, U.S.A., Inc. v. Hammond, 726 F.2d 483, 489 (9th Cir. 1984). To that end, Congress encourages States to “assume the major role in the operation of the NPDES program.” Boise Cascade Corp., 942 F.2d at 1429 (quoting Shell Oil Co., 585 F.2d at 410). California has been granted authority to administer the NPDES program itself. 39 Fed. Reg. 26,061 (1973); Boise Cascade Corp., 942 F.2d at 1430. “Under the CWA, California may impose restrictions that exceed the CWA’s minimum requirements and EPA’s regulations. 33 U.S.C. § 1370; 40 C.F.R. § 122.44(d). The [Regional] Board (or the State Board) may take a more aggressive view of the requirements for keeping the state’s waters clean.” SCAP v. EPA, 853 F.3d at 1084. “The California State Water Resources Control Board (State Board) and its various Regional Water Quality Control Boards are responsible for the enforcement of the Act in California and for issuing NPDES permits.” Boise Cascade Corp., 942 F.2d at 1430. This means that California issues NPDES permits for discharges to waters within the State’s jurisdiction, including some of the unspecified NPDES permits generally referenced in the Complaint. “Jurisdiction to review decisions of the California State Board is conferred on California state courts.” Id.; see Cal. Water Code § 13330. Plaintiffs have a remedy at law, they are exercising that remedy by challenging various NPDES permits before the state, and the state proceedings should continue without interference. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 13 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 See EPA’s 5/9/2017 Request for Judicial Notice ¶¶ 1-4 & Exhs. 1-4;11 see also SCAP I, EPA’s 6/30/2014 Request for Judicial Notice [ECF No. 9-2] (Plaintiff SCAP member Camarillo Sanitary District petitions); SCAP I, 12/17/2014 Decl. of Robyn Stuber, Exh. E [ECF No. 30-2 at 22-89] (Plaintiff SCAP member Los Angeles County Sanitation District petition). 4. The Court also lacks jurisdiction over challenges to any specific EPA-issued NPDES permits. To the extent Plaintiffs seek to challenge NPDES permits that have been issued by EPA, see Compl. ¶ 41, this Court also lacks subject matter jurisdiction over these challenges because challenges to an EPA-issued individual NPDES permit must first be made to the EAB within 30 days of the EPA notice of its issuance, and then the appropriate federal court of appeals. 33 U.S.C. § 1369(b)(1)(F); 40 C.F.R. §§ 124.19(a)(1), 124.19(a)(3); SCAP v. EPA, 853 F.3d at 1083 n.4; Whitman, 242 F.3d at 1101. As for EPA-issued general NPDES permits, the appeal must be made in the federal court of appeals within 120 days of issuance. 33 U.S.C. § 1369(b)(1)(F); 40 C.F.R. § 124.19(o). The permit holder for the only EPA-issued NPDES permit identified in the Complaint, Compl. ¶ 41, has not challenged the use of the TST in this permit before the EAB. 5/9/2017 Stuber Decl., ¶ 3. The APA only authorizes judicial review over final agency actions “for which there is no other adequate remedy in a court,” 5 U.S.C. § 704, and because the Clean Water Act provides such a remedy to challenge NPDES permits, an APA challenge is impermissible. Even if brought pursuant to the CWA, such a challenge cannot be brought in district court and must be brought within statutory time limits. See 33 U.S.C. § 1369(b)(1)(F). Thus, even if Plaintiffs were to cure their failure to identify which EPA permits they are challenging, this Court would still lack jurisdiction over this action. / / / / / / 11 EPA concurrently files a Request for Judicial Notice to provide the Court with a sample of the state petitions filed by Plaintiffs challenging certain California-issued NPDES permits that use the TST. See EPA’s 5/9/2017 Request for Judicial Notice. These state petitions were filed by same counsel representing Plaintiffs in SCAP I and SCAP II. Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 14 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 C. The Court Lacks Subject Matter Jurisdiction Under the Federal Question Statute, United States as Defendant Statute, and the Declaratory Judgment Act. 1. The Federal Question Statute Is Not a Waiver of Sovereign Immunity. Plaintiffs cite to the federal question statute, 28 U.S.C. § 1331, as a basis for this Court’s jurisdiction. Compl. ¶ 6. It is well settled that the federal question statute does not provide a general waiver of sovereign immunity. The federal question statute provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This provision merely establishes subject matters that are within the jurisdiction of federal courts to entertain. Hughes v. United States, 953 F.2d 531, 539 n. 5 (9th Cir. 1992) (“A mere assertion that general jurisdictional statutes apply does not suffice to confer jurisdiction when, as in this case, the government did not waive its immunity.”). Where the United States is the defendant, federal subject matter jurisdiction is not enough; there must also be a statutory cause of action through which Congress has waived sovereign immunity. Nordic Village, 503 U.S. at 34; Hughes, 953 F.2d at 539 n.5. Thus, the federal question statute does not itself provide a waiver of sovereign immunity allowing Plaintiffs to bring suit against EPA. 2. The Waiver of Sovereign Immunity in 28 U.S.C. § 1346 Does Not Apply to Plaintiffs’ Claims. Plaintiffs also cite to 28 U.S.C. § 1346 as a basis for this Court’s jurisdiction because the United States is a defendant. Compl. ¶ 6. Section 1346 does contain a limited waiver of sovereign immunity - for civil actions seeking tax refunds and other monetary damages against the United States. 28 U.S.C. § 1346. The limited waiver, however, does not extend to claims for equitable relief. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997). Section 1346, therefore, does not constitute a waiver of sovereign immunity with respect to Plaintiffs’ claims, which specifically seek declaratory and injunctive relief. Cermak v. Babbitt, 234 F.3d 1356, 1361 (Fed. Cir. 2000). Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 15 of 16 EPA’S MEMO ISO ITS MOTION TO DISMISS THE COMPLAINT SCAP v. U.S. EPA (SCAP II), No. 2:16-cv-02960-MCE-DB 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 3. The Declaratory Judgment Act Is Not a Waiver of Sovereign Immunity. Plaintiffs also cite to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, as a basis for this Court’s jurisdiction because the Complaint seeks declaratory and injunctive relief. Compl. ¶ 6. The Declaratory Judgment Act does not waive the United States’ sovereign immunity or provide an independent basis for subject matter jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp., 642 F.3d 849, 853 (9th Cir. 2011); Cal. Shock Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 543 (9th Cir. 2011) (noting that the Supreme Court held that the Declaratory Judgment Act is “procedural only”). The district court’s subject matter jurisdiction “must properly exist independent of the [Declaratory Judgment Act].” Countrywide, 642 F.3d at 853. IV. CONCLUSION The Court should dismiss the Complaint for lack of subject matter jurisdiction. Respectfully submitted, Dated: May 9, 2017 PHILLIP A. TALBERT United States Attorney /s/ Chi Soo Kim CHI SOO KIM Assistant United States Attorney Dated: May 9, 2017 /s/ Leslie M. Hill LESLIE M. HILL Environmental Defense Section Case 2:16-cv-02960-MCE-DB Document 14-1 Filed 05/10/17 Page 16 of 16 Case 2:16-cv-02960-MCE-DB Document 14-2 Filed 05/10/17 Page 1 of 3 Case 2:16-cv-02960-MCE-DB Document 14-2 Filed 05/10/17 Page 2 of 3 Case 2:16-cv-02960-MCE-DB Document 14-2 Filed 05/10/17 Page 3 of 3