Ohio Valley Environmental Coalition v. Horinko

Majority - Goodwin, District Judge

Yes, the Environmental Protection Agency's approval of West Virginia's antidegradation implementation procedures was arbitrary and capricious in several key respects, as the EPA failed to ensure consistency with minimum federal requirements under the Clean Water Act and its own regulations. The court specifically identified seven aspects of West Virginia's program where the EPA's approval was flawed, while affirming six other aspects as reasonable. The court found the EPA's approval arbitrary and capricious for the following reasons: 1. Classification of Kanawha and Monongahela Rivers as Tier 1 waters: The administrative record lacked sufficient evidence to support classifying these river segments as Tier 1, which denies them the more stringent protection of Tier 2. The EPA's justification, based solely on their inclusion on a § 303(d) impaired waters list, was deemed inadequate and inconsistent without further explanation. 2. Exempting discharges from public wastewater treatment plants based on 'net decrease in overall pollutant loading': West Virginia's provision allowed new or expanded discharges if there was a "net decrease in the overall pollutant loading." The court held that the plain meaning of "overall" unambiguously refers to all pollutants taken together, which the EPA itself conceded would be impermissible if it allowed an increase in any individual pollutant parameter. The EPA's attempt to interpret "overall" as meaning "for each pollutant parameter" amounted to an impermissible amendment of the state regulation, rather than a reasonable interpretation. 3. Exempting activities under general Section 402 and Section 404 permits from individual Tier 2 review: West Virginia’s procedures permitted Tier 2 review only at the time a general permit was issued, not for individual discharges under such permits. The court found this arbitrary because Tier 2 review, as required by 40 C.F.R. § 131.12(a)(2), mandates location-specific determinations of economic or social necessity and public participation, which the EPA had previously stated would be "impossible" to conduct effectively at the general permit stage without specific knowledge of discharge locations and impacts. The EPA failed to provide a reasoned analysis for this change in its position. 4. Discretion afforded WVDEP to exempt 'types or classes of activities' from Tier 2 review: A West Virginia provision allowed the WVDEP Secretary to exempt certain activities from Tier 2 review. The court found this inconsistent with federal law because the provision lacked explicit requirements for EPA review and approval, public hearings, and the adoption of toxic pollutant criteria, all of which are mandated by CWA § 303(c) for revisions to water quality standards. 5. Use of 'generally' in Tier 2 protection standards (Section 60-5-5.2): The provision stating that waters "generally" afforded Tier 2 protection if they supported minimum fishable/swimmable uses and had assimilative capacity for some parameters was found arbitrary. The court rejected EPA’s explanation that "generally" accounted for other specific exceptions, finding that those exceptions either meant the water didn't meet the initial criteria or the EPA failed to identify any other valid exceptions. 6. Twenty percent cumulative de minimis standard (Section 5.6.a.1): West Virginia’s procedures allowed for a 20% cumulative reduction in available assimilative capacity from all discharges before Tier 2 review was required. The EPA cited no evidence in the record to justify why a 20% cumulative reduction could still be considered insignificant or trivial, thus failing to meet its burden for a de minimis exception, especially given EPA's prior warnings about cumulative degradation. 7. Numerical criteria for four pollutants (dissolved oxygen, pH, fecal coliform, temperature) in Tier 2.5 (Section 6.3.a.1-4): West Virginia established specific numerical criteria to define "significant degradation" for these four pollutants in Tier 2.5 waters. The EPA approved these criteria without citing any record evidence or providing a scientific basis for why these particular numbers represented truly insignificant degradation. The court affirmed the EPA's approval as reasonable on six other issues, including: the exemption of existing permitted uses from antidegradation review (Section 5.6.a.2) given Tier 2 applies to current water quality; the definition of "achieved" for nonpoint source best management practices as "installed and maintained" (Section 1.5.b); the discretion given to WVDEP to make overall water quality determinations in Section 5.3; the ten percent de minimis standard for individual discharges (Section 5.6.a.1) and for Tier 2.5 waters (Section 60-5-6.3.a), which was supported by EPA guidance; and the water quality trading provisions (Sections 4.8, 5.6.f, 6.3.h, 7.5), as reasonably interpreted to require net water quality improvement in the same stream segment.