American Waterways Operators v. Wheeler

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
AMERICAN WATERWAYS )
OPERATORS, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-02933 (APM)
)
ANDREW WHEELER, Administrator of the )
United States Environmental Protection )
Agency, and UNITED STATES )
ENVIRONMENTAL PROTECTION )
AGENCY, )
)
Defendants, )
)
and )
)
WASHINGTON ENVIRONMENTAL )
COUNCIL, PUGET SOUNDKEEPER, )
FRIENDS OF THE EARTH, AND )
WASHINGTON STATE DEPARTMENT )
OF ECOLOGY, )
)
Intervenor-Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On January 19, 2017, the Environmental Protection Agency (“EPA”), acting pursuant to
Section 312(f)(3) of the Clean Water Act, authorized the State of Washington to declare the Puget
Sound a “No Discharge Zone” (“NDZ”). That designation cleared the way for the State of
Washington to prohibit recreational and commercial vessels from discharging sewage into the
Puget Sound. As a precondition to a state establishing an NDZ, Section 312(f)(3) requires EPA to
“determine[] that adequate facilities for the safe and sanitary removal and treatment of sewage
from all vessels are reasonably available” for the waters at issue. 33 U.S.C. § 1322(f)(3). EPA
made such a “reasonable availability” finding for the waters of the Puget Sound.
American Waterways now seeks to overturn the agency’s decision. Moving for summary
judgment, it argues that EPA’s “reasonable availability” determination was arbitrary and
capricious and violated Section 312(f)(3) of the Clean Water Act for multiple reasons. EPA does
not seek to defend its determination. Instead, EPA now confesses legal error on one challenged
ground, conceding that it erred by authorizing the Puget Sound NDZ without considering the
financial costs of the action. Instead of opposing summary judgment, EPA asks the court to
reconsider its earlier denial of the agency’s motion for voluntary remand. Intervenor-Defendants
Washington Environmental Council, Puget Soundkeeper, Friends of the Earth, and Washington
State Department of Ecology (collectively, “Intervenors”) have stepped in for the agency. They
deny that EPA committed any error, defend EPA’s authorization of the Puget Sound NDZ, and
cross-move for summary judgment.
For the reasons that follow, the court grants in part and denies in part American Waterways’
motion for summary judgment, grants in part and denies in part Intervenors’ motion for summary
judgment, and denies as moot EPA’s motion for reconsideration.
II. BACKGROUND
A. Legal Background
This case concerns the State of Washington’s effort to prohibit recreational and commercial
vessels from discharging sewage into the Puget Sound, an inlet of the Pacific Ocean along
Washington’s northwestern coast. Under the Clean Water Act, EPA is required to set national
“standards of performance for marine sanitation devices” that are “designed to prevent the
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discharge of untreated or inadequately treated sewage into or upon the navigable waters.”
33 U.S.C. § 1322(b)(1). Once EPA promulgates national standards, the standards serve as a floor,
and no state is permitted to “adopt or enforce any statute or regulation” regarding marine sanitation
devices that is less stringent than the national standards. See id. § 1322(f)(1).
In certain circumstances, however, a state may impose greater restrictions on vessel sewage
discharge in the form of a No Discharge Zone, or NDZ. Under Section 312(f)(3), “if any State
determines that the protection and enhancement of the quality of some or all of the waters within
such State require greater environmental protection, such State may completely prohibit the
discharge from all vessels of any sewage, whether treated or not, into such waters.”
Id. § 1322(f)(3). There is, of course, a catch. Before a state can create an NDZ, it must obtain
approval from EPA, which must “determine[] that adequate facilities for the safe and sanitary
removal and treatment of sewage from all vessels are reasonably available for such water to which
such prohibition would apply.” Id. After a state applies for permission to designate an NDZ, EPA
has 90 days to make its determination on the reasonable availability of adequate facilities. Id.
To facilitate EPA’s decision, agency regulations require that a state’s application to create
an NDZ include the following:
(1) A certification that the protection and enhancement of the
waters described in the petition require greater
environmental protection than the applicable Federal
standard;
(2) A map showing the location of commercial and recreational
pump-out facilities;
(3) A description of the location of pump-out facilities within
waters designated for no discharge;
(4) The general schedule of operating hours of the pump-out
facilities;
(5) The draught requirements on vessels that may be excluded
because of insufficient water depth adjacent to the facility;
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(6) Information indicating that treatment of wastes from such
pump-out facilities is in conformance with Federal law; and
(7) Information on vessel population and vessel usage of the
subject waters.
40 C.F.R. § 140.4(a). Additionally, EPA has published extensive guidance for state and local
officials that are interested in establishing NDZs under Section 312(f)(3). See A.R. at 2326–623. 1
B. Factual Background
1. Application for a Puget Sound NDZ
Prior to petitioning EPA for an NDZ, the State of Washington, acting through its
Department of Ecology (“Ecology”), and its partner organizations studied water quality in the
Puget Sound for four years. See A.R. at 57. These studies led Ecology to conclude that federal
marine discharge requirements were insufficient to protect the Puget Sound’s water quality,
primarily because vessels were discharging treated sewage near shellfish beds and swimming
beaches. See id. at 66. The Puget Sound was already facing serious degradation from pollution:
some of the waters of the Puget Sound were “designated as impaired waters under the Clean Water
Act” because of poor water quality indicators, including “high concentrations of fecal indicator
bacteria.” Id. at 67. The Washington Department of Health ultimately closed some public
swimming beaches and shut down 36,000 acres of commercial shellfish harvest beds in the Sound
due to poor water quality. Id. Ecology hoped that securing an NDZ would “complement[] other,
more substantive investments in sewage treatment, onsite systems, stormwater management,
industrial treatment, and agricultural runoff control” that would revitalize the Puget Sound. Id.
at 66.
1
Citations to the Administrative Record (“A.R.”) can be found in the four-volume Joint Appendix, see ECF Nos. 61,
61-1, 61-2, 61-3.
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In July 2016, Ecology requested EPA’s permission to designate the Puget Sound as an
NDZ, submitting a petition that reflected water quality studies, outreach to vessel operators, and
an analysis of the costs and benefits of creating an NDZ. Id. at 57, 68. Ecology also submitted a
supplement to its petition in October 2016, after EPA asked for more information on the
availability of “pumpout” facilities. See id. at 127; id. at 128–45 (Ecology’s October 2016
supplement titled “Commercial Vessel Pumpout Availability in Puget Sound”). As the name
implies, a pumpout facility removes, or “pumps out,” sewage from a vessel.
On November 7, 2016, EPA published notice of its preliminary determination that adequate
facilities for the safe and sanitary removal and treatment of sewage from all vessels were
reasonably available in the Puget Sound. 81 Fed. Reg. 78,141-02. The notice sought public
comment, with the original deadline for comments set for December 7, 2016. Id. at 78,141. On
December 7, after receiving stakeholder requests for additional time, EPA announced that it would
extend the deadline for comments to December 23, 2016. A.R. at 55541.
2. EPA’s Determination
On January 19, 2017, after receiving more than 40,000 comments on Ecology’s
application, id. at 33, EPA published notice of its final determination. It found that “adequate
facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably
available” in the Puget Sound, id. at 1–31.
In its determination, EPA considered separately the availability of sewage pumpout
facilities for recreational and commercial vessels. As to recreational vessels, EPA found that there
were at most 171 recreational vessels per pumpout facility in the Puget Sound. Id. at 5–6. EPA
concluded that this ratio was well below the minimum ratio of 600 recreational vessels per
pumpout facility that the Fish and Wildlife Service recommended was reasonable under the Clean
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Vessel Act, id. at 727, and therefore determined that adequate pumpout facilities were reasonably
available in the Puget Sound for recreational vessels. Id. at 6.
As for commercial vessels, EPA estimated that there were 709 such vessels operating in
the Puget Sound based on a study conducted by the Puget Sound Maritime Air Forum and
information provided by commenters. Id. at 7. In reaching this total, EPA excluded “large,
oceangoing transient commercial vessels that are only in Puget Sound for a short period of time.”
Id. The agency did so after finding that such vessels “have large enough holding tanks to hold
their waste during the time they are in Puget Sound, with some exceptions[,] . . . [and therefore]
do not have a need to pumpout.” Id. EPA then subtracted additional commercial vessels, including
the fleets of the Washington State Ferries, the U.S. military, and the Victoria Clipper, because they
have “dedicated pumpout facilities” and would not use other facilities. Id. at 7, 9. EPA ultimately
determined that there were 631 commercial vessels operating in the Puget Sound that would
require pumpout facilities. Id. at 9.
EPA then found that there were “at least 56 pumpouts available for commercial vessels”
in the Puget Sound, including both stationary and mobile pumpout facilities. Id. Based on the
estimated 631 vessels, this created a ratio of 11 commercial vessels per pumpout facility. Id. In
addition to this 11:1 ratio, EPA “considered the fact that . . . mobile pumpouts provide service
throughout Puget Sound, provide sufficient capacity for commercial vessels, and generally do not
experience dock access issues.” Id. EPA also noted that such mobile pumpout services could be
scheduled by appointment and that service providers had reported that they did not “experience
seasonal fluctuations” in demand. Id. “Given the widespread availability and flexibility of these
services and the overall ratio of 11:1, EPA determine[d] that adequate pumpout facilities for the
safe and sanitary removal and treatment of sewage for commercial vessels are reasonably available
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for the waters of Puget Sound.” Id. at 9–10. EPA’s final decision was published in the Federal
Register on February 13, 2017. Id. at 45–48.
With EPA’s sign off in hand, Ecology established an NDZ in the Puget Sound. See Wash.
Admin. Code § 173-228-030. Ecology established two effective dates for the NDZ. The default
effective date for “all vessels” was May 10, 2018. See id. § 173-228-050. However, for “[t]ug
boats, commercial fishing vessels, small commercial passenger vessels, and National Oceanic and
Atmospheric Administration (NOAA) research and survey vessels,” Ecology “delayed
implementation . . . [for] five years,” meaning an effective date for such vessels of May 10, 2023.
Id. The members of Plaintiff American Waterways, “a national trade association for the tugboat,
towboat, and barge industry,” are subject to the five-year delayed implementation. See Pl.’s Mot.
for Summ. J., ECF No. 46 [hereinafter Pl.’s Mot.], at 4, 12.
C. Procedural Background
In December 2018, American Waterways brought this suit, alleging that EPA’s
determination was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C.
§ 706, and that EPA was not authorized to issue a determination on Ecology’s purportedly
defective petition under Section 312(f)(3) of the Clean Water Act, 33 U.S.C. § 1322(f)(3). Compl.,
ECF No. 1, ¶¶ 54–57, 61–62.
Before any substantive motions were filed, EPA moved to remand without vacatur so that
the agency could consider compliance costs, a factor it had eschewed in its “reasonable
availability” determination. Mot. to Remand to EPA, ECF No. 25 [hereinafter First Remand Mot.].
EPA had taken the position that “neither the Clean Water Act nor EPA’s implementing regulations
contemplate or require that EPA consider the cost of retrofitting vessels, the practical
considerations related to retrofitting vessels to achieve compliance, or the cost of using pump-out
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facilities.” A.R. at 15. But following American Waterways’ Complaint, EPA explained that it
“now believes,” based on the Supreme Court’s decision in Michigan v. EPA, 576 U.S. 743 (2015),
“that it should have considered compliance costs in making the challenged determination.” First
Remand Mot. at 4.
The court denied EPA’s motion. The court observed that EPA had “admit[ted] no error,”
and instead had argued that, although the Clean Water Act did not necessarily require it to weigh
costs, the Act could not “‘be read to prohibit EPA from doing so.’” Memo. Op. & Order, ECF
No. 41 [hereinafter Remand Op.], at 5 (quoting Reply in Supp. of EPA’s Remand Mot., ECF
No. 32, at 3). The court exercised its discretion to deny remand in part because no new
developments rendered EPA’s determination infirm; rather, Michigan v. EPA, on which EPA
based its change of heart, “was decided two years before EPA issued its decision,” and commenters
had raised the issue of costs during the Section 312(f)(3) process. Id. at 5–6. The court also
concluded that granting EPA’s remand request would unduly prejudice Intervenors’ environmental
interests and create uncertainty for regulated parties. Id. at 7–8.
EPA then tried to shore up its case for remand. On March 26, 2020, EPA issued a formal
memorandum declaring that it had taken “the legally erroneous position that it was not required
to, and did not, consider costs” in issuing its “reasonable availability” determination as to the Puget
Sound NDZ. Cross-Mot. for Recons., ECF No. 49 [hereinafter Mot. for Recons.], Ex. 1, ECF
No. 49-1 [hereinafter EPA Costs Memo], at 1. Upon further review, the agency concluded, “the
Supreme Court’s decision in Michigan v. EPA . . . compels EPA to consider costs in determining
whether such facilities are ‘reasonably available.’” Id. (emphasis added). EPA also promised that
“the Office of Water is developing a tool to calculate the costs on the vessel community associated
with the reasonable availability of facilities within a proposed no-discharge zone.” Id. at 3.
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Meanwhile, this litigation continued to move forward. On January 17, 2020, the court
issued a scheduling order for briefing on cross-motions for summary judgment. Minute Order,
Jan. 17, 2020. American Waterways filed its motion for summary judgment, as directed, on
February 26, 2020. See Pl.’s Mot. That motion challenged the Puget Sound NDZ determination
on four grounds, all under the APA: (1) EPA failed to determine that there were “adequate”
facilities for the “treatment” of sewage, as required by Section 312(f)(3); (2) the agency failed to
consider costs in determining the “reasonable availability” of facilities in the Puget Sound, as
required under Michigan v. EPA; (3) EPA’s finding that pumpout facilities are “reasonably
available” was flawed; and (4) the agency improperly disregarded deficiencies in Ecology’s
Section 312(f)(3) petition. See Pl.’s Mot.
EPA did not fully respond to American Waterways’ motion; nor did it cross move for
summary judgment. Instead, the agency filed a consolidated opposition and a “Cross-Motion for
Reconsideration,” in which the agency conceded error only on the Michigan v. EPA cost issue and
again asked the court to remand the case in its entirety. See Mot. for Recons. The agency mounted
no defense to the other three challenges but urged the court not to reach those issues, so that the
agency “on remand . . . [could] reevaluate the rest of the determination.” Id. at 1. Taking up the
agency’s mantle, Intervenors defended the Puget Sound NDZ determination in full and asked the
court to reject EPA’s renewed request for remand and enter summary judgment in their favor.
Def.-Intervenors’ Cross-Mot. for Summ. J., ECF No. 52 [hereinafter Intervenors’ Br.]. The court
heard oral argument on the parties’ motions on November 13, 2020.
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IV. DISCUSSION
The court turns first to EPA’s motion for reconsideration and then takes up the cross-
motions for summary judgment.
A. Motion for Reconsideration of Motion to Remand
Under Rule 54(b), the court may “reconsider an interlocutory order as justice requires.”
Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (internal
quotation marks omitted). “[A]sking ‘what justice requires’ amounts to determining, within the
Court’s discretion, whether reconsideration is necessary under the relevant circumstances.” Cobell
v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). The court likewise “has broad discretion to decide
whether and when to grant an agency’s request for a voluntary remand.” Limnia, Inc. v. U.S. Dep’t
of Energy, 857 F.3d 379, 381 (D.C. Cir. 2017). Here, EPA does not claim that the typical triggers
for remand—the occurrence of events outside the agency’s control or new evidence, Carpenters
Indus. Council v. Salazar, 734 F. Supp. 2d 126, 132 (D.D.C. 2010)—support its request for
reconsideration. Rather, EPA’s request turns on its memo formalizing its new position on the
impact of the Supreme Court’s 2015 decision in Michigan v. EPA. The memo states that EPA’s
prior “position that it was not required to . . . consider costs in issuing its determination in 2017”
was “legally erroneous” under Michigan v. EPA. EPA Costs Memo at 1.
While EPA has now admitted error, the court is not convinced that justice requires granting
EPA’s motion for reconsideration, which would have the effect of preempting resolution of the
pending motions for summary judgment. One of the driving purposes of remanding a matter to an
agency is to conserve “the courts’ and the parties’ resources.” See Ethyl Corp. v. Browner, 989
F.2d 522, 524 (D.C. Cir. 1993); see also id. at 524 n.3 (collecting cases where remand was granted
prior to significant events in the development of the case); Carpenters Indus. Council, 734 F. Supp.
102d at 132 (noting voluntary remand “preserves scarce judicial resources by allowing agencies to
cure their own mistakes” (internal quotation marks omitted)). That objective would not be served
were the court to remand this case in its present posture. The court has before it hundreds of pages
of briefing on cross-motions for summary judgment. Those motions squarely present issues that
go beyond EPA’s failure to consider costs. If the court were to remand to EPA for a determination
of costs, EPA would lack guidance on the validity of American Waterways’ other challenges, and
the parties potentially could be mired in piecemeal litigation over EPA’s determination for years
to come. No one benefits from such an approach. The court therefore concludes that it is in the
parties’ best interests, and that of the public, for the court to resolve the ripe cross-motions for
summary judgment. As the court reaches the merits of the parties’ dispute, and will remand the
matter as a remedy, EPA’s motion for reconsideration will be denied as moot.
B. Cross-Motions for Summary Judgment
1. Legal Standard
“[S]ummary judgment is the mechanism for deciding whether as a matter of law an agency
action is supported by the administrative record and is otherwise consistent with the APA standard
of review.” Louisiana v. Salazar, 170 F. Supp. 3d 75, 83 (D.D.C. 2016). In reviewing an agency
action under the APA, “the district judge sits as an appellate tribunal,” and “[t]he entire case on
review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.
Cir. 2001) (internal quotation marks omitted). The court’s analysis must be confined to the
administrative record and should involve “neither more nor less information than” was before “the
agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal
quotation marks omitted). The district court’s “review is ‘narrow’ and [it] will ‘not substitute [its]
judgment for that of the agency.’” U.S. Sugar Corp. v. EPA, 830 F.3d 579, 605 (D.C. Cir. 2016)
11
(alterations omitted) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. (State
Farm), 463 U.S. 29, 43 (1983)).
The APA requires courts to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law.” 5 U.S.C. § 706(2)(A). “Although the arbitrary and capricious standard of review
is deferential, the court will ‘intervene to ensure that the agency has examined the relevant data
and articulated a satisfactory explanation for its action.’” BellSouth Corp. v. FCC, 162 F.3d 1215,
1221–22 (D.C. Cir. 1999) (alterations omitted) (quoting Petroleum Commc’ns, Inc. v. FCC, 22
F.3d 1164, 1172 (D.C. Cir. 1994)). An agency’s decision is arbitrary and capricious if the agency
relies “on factors which Congress has not intended it to consider, entirely fail[s] to consider an
important aspect of the problem, offer[s] an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” State Farm, 463 U.S. at 43.
2. Failure to Consider Costs
The court first turns to the parties’ dispute regarding whether EPA was required to consider
compliance costs under Section 312(f)(3) of the Clean Water Act. American Waterways and EPA
both argue that Michigan v. EPA required the agency to consider the costs of compliance as part
of the “reasonable availability” determination required under Section 312(f)(3). See Pl.’s Mot.
at 20–22; Mot. for Recons. at 5–7. Intervenors dispute this, arguing that (1) the logic of Michigan
does not apply to the statutory scheme at issue here, (2) the text of Section 312(f)(3) is silent as
to costs, and (3) the statute prioritizes environmental protection over economic considerations.
Intervenors’ Br. at 19–25.
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Although the parties largely devote their time to parsing Michigan, the Supreme Court’s
earlier decision in Whitman v. American Trucking Associations, 531 U.S. 457 (2001), is the better
place to begin. In Whitman, the Court considered whether a provision of the Clean Air Act
instructing EPA to set ambient air quality standards that were “requisite to protect the public health
with an adequate margin of safety” required the agency to consider “the economic cost of
implementing” the proposed standards. 531 U.S. at 465–66 (internal quotation marks omitted).
The Court concluded that Congress’s instruction for EPA to issue “requisite” standards with an
“adequate margin of safety” did not constitute a “textual commitment of authority to the EPA to
consider costs” in setting air quality standards. Id. at 468. It was “implausible,” the Court found,
that by using the “modest words” “requisite” and “adequate,” Congress bestowed on EPA “the
power to determine whether implementation costs should moderate national air quality standards.”
Id. Rather, the text of the provision at issue, “interpreted in its statutory and historical context and
with appreciation for its importance to the [Clean Air Act] as a whole, unambiguously bar[red]
cost considerations from the” standard-setting process. Id. at 471; see also Murray Energy Corp.
v. EPA, 936 F.3d 597, 621 (D.C. Cir. 2019) (rejecting “the same argument rejected in Whitman”
that costs should be considered in setting air quality standards).
More than a decade later, in Michigan, the Supreme Court considered a different provision
of the Clean Air Act, this time evaluating a provision that directed EPA to regulate emissions from
power plants if it concluded that “regulation [wa]s appropriate and necessary.” 576 U.S. at 748.
There, EPA found that it was “‘appropriate and necessary’” to regulate power-plant emissions, but
the agency concluded that it was not required “to consider whether the costs of its decision
outweighed the benefits.” Id. at 749–50. The Michigan Court disagreed, finding that the term
“‘[a]ppropriate and necessary’” was “a far more comprehensive criterion than ‘requisite to protect
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the public health,’” the phrase at issue in Whitman. Id. at 756 (internal quotation marks omitted).
The word “‘appropriate,’” the Court reasoned, was “the classic broad and all-encompassing term
that naturally and traditionally includes consideration of all the relevant factors.” Id. at 752
(internal quotation marks omitted). Cost was one such relevant factor: “Read naturally in the
present context, the phrase ‘appropriate and necessary’ requires at least some attention to cost.” Id.
Read together, Whitman and Michigan stand for the proposition that whether an agency is
required to consider costs depends on the breadth of the statutory text and the degree to which it
compels the agency to balance costs and benefits. Since the Supreme Court decided Michigan,
courts in this Circuit have helpfully fleshed out the Whitman–Michigan dichotomy. For example,
in Utility Solid Waste Activities Group v. EPA, the D.C. Circuit concluded that EPA was not
required to consider costs when determining whether a waste site should be classified as an “open
dump.” 901 F.3d 414, 448–49 (D.C. Cir. 2018). The statute there directed EPA to determine “if
there is no reasonable probability of adverse effects on health or the environment from disposal of
solid waste at such facility.” Id. at 449 (emphasis omitted) (internal quotation marks omitted).
The Circuit held that the statute did not contain an “explicit mention of costs,” nor was “there any
flexible language such as ‘appropriate and necessary’ that might allow the EPA to consider costs
in rulemaking.” Id.; see also Nicopure Labs, LLC v. FDA, 266 F. Supp. 3d 360, 401 (D.D.C. 2017)
(holding statute that said the FDA “shall” regulate products that the Secretary deemed to be
tobacco products did not permit consideration of costs because “[t]he statute does not limit the
Secretary’s authority to deem to when he finds it ‘appropriate and necessary’ to do so”). In
contrast, in Metlife, Inc. v. Financial Stability Oversight Council, the district court determined that
the Council was required to consider costs when designating Metlife for supervision by the Board
of Governors of the Federal Reserve System under the Dodd–Frank Act. 177 F. Supp. 3d 219,
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224–25, 230 (D.D.C. 2016). The Dodd–Frank Act instructed the Council to consider ten statutory
criteria in deciding whether to designate a financial institution, as well as “any other risk-related
factors that [it] deems appropriate.” Id. at 225 (quoting 12 U.S.C. § 5323(a)(2)(K)). The statute’s
use of the word “appropriate,” the court held, required the Council to consider costs in making any
designation. Id. at 241. As in Michigan v. EPA, “‘[a]ppropriate’ is . . . the touchstone of the catch-
all factor in Dodd–Frank Section 113,” and that “textual hook,” the court held, required the Council
“to consider the cost of designating a company for enhanced supervision.” Id. at 240–41.
Turning then to the present case, the court begins, as required, with the statutory text.
Section 312(f)(3) provides, in relevant part, that
if any State determines that the protection and enhancement of the
quality of some or all of the waters within such State require greater
environmental protection, such State may completely prohibit the
discharge from all vessels of any sewage, whether treated or not,
into such waters, except that no such prohibition shall apply until
the Administrator determines that adequate facilities for the safe and
sanitary removal and treatment of sewage from all vessels are
reasonably available for such water to which such prohibition
would apply.
33 U.S.C. § 1322(f)(3) (emphasis added). The question before the court is whether EPA’s mandate
to determine whether adequate facilities are “reasonably available” is a textual direction from
Congress to EPA to consider costs. It is.
Section 312(f)(3) of the Clean Water Act more closely resembles the statutes at issue in
Michigan and Metlife than those at issue in Whitman and Utility Solid Waste. The term “reasonably
available” is precisely the type of language that the Michigan Court held “naturally and
traditionally includes consideration of all the relevant factors.” 576 U.S. at 752 (internal quotation
marks omitted); see also id. at 755 (considering parenthetically the boundaries of “the expansive
word ‘reasonable’”). Indeed, the Court said as much in explaining its decision: “reasonable
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regulation ordinarily requires” an agency to consider the “advantages and the disadvantages of
agency decisions.” Id. at 753 (first emphasis added) (internal quotation marks omitted); see also
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. OSHA, 938 F.2d
1310, 1319 (D.C. Cir. 1991) (“‘Reasonableness’ has long been associated with the balancing of
costs and benefits.”). “Reasonable availability” therefore provides the “textual hook,” Metlife,
177 F. Supp. 3d at 241, that requires EPA to consider costs when approving an NDZ.
Logic likewise dictates that the agency was required to consider costs. Say, hypothetically,
that the only pumpout facilities available to commercial vessels were all located in a remote portion
of the Puget Sound. Even if those pumpout facilities were sufficient in number, no one would
seriously contend that such facilities were “reasonably available” if they imposed significant costs
on vessels to reach them. Cf. Michigan, 576 U.S. at 752 (“One would not say that it is even
rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a
few dollars in health or environmental benefits.”). There can be little doubt that Congress intended
for EPA to consider the costs of accessing adequate facilities in determining whether such facilities
were “reasonably available.”
Intervenors launch three primary attacks against the application of Michigan to this case.
First, Intervenors argue that Section 312(f)(3) requires the states that seek to create an NDZ—not
EPA—to consider the costs of compliance, and Ecology did so here. Intervenors’ Br. at 20–21.
Second, Intervenors argue that the relevant statutory scheme fundamentally differs from the
provision in Michigan because it does not contain an explicit congressional directive to consider
costs. Id. at 22–23. Third, Intervenors claim that Congress “prioritized environmental protection
under § 312(f)(3)” to the exclusion of cost considerations. Id. at 23–25. None of these arguments
is persuasive.
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a. The statutory scheme
Intervenors first assert that, because Section 312(f)(3) calls for states, as opposed to EPA,
to regulate and limits EPA’s role to approving a state’s decision to regulate, the state, rather than
EPA, should balance the costs and benefits of creating an NDZ. Id. at 21–23. But that contention
cannot be squared with the plain statutory text. Section 312(f)(3) places an independent obligation
on EPA to consider costs. It requires “the Administrator” of EPA to “determine[] that adequate
facilities . . . are reasonably available.” 33 U.S.C. § 1322(f)(3). Thus, the textual hook that requires
consideration of all relevant factors—the “reasonable availability” of adequate facilities—is
delegated directly to EPA, not to states petitioning EPA. The Administrator, having been charged
with determining whether adequate facilities are reasonably available, must consider “the
advantages and the disadvantages” of his decision, see Michigan, 576 U.S. at 753, regardless of
whether the petitioning state also does so.
b. Explicit directive
Intervenors next attempt to distinguish Michigan by arguing that, while the statutory
scheme in Michigan explicitly called for the considerations of costs, the same is not true here.
Intervenors’ Br. at 22–23. They also contend that Congress did not intend for EPA to consider
costs in Section 312(f)(3) because Congress explicitly required EPA to consider costs in making
different determinations under other subsections of the same section of the Clean Water Act but
did not specifically do so in Section 312(f)(3). Id. at 22 (citing 33 U.S.C. § 1322(b)(1) (requiring
EPA to promulgate regulations for marine sanitation devices “after giving appropriate
consideration to the economic costs involved”); id. § 1322(n)(b)(B)(vii) (requiring consideration
of “the economic costs of the installation and use of the marine pollution control device” for armed
service vessels); id. § 1322(o)(B)(vii) (requiring consideration of “the economic costs of the use
17
of the management practice” in determining such practices for recreational vessels); id.
§ 1322(p)(6)(C)(ii)(III) (allowing exclusion of installed ballast water management systems if
“with respect to the use of which[,] the environmental, health, and economic benefits would exceed
the costs”)). Neither argument meaningfully distinguishes this case from Michigan.
The provision at issue in Michigan no more expressly required consideration of costs than
does the statutory text at issue here. Neither statutory provision explicitly mentions costs. Rather,
both statutes use broad language—“appropriate and necessary” in Michigan, and “reasonably
available” here—to convey consideration of cost as a factor. To read Michigan as applicable only
in situations in which the statute explicitly calls for the consideration of costs would ignore the
Court’s primary reason for requiring the agency to consider costs: that “it is unreasonable to read
an instruction to an administrative agency to determine whether ‘regulation is appropriate and
necessary’ as an invitation to ignore cost.” 576 U.S. at 753. The difference in statutory text is not
a basis on which to distinguish Michigan.
Moreover, the Michigan Court rejected a challenge similar to Intervenors’ assertion here
that the express reference to costs in nearby statutory provisions meant that Congress did not intend
for EPA to consider costs under Section 312(f)(3). In Michigan, EPA “point[ed] out that other
parts of the Clean Air Act expressly mention cost,” but that the provision at issue did not. Id.
at 754. The Court responded that “this observation shows only that [the statute’s] broad reference
to appropriateness encompasses multiple relevant factors (which include but are not limited to
cost); other provisions’ specific references to cost encompass just cost.” Id. at 755. The Court
held that it was “unreasonable to infer that, by expressly making cost relevant to other decisions,
the Act implicitly makes cost irrelevant to” other decisions committed to the agency. Id.; see also
Metlife, Inc., 177 F. Supp. 3d at 241 (“[The Council] points to adjacent terms in Dodd–Frank that
18
expressly mention cost. But the Michigan Court considered and rejected the same argument.”
(citation omitted)). Similarly here, the fact that other provisions of Section 312 explicitly require
the consideration of costs does not mean cost is irrelevant to Section 312(f)(3). If anything, the
emphasis on cost in these other sections, as in Michigan, “reinforces the relevance of cost” as a
factor to be considered under Section 312(f)(3). 576 U.S. at 753.
c. Priority of environmental protection
Finally, Intervenors urge that Congress intended Section 312(f)(3) to prioritize
environmental protection over all else and thus EPA was not permitted to consider costs.
Intervenors’ Br. at 23–25. But the cases that Intervenors marshal in support of this argument are
inapposite. For example, in Union Electric Co. v. EPA, the disputed provision of the Clean Air
Act enumerated eight criteria that a state program implementing EPA’s standards needed to satisfy,
and if the program satisfied the eight criteria, the statute provided that the Administrator “shall”
approve the state plan. 427 U.S. 246, 257 (1976). The Court concluded that “[t]he mandatory
‘shall’ makes it quite clear that the Administrator is not to be concerned with factors other than
those specified.” Id. Likewise, the statute at issue in Whitman instructed EPA to determine the
maximum concentration of certain airborne pollutants that “public health can tolerate” and to
decrease that concentration to “provide an ‘adequate’ margin of safety.” 531 U.S. at 465. The
Court found EPA should not consider costs because Congress used “modest words” that limited
the scope of the agency’s inquiry. See id. at 468; see also Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 411 (1971) (forbidding Secretary from approving project to use public
parkland unless there was “no feasible and prudent alternative,” which the Court concluded meant
that “only the most unusual situations are exempted” (internal quotation marks omitted)). In these
19
cases, Congress expressed a “priority” for environmental protection by severely restricting the
factors the agency could consider and narrowly defining the scope of its review.
In contrast, Section 312(f)(3)’s requirement that the Administrator determine whether
adequate facilities are “reasonably available” uses language that traditionally requires
“consideration of all the relevant factors,” including a balancing of costs and benefits. See
Michigan, 576 U.S. at 772–73; see also Int’l Union, United Auto., Aerospace & Agr. Implement
Workers of Am., UAW, 938 F.2d at 1319; Mingo Loan Coal Co. v. EPA, 829 F.3d 710, 735 (D.C.
Cir. 2016) (Kavanaugh, J., dissenting) (“In order to act reasonably, EPA must consider costs before
exercising its Section 404(c) authority to veto or revoke a permit.”). Given Section 312(f)(3)’s
capacious language, no overriding environmental-protection priority is evident in the provision. 2
* * *
The court holds that EPA was required to consider the costs of compliance in determining
whether adequate facilities were “reasonably available.” EPA specifically disavowed any
consideration of costs, erroneously concluding that “neither the Clean Water Act nor EPA’s
implementing regulations contemplate or require that EPA consider the cost” of an NDZ. A.R.
at 15; see Mot. for Recons. at 1 (“EPA refused to consider costs when determining whether certain
sewage facilities in Puget Sound are ‘reasonably available.’”). EPA therefore acted arbitrarily and
capriciously in violation of the APA. The agency will have to consider costs on remand.
2
Intervenors also argue that requiring EPA to consider costs permits the agency “to unilaterally consider costs to
industry, without considering the harm to states.” Intervenors’ Br. at 24–25. The court disagrees. Because the
touchstone of EPA’s analysis is the “reasonable availability” of facilities, costs are just one factor EPA must consider
in determining whether adequate facilities are reasonably available. The reasonableness of the costs of a proposed
NDZ may vary depending on environmental concerns, among other factors.
20
3. Availability of Adequate Treatment Facilities
American Waterways next argues that EPA acted arbitrarily and capriciously by not
determining whether adequate facilities for the treatment (as opposed to the removal) of
wastewater are reasonably available in the Puget Sound. Pl.’s Mot. at 14–20. Intervenors counter
that EPA satisfied its obligations to verify the existence of adequate treatment facilities by
requiring Ecology to certify how pumpout companies treat the waste they remove and that, by dint
of a separate EPA regulatory scheme, the public treatment facilities that accept marine sewage
meet federal requirements. Intervenors’ Br. at 14–15.
Section 312(f)(3) requires EPA to determine whether adequate facilities are reasonably
available for both the “removal and treatment of sewage.” 33 U.S.C. § 1322(f)(3) (emphasis
added). 3 EPA therefore must inquire into the reasonable availability of adequate treatment
facilities and “articulate[] a rational connection” between its factual conclusions and its
determination that adequate treatment facilities are reasonably available in the Puget Sound. See,
e.g., Clean Wis. v. EPA, 964 F.3d 1145, 1161 (D.C. Cir. 2020) (internal quotation marks omitted).
That is, EPA must “make[] an ‘attempt at explanation or justification’” for its decision that there
were adequate, reasonably available treatment facilities for marine sewage and provide this court
“with a ‘way to know [its] methodology.’” Nat’l Wildlife Fed. v. EPA, 286 F.3d 554, 564 (D.C.
Cir. 2002) (quoting Engine Mfrs. Ass’n v. EPA, 20 F.3d 1177, 1182 (D.C. Cir. 1994)); see also
Chamber of Argentine-Paraguayan Producers of Quebracho Extract v. Holder, 332 F. Supp. 2d
43, 49 (D.D.C. 2004) (noting agency’s “decisionmaking path” must be “reasonably” discernable
from the record (internal quotation marks omitted)).
3
EPA’s guidance on Section 312(f)(3) applications reflects this construction. It requires applicants to “describe the
waste disposal process for each pumpout facility and dump station” and “indicate that these practices comply with
current Federal, state, and local regulations and, in some cases, explain how they comply.” A.R. at 2376.
21
EPA failed to meet its obligation. The record is devoid of any explanation for EPA’s
finding that adequate sewage treatment facilities are reasonably available in the Puget Sound.
Intervenors suggest that “EPA based [its] determination [as to treatment facilities] on the fact that
the majority of pumped sewage is sent to wastewater treatment plants, and some is treated at onsite
septic tanks ‘that meet federal requirements.’” Def.-Intervenors’ Reply Br., ECF No. 60
[hereinafter Intervenors’ Reply], at 2. But the portion of the record that Intervenors cite relates to
only facilities that treat sewage from recreational vessels—it says nothing about treatment of
sewage from all vessels, or importantly here, treatment of sewage from commercial vessels. See
A.R. at 43 (discussing pumpout and treatment facilities for “the recreational vessel population”
and noting “[t]he majority of pumped sewage is sent to wastewater treatment plants; however,
some is sent to onsite septic tanks that meet federal requirements”); see also Intervenors’ Reply
at 2 (noting EPA made separate determinations for recreational and commercial vessels in this
section). Intervenors cannot point to, and the court cannot find, any similar determination by EPA
with respect to facilities that deal with commercial marine sewage.
If anything, the record appears to suggest that the agency deliberately avoided making a
determination regarding the reasonable availability of adequate treatment facilities. In response to
a comment expressing concern about “sewage facilities accepting septage,” EPA said that its
“authority under . . . Section 312(f)(3) is limited to evaluating the reasonable availability of
pumpout facilities” and “[a]ny considerations as to whether an individual wastewater treatment
facility has the capacity to accept vessel sewage would appropriately lie within the jurisdiction of
that municipality or utility.” A.R. at 31. That position cannot be squared with the clear statutory
text. Congress directed EPA to consider the reasonable availability of adequate facilities to remove
“and” treat sewage. 33 U.S.C. § 1322(f)(3). While Intervenors suggested at oral argument that
22
EPA did not mean that it had eschewed all consideration of treatment facilities, the record contains
no explanation or further context for this statement or, most importantly, any countervailing
evidence that EPA did consider the reasonable availability of treatment facilities. On this record,
the court must conclude that EPA did not make a reasoned determination as to the availability of
sewage treatment facilities. See Nat’l Mar. Safety Ass’n v. OSHA, 649 F.3d 743, 753 (D.C. Cir.
2011) (remanding where record was “almost devoid” of analysis beyond the agency’s “bare
conclusion”).
Intervenors’ attempts to fill the gaps in the agency’s reasoning are both impermissible and
unconvincing. “[C]ourts may not accept . . . counsel’s post hoc rationalizations for agency action.”
State Farm, 463 U.S. at 50. “[A]n agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.” Id.; see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court, in dealing with a determination or judgment which an administrative agency alone
is authorized to make, must judge the propriety of such action solely by the grounds invoked by
the agency.”); Clean Wis., 964 F.3d at 1162–63 (rejecting argument because court could not
“accept counsel’s post hoc rationalizations for agency action” (alteration omitted) (internal
quotation marks omitted)). Having already discerned that EPA did not conduct any inquiry into
the availability of treatment facilities in the Puget Sound, Intervenors’ post hoc explanation cannot
stand in as surrogate for the agency’s own explanation. 4
4
In their reply brief, Intervenors also suggest that the issue of the reasonable availability of adequate wastewater
treatment facilities was not raised before EPA. Intervenors’ Reply at 2, 5. “[A] party will normally forfeit an
opportunity to challenge an agency [decision] on a ground that was not first presented to the agency for its initial
consideration.” Advocs. for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C.
Cir. 2005). Intervenors, however, first raised this argument in their reply brief, so they have forfeited their forfeiture
argument. See Se. Ala. Med. Ctr. v. Sebelius, 572 F.3d 912, 920 n.7 (D.C. Cir. 2009) (refusing to consider argument
that issue that was not raised “with the agency at the appropriate time” was waived because the parties did not raise
the purported waiver “with th[e] court at the appropriate time”).
23
But even if this court were to accept Intervenors’ explanation as EPA’s, the record still
would be insufficient. Intervenors argue that EPA did verify the availability of treatment facilities
because Ecology’s petition showed that most sewage “would be treated at publicly owned
treatment works,” which are “regulated under the Clean Water Act” and must “obtain National
Pollutant Discharge Elimination System permits.” Intervenors’ Br. at 14. Therefore, Intervenors
suggest, EPA was certain that “publicly owned treatment works treat sewage in a safe and sanitary
manner.” Id. But the only evidence of such a consideration in the record consists of Ecology’s
own tables that simply list the name of the “Discharge Location” for pumpout facilities. See A.R.
at 137–39 tbls. 5&6. Nowhere does the record state that EPA determined, based on Ecology’s list
of discharge locations, that all sewage facilities were federally regulated and therefore there were
adequate treatment facilities reasonably available in the Puget Sound. Moreover, even crediting
Intervenors’ argument that the sewage would be properly treated, the record contains no evidence
and reveals no consideration by EPA of whether existing treatment plants could accommodate the
extra sewage that likely would need to be processed if the Puget Sound became an NDZ.
Intervenors’ statement that “EPA verified that four commercial marine work companies
can discharge vessel sewage to any publicly owned treatment facility located throughout Puget
Sound” is likewise without basis. Intervenors’ Br. at 14. To substantiate their assertion,
Intervenors identify four conversations that EPA held with commercial marine work companies.
Id. at 14–15 (citing notes from conversations at A.R. 655, 657, 659, and 678). But these
conversations could hardly have supported EPA’s finding regarding adequate treatment facilities.
EPA’s notes from three of the conversations contain no discussion of sewage treatment. See A.R.
at 655, 657, 659. And EPA’s notes from the fourth conversation include a single bullet point
stating, “The same companies that come to take oil/waste streams can also take sewage waste.
24
And then take it to a municipality for disposal.” Id. at 678. This lone bullet point—in the four-
volume Joint Appendix the parties submitted—reveals nothing about the capacity of the
municipality to accept more marine sewage, nor does it establish that all commercial marine work
companies can take marine sewage to a municipality, or that this is a routine practice. It therefore
cannot save EPA’s determination.
To receive this court’s deference, EPA must show its work. See Kirwa v. U.S. Dep’t of
Def., 285 F. Supp. 3d 257, 269–70 (D.D.C. 2018). EPA did not show that it considered the
reasonable availability of adequate sewage treatment facilities, and its determination that such
facilities exist was therefore arbitrary and capricious. On remand, EPA must explain its reasoning
for its determination as to the existence of adequate, reasonably available treatment facilities in the
Puget Sound, which may include additional fact finding as necessary. 5
4. EPA’s Methodology for Determining the Availability of Pumpout Facilities
American Waterways next takes issue with EPA’s methodology for determining that
adequate pumpout facilities are reasonably available. Pl.’s Mot. at 28–39. It argues that EPA’s
determination was arbitrary and capricious because the agency (1) excluded large oceangoing
vessels from its estimate when calculating a ratio of commercial vessels to pumpout facilities, id.at 28–31; (2) did not appropriately respond to a comment stating that two companies’ fleets were
excluded from its estimate of vessels, id. at 31–32; and (3) did not consider characteristics of
certain vessels that are relevant to determining whether such vessels can access pumpout facilities,
id. at 32–39. Intervenors disagree. They respond that (1) EPA’s estimate of vessels properly
excluded any vessels that would not require the use of pumpout facilities in the Puget Sound and
5
Because the court concludes that EPA did not explain its basis for determining that adequate treatment facilities are
reasonably available in the Puget Sound, it does not reach American Waterways’ remaining argument on the adequacy
of sewage treatment at municipalities near the Puget Sound, see Pl.’s Mot. at 18–20.
25
(2) even if more vessels should have been included in EPA’s estimate, additional vessels would
have had little impact on the vessels-to-facilities ratio. Intervenors’ Br. at 25–30. Intervenors also
argue that (3) EPA directly addressed comments regarding how the characteristics of certain
vessels might limit access to pumpout facilities and no more was required of the agency. Id.at 30–39. The court takes each purported flaw in EPA’s methodology in turn.
a. Vessels estimate
American Waterways’ objections to EPA’s vessels estimate wade into waters where the
agency is typically afforded the utmost deference. “[W]hen agency decisions involve complex
judgments about sampling methodology and data analysis that are within the agency’s technical
expertise, they receive an extreme degree of deference.” Dist. Hosp. Partners, L.P. v. Burwell,
786 F.3d 46, 60 (D.C. Cir. 2015) (internal quotation marks omitted). “Although the plaintiff[] may
disagree with the science or the methodology the [agency] elects to use, absent a statutory mandate
that requires a particular methodology, the agency’s choice of methodology need only be
‘reasonable’ to be upheld.” Colo. River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 209
(D.D.C. 2012) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 998–99 (D.C. Cir. 2008)).
Even if EPA’s vessel count was ultimately “less than perfect, imperfection alone does not amount
to arbitrary decision-making.” Dist. Hosp., 786 F.3d at 61.
EPA offered a reasonable explanation for why it excluded large oceangoing vessels from
its vessels estimate and thus its vessels-to-pumpout-facilities ratio. EPA stated in its Final
Determination:
The large, oceangoing transient commercial vessels that are only in
Puget Sound for a short period of time . . . have large enough holding
tanks to hold their waste during the time they are in Puget Sound,
with some exceptions. . . . [T]hese vessels do not have a need to
26
pumpout and were not included when assessing the adequacy of
pumpout facilities.
A.R. at 7. In support of this conclusion, EPA pointed to information supplied by Ecology,
including a 2013 survey titled Phase 2 Commercial Vessel Sewage Management and Pumpout:
Puget Sound No Discharge Zone for Vessel Sewage. Id. at 22–23. 6 American Waterways
nonetheless presses that EPA must count all vessels—regardless of their need to use pumpout
facilities—and that some large oceangoing vessels, even those with holding tanks, may ultimately
need pumpout facilities. Pl.’s Mot. at 28–30. These arguments fall flat.
EPA’s obligation under Section 312(f)(3) is to determine if removal and treatment facilities
are “reasonably available” in the Puget Sound. 33 U.S.C. § 1322(f)(3). It would make no sense
for EPA to develop a commercial vessels-to-facilities ratio, or otherwise tailor its methodology, to
account for boats that do not require any pumpout or treatment services. Padding the vessels count
with such empty numbers would not yield any additional information about the number of facilities
that are required to adequately remove and treat marine sewage. EPA thoroughly explained its
logic for reducing its estimate of vessels, and this court finds no fault in EPA’s conclusion.
The statutory text does not compel a different result. American Waterways emphasizes
Section 312(f)(3)’s reference to “all vessels,” but, read in context, that reference is to only those
vessels that actually require disposal and treatment services in the Puget Sound. Before a state can
completely prohibit vessels from discharging sewage in specific waters, EPA is directed to
“determine[] that adequate facilities for the safe and sanitary removal and treatment of sewage
6
American Waterways argues that it was improper for EPA to rely on this survey, rather than a global survey, in
reaching its determination. Pl.’s Reply at 18. EPA, however, offered a reasonable explanation for relying on
Ecology’s 2013 study rather than American Waterways’ proposed global study: There was “no information to suggest
that the results of the world survey are representative of vessels in Puget Sound.” A.R. at 23. Because EPA has
offered a reasonable explanation for its choice, that choice is entitled to this court’s deference. See Coal. of Battery
Recyclers Ass’n v. EPA, 604 F.3d 613, 619–21 (D.C. Cir. 2010) (concluding that EPA “adequately justified” its choice
of studies and deferring to that decision).
27
from all vessels are reasonably available for such water.” 33 U.S.C. § 1322(f)(3). The statutory
focus is thus on the reasonable availability of adequate facilities for vessels that actually require
“safe and sanitary removal and treatment” services. It would make little sense for “all vessels” to
include vessels that do not need the very facilities whose reasonable availability EPA is required
to assess. Section 312(f)(3) therefore did not compel the inclusion of oceangoing vessels in EPA’s
count. 7
Nor does the court find any basis to require EPA to develop a model that accommodates
every contingent circumstance in which vessels that rarely need pumpout services in the Puget
Sound require emergency service. EPA exercised its discretion in excluding such vessels and
specifically explained that it had “confirmed that no large cruise ships” had requested authorization
to directly discharge in the Puget Sound since 2012. A.R. at 27. The court cannot conclude that
it was unreasonable for EPA to exclude ships that generally do not need to discharge in the Puget
Sound and in practice had not had an emergency need to do so in the five years preceding the NDZ.
b. EPA’s response to comments regarding excluded fleets
American Waterways next asserts that EPA’s response to a comment stating that EPA had
failed “to consider at least two companies’ entire fleets” was inadequate. Pl.’s Mot. at 31. The
law of this Circuit is settled that an agency must “respond to ‘relevant’ and ‘significant’ public
comments,” but it need not respond to comments that “do not disclose the factual or policy basis
on which they rest.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (first quoting
Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977); then quoting id. at 35 n.58);
see also Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013)
7
Notably, EPA also excluded other types of vessels in its count—including Washington State Ferries and U.S. military
vessels—that have their own dedicated pumpout facilities, see A.R. 7, 9, but American Waterways registers no
complaint as to these exclusions.
28
(“[C]omments which themselves are purely speculative and do not disclose the factual or policy
basis on which they rest require no response.” (internal quotation marks omitted)). As EPA
explained in its response to the disputed comment, the commenter did not identify the “number of
additional existing vessels [that] may have been excluded.” A.R. at 22. The commenter claimed
two fleets were missing but provided the number of vessels (six) for only one of the missing fleets.
Id. at 21–22; see id. at 54962. EPA’s response demonstrated that small discrepancies in the
commercial vessel count, which already included more than 600 vessels, were not substantial
enough to alter its analysis. Id. at 22. And without information regarding the size of the other
missing fleet or information substantiating the commenter’s claim that the “numbers should be
higher,” id., EPA could not reasonably assess how its model might have fallen short and the degree
to which its estimates needed to be reconsidered. In such a circumstance, no additional response
was required.
Moreover, minor deficiencies in an agency’s data do not provide this court with a basis to
conclude that the agency acted arbitrarily and capriciously. See Dist. Hosp., 786 F.3d at 61
(holding that an agency’s reliance on an imperfect dataset “alone does not amount to arbitrary
decision-making”); Catawba County v. EPA, 571 F.3d 20, 45 (D.C. Cir. 2009) (“EPA used the
best information available in making its designations, and that is all our precedent requires.”).
Thus, any shortcomings in EPA’s response are not grounds for remand. See Nat’l Shooting Sports
Found., Inc., 716 F.3d at 215 (“[O]nly comments which, . . . if adopted, would require a change in
an agency’s proposed rule cast doubt on the reasonableness of a position taken by the agency.”
(internal quotation marks omitted)).
29
c. EPA’s use of a vessels-to-facilities ratio
Finally, American Waterways offers a broadside attack on EPA’s determination that
adequate pumpout facilities exist, particularly contesting EPA’s use of a ratio to determine whether
there were reasonably available facilities for all vessels. American Waterways first identifies
multiple logistical issues that it claims EPA failed to address properly. See Pl.’s Mot. at 32–38. It
then argues that EPA failed to explain why a simple ratio was helpful to its determination and why
a ratio of 11 vessels to 1 pumpout facility meant that pumpout facilities were reasonably available.
Id. at 38–39.
First, American Waterways argues that EPA failed to consider the logistical challenges
commercial vessels would face when attempting to use pumpout facilities, including concerns
about large boats accessing facilities, mobile facilities gaining security access to certain docks, and
the time and cost of using pumpout services. Id. at 32–36. American Waterways also argues that
EPA ignored concerns about seasonal demand for services. See id. at 38. These arguments boil
down to discontent with EPA’s conclusion that mobile pumpout facilities, which EPA concluded
resolve many of American Waterways’ complaints, can service commercial vessels that are unable
to use stationary pumpout facilities. EPA acknowledged the very same logistical challenges that
American Waterways now raises and concluded that they were not prohibitive:
EPA has determined that there are numerous mobile pumpout
facilities with the capacity to serve large commercial vessels and
that service all of Puget Sound. Among the five pumpout companies
identified in Ecology’s petition, approximately 52 pumpout trucks
and two mobile commercial pumpout vessels are available to service
all of Puget Sound. As such, the geographic location or vessel
access restrictions at the two stationary pumpout facilities in
Bellingham are not determinative.
A.R. at 24. The agency went on to explain precisely how mobile pumpout facilities could solve
some of the challenges that vessels faced and delineated separate responses regarding the number
30
of mobile pumpout companies, services provided, capacity of mobile pumpouts, dock access and
security concerns, and seasonal demand. Id. at 25–26. American Waterways may disagree with
the conclusions EPA reached during notice and comment, but that does not convert EPA’s
reasoned response to the type of non-response that “demonstrates that the agency’s decision was
not ‘based on a consideration of the relevant factors.’” Thompson v. Clark, 741 F.2d 401, 409
(D.C. Cir. 1984) (quoting Overton Park, 401 U.S. at 416). This court will not substitute its
judgment for EPA’s.
Second, American Waterways claims that EPA was “dismissive” of a comment from
American Cruise Lines relaying concerns about pumping sewage from the American Spirit, a small
cruise ship. Pl.’s Mot. at 37–38; A.R. at 54928–40. But American Waterways’ argument is based
on a selective excerpt of EPA’s thorough response to American Cruise Lines. EPA’s response
explained, for example, why American Cruise Lines’ concerns about pumpout times were
unfounded based on its research and further explained that, while the American Spirit might need
to adjust its itinerary or operations to accommodate the time needed to pump out, this did not
render pumpout facilities unavailable. See A.R. at 27. There is thus no truth to American
Waterways’ claim that EPA “dismiss[ed] rather than address[ed]” the issues American Cruise
Lines raised. Pl.’s Mot. at 38. EPA’s response satisfies the court that the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action.” State Farm, 463 U.S.
at 43.
Third, American Waterways argues that, particularly considering the aforementioned
logistical challenges, EPA acted arbitrarily and capriciously (1) by basing its determination that
facilities were reasonably available on a ratio of commercial vessels to pumpout facilities and
(2) by failing to explain the relevance of that ratio. Pl.’s Mot. at 34–38. Intervenors counter that
31
EPA properly responded to these logistical concerns and that EPA considered a ratio of
commercial vessels to pumpout facilities as but one factor of several in determining that adequate
pumpout facilities are reasonably available in the Puget Sound. Intervenors’ Br. at 30–32, 37–39.
In reviewing an agency’s use of a given model, “judicial deference . . . cannot be utterly
boundless.” Chemical Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994). This court will
find EPA’s model “arbitrary and capricious if there is simply no rational relationship between the
model and . . . [the situation] to which it is applied.” Greater Yellowstone Coal. v. Kempthorne,
577 F. Supp. 2d 183, 198 (D.D.C. 2008) (internal quotation marks omitted). “Generally, the court
defers the determination of fit between the facts and the model to the EPA, so that the agency
rather than the court may balance marginal losses in accuracy against marginal gains in
administrative efficiency and timeliness of decision making.” Chemical Mfrs. Ass’n, 28 F.3d
at 1265.
The record before the court reveals that EPA did not simply compute a ratio and call it
quits. Rather, EPA reached out to multiple pumpout providers to ascertain any restrictions on
vessel size, capacity, time to pump out, dock access, and seasonality. A.R. at 24–27; id. at 655–60,
668–70, 672–74, 676–79 (records of conversations with pumpout facilities). EPA explicitly stated
that its determination was based, in part, on information gleaned from these conversations, which
satisfied the agency that (1) “mobile pumpouts provide service throughout Puget Sound, provide
sufficient capacity for commercial vessels, and generally do not experience dock access issues”;
and (2) “services can be scheduled by appointment to accommodate vessel needs and itineraries,
and are sufficiently diversified such that they do not experience seasonal fluctuations.” Id. at 8–9.
Thus, without deciding whether a ratio by itself is a permissible methodology for determining
whether facilities are reasonably available, EPA’s decision here was more nuanced than the simple
32
calculation of a ratio that American Waterways suggests. See Pub. Emps. for Env’t Resp. v. U.S.
Dep’t of Interior, 832 F. Supp. 2d 5, 24, 26 (D.D.C. 2011) (rejecting argument that agency did not
show that its “observations [we]re systematic, comprehensive, or scientific” because the court was
required to “defer to the agency’s chosen methodology so long as it bears a rational relationship
between the method and that to which it applied” (alterations omitted) (internal quotation marks
omitted)).
American Waterways’ second attack on EPA’s reliance on a ratio—that EPA failed to
adequately explain the relative significance of its ratio—has more teeth. See Pl.’s Mot. at 38–39.
“[T]he process by which an agency reaches its decreed result must be logical and rational.”
Natural Res. Def. Council, Inc. v. Rauch, 244 F. Supp. 3d 66, 86 (D.D.C. 2017) (alterations
omitted) (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)). To
demonstrate that its process was logical and rational, EPA must, “at a minimum, provide[] an
explanation for adopting” a given metric. See U.S. Sugar Corp., 830 F.3d at 652. EPA, however,
did not provide any explanation for how an 11:1 ratio of commercial vessels to pumpout facilities
supported the conclusion that pumpout facilities were reasonably available. See A.R. at 7–10.
EPA did not, for example, explain whether there was a maximum permissible ratio for approving
an NDZ or even if the 11:1 ratio fell into a given range of permissible ratios for commercial vessels.
By contrast, with respect to recreational vessels, EPA explained that its ratio of 171 recreational
vessels to one pumpout facility was appropriate by referring to the Clean Vessel Act’s guidance
that there should be “one pumpout station for every 300-600 boats.” Id. at 4–6. EPA’s lack of
explanation with respect to commercial vessels stands out in comparison.
Intervenors attempt to make up for this shortcoming by noting that “[p]ast affirmative
determinations shed some light” on why EPA found the 11:1 ratio reasonable, but Intervenors fail
33
to identify a single page in the record in which EPA itself looked to past determinations. See
Intervenors’ Br. at 38. Without an explanation for why a ratio of 11 commercial vessels to one
pumpout facility is reasonable, EPA has not shown that its reliance on this ratio was rational and
logical. On remand, EPA will have the opportunity to explain why the 11:1 ratio supports a
“reasonable availability” determination.
5. Scrutiny of Ecology’s Petition
a. Exclusion of key data
American Waterways also argues that this court should vacate and remand EPA’s
determination because Ecology’s petition for an NDZ did not include a map, operating hours, or
draught restrictions for all facilities. American Waterways suggests that these omissions required
EPA to reject Ecology’s petition. 8 Pl.’s Mot. at 39–44. Intervenors, naturally, have a different
view. They argue that an appendix to Ecology’s petition provided most of the information
American Waterways claims is missing and that EPA properly did not require a map of mobile
pumpout facilities because they are, by definition, not fixed to a location. Intervenors’ Br.
at 39–40.
As a “general principle,” “it is always within the discretion of . . . an administrative agency
to relax or modify its procedural rules adopted for the orderly transaction of business before it
when in a given case the ends of justice require it.” Am. Farm Lines v. Black Ball Freight Serv.,
397 U.S. 532, 539 (1970) (internal quotation marks omitted). For a court to undo an agency’s
action due to the agency’s deviation from its procedures, the complaining party must make a
8
American Waterways also argues that EPA should have rejected Ecology’s petition because it did not include a
statement that the treatment facilities in the petition complied with federal standards. See Pl.’s Mot. at 43–44. Because
this court has already concluded that EPA’s analysis of wastewater treatment was insufficient and requires remand, it
need not determine whether Ecology’s failure to include a certification of compliance with respect to treatment
facilities renders EPA’s decision arbitrary and capricious.
34
“showing of substantial prejudice.” Associated Press v. FCC, 448 F.2d 1095, 1104 (D.C. Cir.
1971) (internal quotation marks omitted).
American Waterways contends that the American Farm Lines rule does not apply here
because EPA’s procedures “confer important procedural benefits upon individuals,” id. (internal
quotation marks omitted), and “affect individuals’ rights,” see Chiron Corp. v. Nat’l Transp. Safety
Bd., 198 F.3d 935, 944 (D.C. Cir. 1999). Pl.’s Mot. at 40–42. In such situations, American
Waterways argues, courts have limited an agency’s ability to deviate from its procedures. Id. But
this comparison is inapt, and the court need look no further than American Waterways’ own case
law to demonstrate why. American Waterways relies on Morton v. Ruiz, where the Supreme Court
found that an agency distributing a federal assistance program for impoverished Native Americans
needed to adhere to strict internal procedures to determine whether an applicant was entitled to
benefits. 415 U.S. 199, 231–32, 235 (1974). There, the “rights of individuals”—that is,
individuals’ rights to federal benefits—were being adjudicated. Id. at 235. In such a situation, the
Supreme Court concluded that it was “incumbent upon” the agency “to follow [its] own
procedures.” Id.; see also Mass. Fair Share v. Law Enf’t Assistance Admin., 758 F.2d 708, 711–12
(D.C. Cir. 1985) (reaching a similar conclusion with respect to procedural requirements for
finalizing grants to successful applicants). Here, by contrast, EPA did not adjudicate the individual
rights of American Waterways’ members when it approved the Puget Sound NDZ—it merely
determined that Washington may create an NDZ for those waters. Chiron Corp., 198 F.3d at 944(“Because an NTSB investigation does not itself determine the rights of the parties . . . the
Guidance cannot be viewed as a binding rule on these terms.”). The American Farm Lines rule,
and not a stricter one, therefore applies.
35
Following that rule, American Waterways fails to make a “showing of substantial
prejudice,” even if EPA did deviate from its own procedure. Associated Press, 448 F.2d at 1104(internal quotation marks omitted). Although American Waterways vaguely claims that the lack
of information made it difficult for the regulated community to access “the information necessary
to meaningfully participate,” Pl.’s Mot. at 42–43, it offers no credible reason to believe that any
person’s right to participate was impaired. First, American Waterways overstates the amount of
information missing from Ecology’s petition. The petition contained a map of stationary pumpout
facilities and identified where mobile pumpout facilities were based, although it did not depict the
range of the mobile pumpout companies. A.R. at 111. An appendix to the petition titled “Pumpout
Facility Information” further provided the hours of operation for the vast majority of pumpout
facilities. See id. at 119–24. The same appendix provided the “Min Depth at Low Tide” for each
of the stationary facilities, although it did not do so for mobile pumpout facilities. Id. As Ecology
explained, such draught requirements would vary for mobile pumpout companies, depending on
where they were providing services. See id. at 145.
Second, with respect to the information that Ecology did omit from its petition, the record
reveals that EPA received and responded to comments about each of the omitted issues—including
the range of mobile pumpout facilities, access to such facilities, and their hours of operation. Id.
at 25–26 (concluding marine work companies “will travel to the customer so that the distribution
of services covers all of Puget Sound”; providing information on hours of operation in section
titled “service provided”; explaining why “access to docks has not been an issue” for mobile
pumpout facilities); id. at 23 (noting additional comment on lack of access to mobile facilities).
American Waterways fails to identify what further comments it would have liked to offer or to
36
meaningfully address how EPA’s responses to the existing comments were insufficient to protect
its interests.
Moreover, EPA explained why the omissions in Ecology’s petition did not hamper its
reasoned decisionmaking. It would not yield useful information, EPA explained, to require
Ecology’s petition to comply with certain requirements for mobile pumpout facilities and pumper
trucks because of the variable places and docks these facilities use. Id. at 18–19; see also id. at 145
(Ecology noting that “[d]ue to the nature of pumper trucks[’] geographic mobility, and ability to
operate in many different locations, mapping the companies or providing size of draught limits is
not practical”). EPA also concluded that, given mobile pumpout companies’ ability to travel
throughout the entire Puget Sound region, “mapping the specific locations of these companies
would not add to EPA’s analysis or provide any further information for the regulated community.”
Id. at 19. EPA therefore concluded that, in this instance, strict adherence to the petition
requirements would not be helpful in reaching its determination and therefore was unnecessary.
On this record, the court concludes that it was not arbitrary or capricious for EPA to relax its
requirements for Ecology’s Petition.
b. Certificate of Need
Finally, American Waterways challenges EPA’s NDZ determination on the basis that EPA
accepted without scrutiny Ecology’s Certificate of Need, which stated that the Puget Sound
required protection from marine discharges that exceeded federal standards. Pl.’s. Mot. at 44. Not
so, Intervenors contend. They argue that Congress gave the states, not EPA, the authority to
determine whether certain waters require greater environmental protection and that second-
guessing the Certificate of Need would have exceeded EPA’s authority. Intervenors’ Br. at 40–42.
Intervenors also argue that American Waterways waived this argument by previously arguing to
37
the Washington Pollution Control Hearings Board that EPA lacked authority to review Ecology’s
Certificate of Need. See id. at 40, 42.
Turning first to Intervenors’ argument that American Waterways adopted a contrary
position prior to this litigation, “[i]t is settled law that a party that presents a winning opinion
before the agency cannot reverse its position before this court.” S. Coast Air Quality Mgmt. Dist.
v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006); see also Del. Dep’t of Nat. Res. & Env’t Ctrl. v. EPA,
895 F.3d 90, 96 (D.C. Cir. 2018) (“A petitioner may not take a position in this court opposite from
that which it took below, particularly when its position has prevailed before the agency.” (internal
quotation marks omitted)). In order to advance an argument on a petition for review, the party
must have given “adequate notification of the general substance of the complaint” to the agency.
S. Coast Air Quality Mgmt. Dist., 472 F.3d at 891.
The record reveals that American Waterways’ position on EPA’s authority to review
Ecology’s Certificate of Need has been inconsistent, but not fatally so. Before the Washington
Pollution Control Hearings Board, American Waterways argued that the Board should stay
Ecology’s Certificate until the Board could review it precisely because “EPA is only authorized to
determine if adequate pump out facilities exist and will provide no substantive review of the
Certificate of Need.” A.R. at 2806; see also id. at 2818 (arguing that concerns regarding the
Certificate of Need “are not subject to EPA review”). During the notice-and-comment period,
however, American Waterways nudged EPA to at least review Ecology’s Certificate of Need.
American Waterways outlined its concerns regarding the Certificate of Need and argued, “EPA
must play a role in evaluating the integrity of that certification, and should not render a final
determination on adequacy of pump-out capacity since Ecology’s ‘certification’ is not based in
fact.” Id. at 55273. While stopping short of asserting that EPA had an obligation to independently
38
verify the Certificate of Need, American Waterways suggested that its concerns about the
Certificate “should inform EPA’s review of Ecology’s petition.” Id. at 55275. In the same
paragraph, American Waterways nonetheless implied that EPA’s review was limited to
determining “Ecology’s assertion that ‘the current number and location of pump-outs are
sufficient’” to support an NDZ. Id.
American Waterways’ position on this issue has certainly morphed depending on the
audience, but its comments to EPA are not irreconcilably at odds with its position here. The court
thus cannot conclude that American Waterways is precluded from challenging the Certificate of
Need. See Del. Dep’t of Natural Resources & Env’t Ctrl., 895 F.3d at 96 (requiring a “clear
contradiction” with a party’s position before the agency in order to foreclose judicial review).
Accordingly, this court will consider whether EPA was obligated to review Ecology’s Certificate
of Need.
Starting, as it must, with the text of the statute, Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004),
the court concludes that Congress was clear that the petitioning state—not EPA—is entrusted with
determining whether enhanced protection against marine sewage discharge is necessary. Section
312(f)(3) delineates separate roles for the petitioning state and EPA. The state is entrusted with
determining whether “the protection and enhancement of the quality of some or all of the waters
within such State require greater environmental protection.” 33 U.S.C. § 1322(f)(3). Following
that determination, EPA’s Administrator is tasked with determining whether “adequate facilities
for the safe and sanitary removal and treatment of sewage from all vessels are reasonably
available.” Id. By design, the state and EPA work in separate spheres: the state identifies a need
for greater protection from marine discharge, and EPA determines whether prohibition of marine
39
discharge will be feasible. The text of the statute therefore suggests EPA does not enjoy plenary
review of the state’s Certificate of Need.
This interpretation is consistent with the regulatory scheme Section 312(f) creates. See
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (“It is a fundamental
canon of statutory construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.” (internal quotation marks omitted)). In
contrast to Section 312(f)(3), which creates a path for a state to regulate an NDZ with EPA’s
approval, Section 312(f)(4) calls for the Administrator to determine whether greater regulation of
marine sewage is necessary. Under Section 312(f)(4), “[i]f the Administrator determines upon
application by a State that the protection and enhancement of the quality of specified waters within
such State requires such a prohibition,” EPA must then regulate to prohibit discharge in such
waters. 33 U.S.C. § 1322(f)(4)(A) (emphasis added). Section 312(f)(4) therefore provides a useful
comparison to Section 312(f)(3): Section 312(f)(4) explicitly directs the Administrator to assess
the need for the protection and enhancement of water quality, and the Administrator is thereafter
responsible for regulating to “prohibit the discharge from a vessel of any sewage (whether treated
or not) into such waters.” Id. In contrast, under Section 312(f)(3), where the state takes primary
responsibility for regulating, the Administrator’s role is limited to ensuring that “adequate facilities
for the safe and sanitary removal and treatment of sewage” are available. Id. § 1322(f)(3).
Based on the text of Section 312(f)(3) and its statutory context, the court concludes that
EPA did not have a duty to independently verify Ecology’s Certificate of Need under
Section 312(f)(3) and did not arbitrarily or capriciously accept the Certificate.
40
C. Remedy
The only remaining question before the court is whether to remand with vacatur, which
would have the effect of undoing the Puget Sound NDZ, or remand without vacatur, which would
allow the NDZ to continue while EPA acts on remand. American Waterways requests vacatur of
EPA’s determination in its entirety or “partial vacatur as to certain affected vessel classes.” See
Pl.’s Suppl. Mem. of Law, ECF No. 65 [hereinafter Pl.’s Suppl. Br.], at 3. EPA and Intervenors,
meanwhile, principally argue that any remand should be without vacatur. See Mot. for Recons.
at 9–10; Intervenors’ Reply at 15–17. Following supplemental briefing, Intervenors restated their
position that this court, if it must remand, should remand without vacatur, but requested that if the
court does vacate EPA’s determination, it vacate the determination solely with respect to American
Waterways’ members. Def.-Intervenors’ Suppl. Br. Opposing Vacatur, ECF No. 64, at 3–4.
“While unsupported agency action normally warrants vacatur,” whether to remand a rule
with or without vacatur is committed to the district court’s discretion. See Advocs. for Highway
& Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (noting
“this court is not without discretion” in determining whether to vacate an agency decision); see
also Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“[T]he terms
‘invalid’ and ‘vacated’ are not synonyms.”). “The decision whether to vacate depends on [1] the
seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose
correctly) and [2] the disruptive consequences of an interim change that may itself be changed.”
Allied-Signal v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (internal
quotation marks omitted).
41
1. Seriousness of the Determination’s Deficiencies
Here, the court has identified at least two sizeable flaws in EPA’s decisionmaking—its
failure to consider the costs of compliance and its failure to determine whether adequate facilities
for the treatment of marine sewage are reasonably available. In determining whether such flaws
counsel in favor of vacating, the court considers whether “there is at least a serious possibility that
the [agency] will be able to substantiate its decision on remand.” See Allied-Signal, Inc., 988 F.2d
at 151; see also Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C.
Cir. 2008) (remanding without vacatur after finding there was “a significant possibility that the
[agency] may find an adequate explanation for its actions”).
The court finds that there is a serious possibility that EPA will be able to substantiate its
determination on remand. As to the likelihood that correcting EPA’s first flaw will alter the
agency’s decision, there is no dispute that Ecology considered costs to the industry and presented
EPA with an estimate of those costs in its petition. See Intervenors’ Br. at 20–21; Pl.’s Mot. at 22
n.14. Thus, at least one regulatory body, Ecology, has already concluded that the costs of the
regulation do not outweigh its benefits. See A.R. at 68 (explaining Ecology’s “multifaceted effort”
to determine whether an NDZ was appropriate included “evaluating impact costs and benefits,”
among numerous other considerations); id. at 71 (noting one consequence of considering costs was
five-year implementation delay). EPA therefore is not starting from scratch. And although the
agency ultimately disregarded costs, its responses to comments reveal some awareness of the issue.
See id. at 15 (noting Ecology had created a five-year delayed implementation for some vessels to
ease costs and providing examples of helpful cost information for commenters to gather). There
is therefore a serious possibility that EPA will reissue the same determination after fully
considering costs.
42
Likewise, there is a possibility that, after EPA considers the reasonable availability of
adequate treatment facilities for marine sewage, it will again green light the NDZ. Nearly all the
treatment facilities that Ecology has thus far identified are public treatment facilities. See id.
at 137–39. And while American Waterways makes much of the fact that two public treatment
facilities operate under consent decrees, Pl.’s Mot. at 17, EPA’s guidance on this issue suggests
that “[d]ischarge to a public wastewater collection system and treatment facility” is one of two
“preferable” disposal methods, A.R. at 2376. EPA’s guidance and the predominance of public
treatment facilities in the record suggest there is at least a “non-trivial likelihood that” EPA will
again permit Ecology to designate the Puget Sound as an NDZ, supporting remand without vacatur.
See WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002).
2. Disruptive Consequences of an Interim Change
Regarding the second Allied-Signal factor, the potential disruptiveness of vacatur, the court
is concerned that vacating EPA’s determination at this juncture would have a negative impact on
environmental conditions in the Puget Sound. As the D.C. Circuit has held, even where a court
finds “more than several fatal flaws” in an agency action, it is nonetheless “appropriate to remand
without vacatur in particular occasions where vacatur ‘would at least temporarily defeat . . . the
enhanced protection of the environmental values covered by [the agency action at issue].’” North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (per curiam) (quoting Env’t Def. Fund,
Inc. v. Adm’r of the U.S. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990)); see also Ctr. for Biological
Diversity v. EPA, 861 F.3d 174, 189 (D.C. Cir. 2017) (per curiam) (remanding without vacatur
because “vacating would at least temporarily defeat . . . the enhanced protection of the
environmental values covered by [the action at issue].”). As this court stated in denying EPA’s
motion for remand, the Puget Sound NDZ is a significant piece of a years-long initiative in the
43
State of Washington to improve the quality of the waters of the Puget Sound. Remand Op. at 7–8.
Establishing the NDZ prompted the state’s Department of Health to reopen nearly 700 acres of
commercial shellfish beds, which could close again if the NDZ is vacated. Id.; Intervenors’ Reply
at 16–17. Additionally, vacating the NDZ would permit new recreational boaters to discharge
partially treated sewage into the Puget Sound. Intervenors’ Reply at 15–16. The court therefore
concludes that enhanced protection of the environmental integrity of the Puget Sound favors
remand without vacatur.
The court also finds that environmental-protection concerns outweigh the potential costs
to commercial vessels of keeping the determination in place during remand. Washington’s NDZ
regulations mitigate such costs. Ecology has delayed implementation of the new discharge
requirements for “tug boats, commercial fishing vessels, small commercial passenger vessels, and
National Oceanic and Atmospheric Administration (NOAA) research and survey vessels” until
May 10, 2023. A.R. at 70–71 (footnote omitted). Accordingly, such vessels have another two-
and-a-half years to take whatever steps are required to prepare to comply with the NDZ. See Dep’t
of Ecology, State of Wash., Puget Sound Is Now a No-Discharge Zone for Vessel Sewage,
https://ecology.wa.gov/Water-Shorelines/Puget-Sound/No-discharge-zone (last visited Nov.
29, 2020). This implementation delay provides regulated parties with a buffer while EPA
reconsiders its determination.
American Waterways nonetheless urges the court to vacate the NDZ on the ground that its
continuation even while on remand will require its members “to expend significant resources” to
retrofit their vessels by May 2023. See Pl.’s Reply Mem. of Law, ECF No. 56, at 24–27. American
Waterways relies on the July 30, 2019 Declaration of Timothy Stewart, a Senior Director of Fleet
Engineering and Shipyards at Foss Maritime Company (“Foss”), to substantiate its position. Pl.’s
44
Reply in Further Supp. of Cross-Mot. for Remand with Vacatur, ECF No. 39, Decl. of Timothy
Stewart, ECF No. 39-1 [hereinafter Stewart Decl.], ¶ 1. Stewart avers that the vessels at Foss
typically undergo maintenance twice every five years—once in the third year since the last full
maintenance and once in the fifth year—and that off-schedule maintenance and work is “extremely
costly.” Id. ¶ 16. According to Stewart, two ships in Foss’s fleet were scheduled to be dry docked
in March and April 2020 and not again until after the effective date of the NDZ. See id. ¶ 22.
Stewart’s Declaration suggests that these vessels were scheduled for retrofitting of new tanks
during those months. See id. Foss will continue to incur the expense of retrofitting other vessels
in its fleet, at an average cost of $140,000. See id.Though the court recognizes that companies like Foss may continue to incur costs during
the remand period, Stewart’s Declaration alone does little to establish what the overall cost is likely
to be. Stewart represents only one company, and the court has before it no evidence that other
companies are likely to incur retrofitting costs in the near term or how much those costs might be.
Even as to Foss, because the declaration is now over a year old, it remains unclear how much
additional cost Foss is likely to incur in the coming months. In short, though American
Waterways’ members may face some costs of compliance during the remand period, those costs
do not outweigh the potential environmental harm that would befall the Puget Sound were the
court to vacate the NDZ.
3. Partial Vacatur
American Waterways argues that, even if full vacatur is inappropriate, the court should at
least grant partial vacatur of the determination “as to certain affected vessel classes.” Pl.’s Suppl.
Br. at 3. In other words, American Waterways wants its members to be exempt from the NDZ
until a final determination is made on remand. The court declines that invitation.
45
“Severance and affirmance of a portion of an administrative regulation is improper if there
is ‘substantial doubt’ that the agency would have adopted the severed portion on its own.” North
Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008) (internal quotation marks omitted). Section
312(f)(3) of the Clean Water Act requires EPA to make a single determination as to “all vessels.”
33 U.S.C. § 1322(f)(3) (emphasis added). The statute therefore gives EPA no authority to make
piecemeal determinations that would affect some vessels but not others, and the court cannot
conclude that EPA’s determination is segregable.
The cases on which American Waterways primarily relies in requesting partial vacatur do
not compel a different result. The courts in those cases ordered partial vacatur of regulations that
were plainly divisible. For instance, in American Iron & Steel Institute v. OSHA, OSHA was
required to investigate the feasibility of lead-exposure standards as to each specific industry to
which the standard applied, and when the court found the standard was not feasible in certain
industries, vacatur as to only those industries was the proper course. See 939 F.2d 975, 979–80,
1010 (D.C. Cir. 1991). Likewise, in Petroleum Communications, Inc. v. FCC, the court vacated
FCC’s cellular service regulation only as to licensees that provide coverage in the Gulf of Mexico.
22 F.3d at 1173. The FCC regulatory scheme at issue already divided licensees into geographic
regions. Id. at 1166. And Petroleum Communications involved a special situation in which FCC
had previously exempted Gulf of Mexico licensees from regulations because of the unique fact
that they, unlike licensees anywhere else in the country, used towers that were attached to mobile
oil and gas platforms floating in the ocean. Id. at 1167–68. Here, by contrast, Congress did not
instruct EPA to make specific determinations with respect to classes of vessels. Rather, Congress
commanded EPA to make a single determination taking account of “all” vessels. 33 U.S.C.
§ 1322(f)(3). Partial vacatur therefore would not be appropriate.
46
* * *
There remains the open question of how long EPA will be given to address deficiencies on
remand. By statute, EPA must make its “determination within 90 days of the date of” a state’s
application. 33 U.S.C. § 1322(f)(3). EPA’s review should therefore be prompt. On the other
hand, EPA has yet to finalize its guidance on how the agency should consider costs in making a
determination under Section 321(f)(3). Mot. for Recons. at 4 (noting that “[t]he agency is now
developing cost-consideration guidance”); EPA Costs Memo at 3 (noting additional guidance is
forthcoming). But the lack of formal guidance should not prohibit EPA from proceeding
expeditiously on remand. Congress wanted EPA to act quickly, and so does this court.
Accordingly, the court will order this matter remanded without vacatur for a period of 90 days.
Any request for more time must be made by motion and based on a showing of good cause for an
extension.
V. CONCLUSION AND ORDER
For the foregoing reasons, the court (1) grants in part and denies in part Plaintiff’s Motion
for Summary Judgment, ECF No. 46; (2) grants in part and denies in part Intervenors’ Cross-
Motion for Summary Judgment, ECF No. 52; and (3) denies as moot EPA’s Motion for
Reconsideration of Remand, ECF No. 49.
The court remands the record to EPA for a period of 90 days for further consideration of
the following issues, including any additional fact-gathering the agency deems necessary: (1) the
costs of creating an NDZ in the Puget Sound; (2) the reasonable availability of adequate sewage
treatment facilities in the Puget Sound; and (3) an explanation of EPA’s use of a ratio of
commercial vessels to pumpout facilities to determine whether adequate treatment and removal
47
facilities are reasonably available in the Puget Sound. EPA’s determination is not vacated pending
remand.
Dated: November 30, 2020 Amit P. Mehta
United States District Court Judge
48