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9th Circ OKs Montana exception to water pollution limits


Headquarters of the United States Environmental Protection Agency in Washington, D.C. REUTERS/Andrew Kell

  • The EPA “reasonably construed” the Clean Water Act when approving exception to pollutant caps
  • Ruling partly reverses lower court decisions

NEW YORK (Reuters) – A federal appeals court ruled Wednesday that the Environmental Protection Agency (EPA) did not violate the Clean Water Act (CWA) when it approved less stringent water pollution limits in Montana for some wastewater treatment plants.

A unanimous panel of the 9th U.S. Circuit Court of Appeals said that the EPA correctly interpreted the CWA when it approved Montana’s request to allow, for up to 17 years, three dozen wastewater treatment facilities to discharge more phosphorous and nitrogen into waterways than normally permitted. The decision partially reverses a lower court ruling.

Contrary to claims conservation group the Upper Missouri Waterkeeper made in its complaint, the EPA can take into account the costs of complying with the limits when approving such exceptions, known as variances, the panel ruled.

Upper Missouri Waterkeeper’s director, Guy Alsentzer, said the ruling contributes to the erosion of “science-based standards that protect waterway health.”

The EPA did not immediately respond to a request for comment.

Montana Department of Environmental Quality spokesperson Moira Davin said the ruling “provides clarity that a variance can be a useful tool” in protecting the environment.

Montana in 2017 obtained EPA approval for the exception to the state’s numerical limits for phosphorous and nitrogen. Phosphorous and nitrogen can harm marine plant and animal life by spurring the growth of harmful algae blooms.

The state said it would be cost-prohibitive for the municipal wastewater plants to meet the more stringent limits in the short term, requiring the installation of costly reverse osmosis technology.

In 2019, Chief U.S. District Judge Brian Morris in Great Falls, Montana, ruled that the EPA had correctly read the CWA as permitting variances based on the economic impact of complying with pollutant limits. However, he separately held that the exception’s 17-year term was arbitrary and capricious because it did not require the plants in question to comply with concentration limits when it expired. Both sides appealed.

Writing for the panel, U.S. Circuit Court Paul Watford said that Congress and the CWA’s text were silent on the issue of whether the statute’s relevant provision authorizes states to consider compliance costs when devising a variance.

In that context, EPA “reasonably construed” the statute as permitting it to consider such costs, because it states water-quality standards should be achieved only “wherever attainable,” Watford wrote.

Turning to EPA’s appeal of the lower court ruling on the variance’s maximum term, the panel disagreed with Morris’ holding that EPA’s had acted arbitrarily. The “plain language” of the regulations do not require the concerned plants to comply with concentration limits when the term ends, he said.

Watford was joined by U.S. Circuit Judges Richard Paez and Danny Boggs, a 6th Circuit judge sitting by designation.

The case is Upper Missouri Waterkeeper v. USEPA, et al, 9th U.S. Circuit Court of Appeals, No. 19-35898.

For Upper Missouri Waterkeeper: Janette Brimmer of Earthjustice

For State of Montana Department of Environmental Quality: Kurt Moser with the State of Montana Department of Environmental Quality

For USEPA: John Smeltzer with the U.S. Department of Justice

Read more:

Group sues EPA over approval of Montana water quality standards

Sebastien Malo reporters on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com



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