MORRISON C. ENGLAND, Jr., District Judge.
This case was closed on May 15, 2015, after the Court determined that the action was moot. ECF No. 51. On June 4, 2015, Plaintiffs filed a Motion for Reconsideration based on newly discovered evidence. ECF No. 53. The Court granted that Motion for the limited purpose of obtaining further briefing as to an argument Plaintiffs had raised for the first time in their Reply brief to that Motion. ECF No. 61. For the following reasons, Plaintiffs' Motion for Reconsideration is now DENIED.
The Southern California Alliance of Publically Owned Treatment Works ("SCAP") and the Central Valley Clean Water Association ("CVCWA") (collectively "Plaintiffs") are organizations whose members treat and recycle wastewater. Pursuant to the Clean Water Act, Plaintiffs' members must obtain National Pollutant Discharge Elimination System ("NPDES") permits in order to release treated water into the environment. These permits are issued by the California Regional Water Quality Control Boards, the State Water Resources Control Board ("State Water Board"), and sometimes the United States Environmental Protection Agency ("EPA"). However, it is the EPA that promulgates formal test methods for determining whether discharged water is deemed "toxic." The permits contain monitoring requirements that "must be conducted according to test procedures approved under 40 CFR part 136." 40 CFR 122.41(j)(4). The formally approved test procedures include the whole effluent toxicity ("WET") test methods, which measure the biological effects (survival, growth and/or reproduction) on aquatic organisms exposed to environmental samples.
In 2002, the EPA ratified a number of biological WET test methods to be applicable for use in the NPDES program.
In 2010, EPA published a guidance document ("2010 Guidance") regarding a new method of analyzing WET test data for the NPDES program—the Test of Significant Toxicity ("TST"). Pursuant to 40 CFR 136, all WET test methods must be conducted using five concentrations and a control.
In May 2013, the Deputy Regional Administrator of EPA's Region 9 sent a memorandum to EPA headquarters asking for clarification of the minimum number of test concentrations required to appropriately utilize the TST approach. AR000030-32. In response, a headquarters representative stated that the two-concentration design was not acceptable as the promulgated WET methods require "a control plus five effluent concentrations under the methods' test acceptability criteria." AR000028.
An ATP request can either be nationwide (40 CFR 136.4) or for limited use (40 CFR 136.5). While nationwide requests must be approved by the National Coordinator, a limited use request can be approved by the EPA's Regional ATP Coordinator, who has the discretion to restrict the use of the ATP to a specific facility or "to all discharger[s] or facilities (and their associated laboratories) specified in the approval for the Region." 40 CFR 136.5.
On February 12, 2014, the State Water Board asked the Regional ATP Coordinator to approve the two-concentration TST as an ATP for all of California. In error, the request referred to 40 CFR 136.4, despite the fact that the request did not ask for the approval of a nationwide ATP. On March 17, 2014, the EPA approved the two-concentration TST test design as a limited use ATP for NPDES permits issued in California, finding that the two-concentration TST approach was an acceptable equivalent to the five-concentration test evaluated using NOEC-LOEC
On June 25, 2014, Plaintiffs filed this action alleging that Defendants EPA and Jared Blumenfeld, as the Regional Administrator of EPA Region 9, (collectively "Defendants") violated the Administrative Procedure Act, 5 U.S.C. §§ 551-559, and regulations implementing the Clean Water Act, 33 U.S.C. §§ 1251-1376.
On February 11, 2015—just before Defendants' Reply to its Cross-Motion for Summary Judgment was due—the EPA withdrew its ATP approval of the two-concentration TST testing method "effective immediately."
The Court found that it was "highly unlikely that this exact situation will occur again in the future." The Court also reasoned that any future case about the issuance of an ATP to approve the two-concentration TST approach would be based on a new record. ECF No. 51 at 4. Additionally, the Court stated the allegedly wrongful behavior could not reasonably be expected to reoccur because "[t]he EPA can/not initiate the ATP process. . . . [a]nd there is no indication that the State Water Board will submit another ATP request to the EPA to use the two-concentration TST test method for all of California."
On June 4, 2015, Plaintiffs filed a Motion for Reconsideration based on newly discovered evidence in the form of a State Water Board internal memorandum ("the Memo") discussing the effect of the EPA's withdrawal of the State Water Board's ATP request on future NPDES permitting. ECF No. 53-2, Ex. A. The Memo states that "[t]he three reasons for withdrawal, as described in the rejection letter, are clearly identified as procedural errors" and that the withdrawal was not based on "the substantive TST statistical analysis or the scientific validity of a two-concentration test design."
In between the filing of this Motion and the filing of the Reply, Plaintiffs acquired more documentation from a previous Freedom of Information Act ("FOIA") request.
Based on this newly raised argument, the Court granted Plaintiff's Motion for Reconsideration for the limited purpose of permitting simultaneous further briefing on the impact of the evidence Plaintiff had identified on the issues raised in this case. In that Order, however, the Court made clear that because the case "centered entirely around the ATP request and its approval. . . that issue was now moot" given the EPA's withdrawal of the approval.
The Court has since received those simultaneous briefs, additional further briefing and an amicus brief. Having reviewed the record in its entirety, Plaintiffs' Motion is now DENIED on the merits.
A motion for reconsideration is properly brought pursuant to either Federal Rule of Civil Procedure 59(e) or Rule 60(b).
In addition, Rule 60(b) provides:
Further, Local Rule 230(j) requires that a motion for reconsideration state "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal., Local Rule 230(j)(3)-(4).
It is a well-established maxim that a court should not revisit its own decisions unless extraordinary circumstances show that its prior decision was wrong.
Plaintiffs bring this Motion for Reconsideration on the basis of the discovery of new evidence. Relief from judgment based on newly discovered evidence is warranted when (1) the moving party provides "newly discovered evidence"; (2) the moving party demonstrates that prior due diligence could not have discovered this evidence; and (3) this new evidence likely would have changed the disposition of the case.
First and foremost, the documents uncovered post-judgment would have had no impact on Plaintiffs' challenge to the ATP approval. While Plaintiffs complain that there is still a live controversy because permits are still being issued containing the two-concentration TST approach, the Court already considered and rejected this argument when it ruled on the parties' original motions for summary judgment. ECF No. 51 at 6;
In the face of that conclusion, Plaintiffs have now dramatically switched tactics and argue that their case is not moot because "[a]t its core, Plaintiffs . . . fundamentally challenge the ability of the EPA to utilize guidance documents in the same way as a promulgated rule . . . to regulate Plaintiffs' members' activities." Pls.' Further Brief, ECF No. 67, at 7. More specifically, Plaintiffs contend that the 2010 TST guidance documents are now being impermissibly used as a regulation.
Plaintiffs of course attempt to argue to the contrary, reasoning that "[b]ecause of a grave concern that [permits might still issue even if the ATP approval was withdrawn], Plaintiffs raised in their Complaint the issue of the 2010 TST guidance documents being used as a regulation before being properly incorporated into the applicable regulations."
Throughout this entire case, through both complaints, through briefing on Plaintiffs' request for preliminary injunctive relief, through briefing on the parties' cross-motions for summary judgment, and even most of the way through the original briefing on Plaintiffs' Motion for Reconsideration, the only issue Plaintiffs raised was the EPA's approval of the ATP. It was not until Plaintiff's filed their Reply to their Motion for Reconsideration that they switched gears. Before then, Plaintiffs never argued that Defendants were impermissibly relying on guidance documents to justify decisions.
Indeed, Plaintiffs gave the 2010 TST guidance documents barely a mention in the FAC. For example, while Plaintiffs do cite the documents in the "Legal Background" section of their pleading, it is clearly by way of
The parties' course of conduct also makes clear that neither side believed Plaintiffs were challenging Defendants' reliance on guidance documents as opposed to the ATP approval. Throughout extensive briefing on multiple issues, the guidance documents were never raised as a basis for Plaintiffs' requested relief. Nor did Plaintiffs include any claim based on the guidance documents in the parties' joint status report.
This makes sense because throughout this case, the permits were being issued pursuant to the ATP. There was no reason to challenge the EPA's reliance on the guidance documents because those documents were not being used to justify issuing permits. Indeed, even if Plaintiffs had wanted to raise such a challenge in their FAC, any such claim would have been speculative and unripe at the time.
Because Plaintiffs failed to adequately allege a claim challenging Defendants' reliance on the 2010 TST guidance documents, they cannot pursue that claim now. It was simply too late to pursue a new claim once summary judgment had been granted and the parties had reached the tail end of briefing on Plaintiffs' Motion for Reconsideration.
For the reasons set forth above, Plaintiffs' Motion for Reconsideration (ECF No. 53) and Defendants' Motion to Strike (ECF No. 75) are DENIED.
IT IS SO ORDERED.
