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` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`CIV. NO. 20-cv-2063
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`GUNPOWDER RIVERKEEPER,
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`P.O. Box 156
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`Monkton, MD 21111,
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`Plaintiff,
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`v.
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`ANDREW WHEELER, in his official capacity
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`as Administrator of the United States
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`Environmental Protection Agency,
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`and
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`UNITED STATES ENVIRONMENTAL
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`PROTECTION AGENCY,
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`1200 Pennsylvania Ave., N.W.
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`Washington, DC 20460,
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`Defendants.
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`_________________________________________ )
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`This complaint challenges a final action of the United States Environmental
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`Protection Agency and its Administrator (collectively, “EPA” or “Defendants”) pursuant to the
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`Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1388 (the “Clean Water Act” or
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`“CWA”) and the Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706 (the “APA”).
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`2.
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`Plaintiff Gunpowder Riverkeeper challenges EPA’s October 3, 2016 approval of
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`the Total Maximum Daily Load of Polychlorinated Biphenyls in the Gunpowder River and Bird
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`River Subsegments of the Gunpowder River Oligohaline Segment, Baltimore County and
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`Harford County, Maryland (the “Gunpowder and Bird rivers TMDL” or “TMDL”), submitted by
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 2 of 14
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`the Maryland Department of the Environment (“MDE”). Exs. A; B. Maryland’s tidal Gunpowder
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`and Bird rivers suffer from polychlorinated biphenyl (“PCB”) pollution that violates applicable
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`water quality standards. The TMDL, required to remediate pollution in the rivers, violates the
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`CWA by failing to allocate pollution loads to all sources of PCBs.
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`3.
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`Specifically, the Gunpowder and Bird rivers TMDL did not allocate a pollution
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`load for the major source of PCBs in the rivers: resuspension and diffusion of PCB-laden bottom
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`sediment. Ex. A, at 19.
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`4.
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`Under Section 303(d)(2) of the CWA, 33 U.S.C. § 1313(d)(2), Defendants had a
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`duty to disapprove the TMDL for its violation of the CWA.
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`5.
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`6.
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`Defendants failed to perform this duty and instead approved the TMDL.
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`Plaintiff commences this action under the citizen suit provision of the CWA, 33
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`U.S.C. § 505(a)(2), seeking declaratory relief declaring that Defendants failed to perform a
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`nondiscretionary duty in violation of the CWA and injunctive relief to compel Defendants to
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`disapprove the illegal TMDL.
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`7.
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`Plaintiff also claims that Defendants’ approval of the TMDL is “arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
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`706(2)(a).
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`PARTIES
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`8.
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`Plaintiff Gunpowder Riverkeeper (“GRK”) is a 501(c)(3) nonprofit organization
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`incorporated in Maryland.
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`9.
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`GRK is a grassroots, advocacy-based membership organization dedicated to
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`protecting, conserving, and restoring the Gunpowder River and its watershed, as well as
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`strengthening ties within the communities that benefit from the river.
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 3 of 14
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`10.
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`GRK has approximately 370 members who live, work, and recreate along the
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`Gunpowder and Bird rivers. GRK’s members benefit from water quality protections for the
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`designated uses of these waterways, including fishing and shellfish harvesting.
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`11.
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`Theaux M. Le Gardeur, Executive Director and member of GRK, owns and
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`operates a fly-fishing shop and fishing guide service that caters to fishers on the Gunpowder
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`River and its tributaries. Mr. Le Gardeur also fishes, wades, canoes, and boats in the Gunpowder
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`and Bird rivers and hikes, photographs, and enjoys scenery along the rivers’ banks.
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`12.
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`GRK’s members, including Mr. Le Gardeur, suffer environmental, aesthetic,
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`recreational, and professional injuries as a result of EPA’s unlawful approval of the TMDL,
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`which fails to include pollution loads for all sources of PCBs, thus prolonging the rivers’
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`violation of their designated uses.
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`13.
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`As a result of EPA’s approval of ongoing PCB pollution, GRK’s members,
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`including Mr. Le Gardeur, refrain from certain activities along these waterways, like
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`consumption of fish, or risk exposure to carcinogenic PCBs if they undertake those activities.
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`The continued pollution of the Gunpowder and Bird rivers also adversely affects members’
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`enjoyment of recreational activities and the ability to generate income from the waterways. GRK
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`members, including Mr. Le Gardeur, would engage in these activities were the PCB pollution
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`abated.
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`14.
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`If the unlawful TMDL is replaced by a TMDL compliant with the CWA and
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`APA, then the harm to Plaintiff’s members would be redressed.
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`15.
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`Defendant EPA is the federal agency responsible for the implementation of
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`Section 303 of the CWA, 33 U.S.C. § 1313.
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 4 of 14
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`16.
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`Defendant Andrew Wheeler is the Administrator of EPA. He is charged with the
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`supervision and management of all decisions and actions of the agency, including those pursuant
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`to the CWA. Administrator Wheeler is being sued in his official capacity.
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`JURISDICTION AND VENUE
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`17.
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`This Court has jurisdiction over this action pursuant to Section 505(a) of the
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`CWA, 33 U.S.C. § 1365(a)(2), and 28 U.S.C. § 1331.
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`18.
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`On February 27, 2020, Plaintiff mailed Defendants notice of intent to bring this
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`action, as required by the CWA and implementing regulations. 33 U.S.C. § 1365(b)(2); 40
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`C.F.R. § 135.2 and 135.3. See Exs. C; D.
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`19.
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`Pursuant to 40 C.F.R. § 135.2, a copy of the notice was provided to all other
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`required parties, including the U.S. Attorney General. Ex. D
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`20.
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`Sixty days have passed since Plaintiff’s service of notice, as required under 33
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`U.S.C. § 1365(b)(2). See Exs. C; D.
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`21.
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`Venue in this District is proper, pursuant to 28 U.S.C. § 1391(e)(1), because
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`Defendants reside in this District.
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`STATUTORY AND REGULATORY FRAMEWORK
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`22.
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`In 1972, Congress enacted the Clean Water Act to “restore and maintain the
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`chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The
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`goals of the CWA are to eliminate pollution of the nation’s waterways and to attain water quality
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`that is protective of wildlife, recreation, and other uses. 33 U.S.C. § 1251(a)(1), (2).
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`23.
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`To achieve Congress’ goals, Section 303 of the CWA requires each state to
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`establish and implement water quality standards (“WQS”), subject to review and approval by
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`EPA. 33 U.S.C. § 1313(a)–(c).
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`24. WQS consist of the “designated uses” of a state’s waters and the water quality
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`criteria necessary to protect such uses. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 130.2(d).
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`25.
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`The CWA requires each state to identify and list the bodies of water within its
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`boundaries that fail to attain WQS. 33 U.S.C. § 1313(d)(1)(A).
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`26.
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`27.
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`The resulting list of impaired waters is known as a “Section 303(d) list.”
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`States must establish TMDLs for each body of water on their Section 303(d) lists
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`at levels necessary to implement WQS. 33 U.S.C. § 1313(d)(1)(C).
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`28.
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`TMDLs must be set for each pollutant that prevents, or is expected to prevent, a
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`body of water from attaining WQS. 40 C.F.R. § 130.7(c)(1)(ii).
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`29.
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`Section 303(d) requires that each TMDL be set at a level “necessary to implement
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`the applicable water quality standards . . . .” 33 U.S.C. § 1313(d)(1)(C).
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`30.
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`Under EPA’s implementing regulations, a TMDL is “[t]he sum of the individual
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`[wasteload allocations] for point sources and [load allocations] for nonpoint sources and natural
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`background.” 40 C.F.R. § 130.2(i).
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`31.
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`TMDLs prepared by states must be submitted to EPA, triggering the agency’s
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`duty to “either approve or disapprove” the TMDL within thirty days. 33 U.S.C. § 1313(d)(2).
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`32.
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`If EPA disapproves the state’s submission, the agency must promulgate its own
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`TMDL to implement the applicable WQS. Id.
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`FACTS
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`33.
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`On October 3, 2016, EPA approved Maryland’s TMDL for PCBs in the
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`Gunpowder and Bird rivers. Ex. B.
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`34.
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`PCBs are manmade chemicals that persist in the environment and accumulate in
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`plant and animal tissue.
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`35.
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`PCBs can also accumulate in human tissue through the consumption of PCB-
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`contaminated foods, including fish that live in PCB-contaminated bodies of water, such as the
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`Gunpowder and Bird rivers.
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`36.
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`Exposure to PCBs has been linked to cancer and other adverse effects on the
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`immune, reproductive, nervous, and endocrine systems.
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`37.
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`Some PCBs that are deposited into the water column bind to suspended sediment,
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`which then settle on the riverbed.
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`38.
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`PCB-contaminated bottom sediment subsequently discharges a significant
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`quantity of PCBs back into the water column.
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`39.
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`This process occurs via resuspension of PCB-laden sediment and diffusion of
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`dissolved PCBs into the water column.
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`40. Maryland’s WQS designate the tidal sections of the Gunpowder and Bird rivers
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`for uses related to water contact recreation, fishing, protection of aquatic life and wildlife, and
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`shellfish harvesting. Md. Code Regs. 26.08.02.08(J).
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`41.
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`Between 2006 and 2008, Maryland’s water quality monitoring program revealed
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`that both rivers violate WQS due to high concentrations of PCBs in fish tissue.
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`42. Maryland added the Gunpowder River to the state’s Section 303(d) list as an
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`impaired waterbody, requiring a TMDL for PCBs, in 2006. Maryland added the Bird River to its
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`Section 303(d) list as an impaired waterbody, requiring a TMDL for PCBs, in 2008.
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`43.
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`In the Gunpowder and Bird rivers TMDL, MDE estimates that “the transport of
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`PCBs to the river from bottom sediment via resuspension and diffusion is currently . . . the major
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`source of PCBs” in both rivers. Ex. A, at 21.
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`44. MDE predicts a net PCB load of 2,457 grams per year from bottom sediment in
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`the Gunpowder River. The second largest identified source, the C.P. Crane Generating Station,
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`accounts for 155 grams per year. Id.
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`45. MDE predicts a net PCB load of 303 grams per year from bottom sediment in the
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`Bird River. The second largest identified source, Gunpowder River influence, accounts for 49.2
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`grams per year. Id.
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`46.
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`The Gunpowder and Bird Rivers TMDL estimates that compliance with PCB
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`WQS in the Gunpowder River will take 49 years. Id. at 28.
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`47.
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`The Gunpowder and Bird Rivers TMDL estimates that compliance with PCB
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`WQS in the Bird River will take 93 years. Id.
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`48. MDE did not establish load allocations in the TMDL for PCBs from bottom
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`sediment in the Gunpowder and Bird rivers. Id. at 19, 21.
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`49. MDE stated: “The transport of PCBs from bottom sediments to the water column
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`through resuspension and diffusion can also be a major source of PCBs in estuarine systems.
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`However, . . . this is not considered a source under the framework of this TMDL.” Id. at 19
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`50. MDE further stated:
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`Although the transport of PCBs to the river from bottom
`sediment via resuspension and diffusion is currently estimated to
`be the major source of PCBs, this load contribution is resultant
`from other point and nonpoint source inputs (both historic and
`current) and is not considered to be directly controllable source.
`Therefore, this load will not be assigned a baseload or allocation.
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`The Gunpowder and Bird rivers TMDL assigns load allocations and load
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`Id. at 21.
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`51.
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`reductions for other non-point sources, including atmospheric deposition of PCBs. Id. at 35.
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`7
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 8 of 14
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`52.
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`To achieve WQS compliance for the Bird River, the TMDL requires a 70%
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`reduction in atmospheric deposition of PCBs and a 70% reduction of PCBs in non-regulated
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`watershed runoff into the Bird River. Id.
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`53. MDE did not evaluate whether greater reductions in PCB discharges would have
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`led to faster compliance with WQS in the Bird River. Id. at 28
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`54.
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`Although atmospheric deposition and non-regulated runoff were assigned load
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`allocations for the Gunpowder River, no reductions were assigned for those non-point sources.
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`Id. at 35.
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`55. MDE explained that eliminating all point and non-point sources of PCBs to the
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`Gunpowder River would reduce the time to WQS compliance from 49 years to 44 years. Id. at
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`28.
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`56. MDE stated that achieving WQS compliance in the Gunpowder River five years
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`sooner “is not critical.” Id.
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`57. MDE did not require load reductions for any point or non-point source of PCBs
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`for the Gunpowder River. Id. at 35.
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`58.
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`Prior to submitting the TMDL to EPA, MDE sought and obtained public
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`comments on the proposed TMDL. Ex. E.
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`59.
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`On September 18, 2015, GRK provided comments to MDE on the proposed
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`TMDL. Ex. F.
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`60.
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`In its comments to MDE, GRK objected to the proposed TMDL on the grounds
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`that, among other things: 1) “[t]he methodology and science presented in the draft shows only a
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`preference of the Department to promulgate a draft TMDL without sufficient evidence that . . .
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`all potential sources of PCB’s are included in the TMDL;” 2) that “a strong spatial relationship
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`appears between PCB concentrations in sediment and fish;” and 3) “the proposed draft does not
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`properly safeguard aquatic uses of the waterbody or public health for those consuming fish from
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`these waters within a reasonable timeframe.” Id.
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`61.
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`On October 30, 2015, MDE submitted the Gunpowder and Bird rivers TMDL to
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`the Watershed Protection Division of the U.S. Environmental Protection Agency, Region III, for
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`approval. Ex. B.
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`62.
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`63.
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`EPA approved the TMDL on October 3, 2016. Id.
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`EPA approved the Gunpowder and Bird rivers without an explanation for not
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`assigning a load allocation to PCBs from bottom sediment. Id. at 9.
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`64.
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`EPA stated instead that “[t]he water quality model developed for this TMDL
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`simulates conditions within the water column and sediment as a single system. Therefore
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`exchanges between the sediment and water column are considered internal loading and is not
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`assigned a baseline load or allocation.” Id.
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`65.
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`EPA further stated that “the loads from resuspension and diffusion from bottom
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`sediments are not considered to be directly controllable (reducible) loads . . . so they are not
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`included in the tPCB load and TMDL allocation.” Id. at 17.
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`66.
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`EPA did not explain why some non-point sources are directly controllable and
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`therefore subject to a load allocation, while resuspension and diffusion of PCB-laden bottom
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`sediment is not. Id.
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`67.
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`EPA did not explain its acceptance of MDE’s decision that achieving WQS
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`compliance five years sooner in the Gunpowder is not critical. Id. at 10.
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`68.
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`EPA did not explain its acceptance of MDE’s failure to evaluate the effects of
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`greater reductions in PCB loading in the Bird River. Id.
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 10 of 14
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`FIRST CLAIM FOR RELIEF
`CWA VIOLATION
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`Plaintiff incorporates by reference all allegations contained in paragraphs 1
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`69.
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`through 68 above.
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`70.
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`EPA is required by 33 U.S.C. § 1313(d)(2) and 40 C.F.R. § 130.7(d)(2) to
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`disapprove any TMDL submitted by a state that fails to meet the requirements of the CWA. This
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`duty is mandatory.
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`71.
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`EPA failed to perform such mandatory duty when it approved the TMDL for the
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`Gunpowder and Bird rivers.
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`72.
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`Under 40 C.F.R. 130.2(i), a TMDL must establish load allocations for all
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`nonpoint and natural background sources of the covered pollutant.
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`73.
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`The TMDL for the Gunpowder and Bird rivers failed to allocate loads for all
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`nonpoint sources of PCBs in those rivers.
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`74.
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`Specifically, the TMDL failed to set load allocations for PCBs discharged from
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`bottom sediment in the Gunpowder and Bird rivers.
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`75.
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`In the TMDL, MDE identified bottom sediment as the major source of PCBs in
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`both the Gunpowder River and the Bird River.
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`76.
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`The Gunpowder and Bird rivers TMDL violates the CWA because it failed to
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`establish load allocations for PCBs from bottom sediment.
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`77.
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`EPA’s approval of the TMDL constitutes a failure to perform the agency’s duty to
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`disapprove the Gunpowder and Bird rivers TMDL for violating the CWA.
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 11 of 14
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`SECOND CLAIM FOR RELIEF
`APA VIOLATIONS
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`Plaintiff incorporates by reference all allegations contained in paragraphs 1
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`78.
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`through 77 above.
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`79.
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`EPA’s approval of the Gunpowder and Bird rivers TMDL constitutes an agency
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`action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
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`law” and is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
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`right” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and (C).
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`80.
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`The Gunpowder and Bird rivers TMDL fails to establish load allocations for all
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`sources of PCBs in the impaired rivers, in violation of the CWA and implementing regulations.
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`81.
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`Although the Gunpowder and Bird rivers TMDL establishes load allocations for
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`less significant sources of PCBs, it fails to allocate loads to the most significant source of PCBs
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`in both rivers: resuspension and diffusion from bottom sediment.
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`82.
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`EPA’s approval of the Gunpowder and Bird rivers TMDL is arbitrary and
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`capricious for failing to allocate loads to all sources of PCBs in the Gunpowder and Bird rivers
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`in violation of the CWA. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.2(i).
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`83.
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`The Gunpowder and Bird rivers TMDL also fails to take into account the load
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`allocation for bottom sediment pollution in calculating final waste load allocations and load
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`allocations.
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`84. Without assigning load allocations for bottom sediment pollution, the Gunpowder
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`and Bird rivers TMDL incorporates waste load allocations and load allocations that were
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`calculated without consideration of pollution from the most significant source of PCBs in both
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`rivers.
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`11
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 12 of 14
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`85.
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`EPA’s approval of the Gunpowder and Bird rivers TMDL is, therefore, arbitrary
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`and capricious for failing to adequately account for the largest source of PCB pollution in both
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`rivers.
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`86.
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`Additionally, EPA’s approval of the Gunpowder and Bird rivers TMDL is
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`arbitrary and capricious because the agency failed to offer a reasoned explanation that responds
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`to comments, considers relevant factors, and provides a rational connection between the facts
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`found and the choices made.
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`87.
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`EPA provided no explanation for its acceptance of MDE’s claim that “[a]lthough
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`the transport of PCBs to the river from bottom sediment via resuspension and diffusion is
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`currently estimated to be the major source of PCBs, . . . this load will not be assigned a baseline
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`load or allocation.”
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`88.
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`EPA provided no explanation for its conclusion to accept the Gunpowder and
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`Bird rivers TMDL without assessing the impact of a load allocation for sediment pollution on
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`waste load allocations and load allocations.
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`89.
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`EPA provided no explanation for its assessment that PCB-laden bottom sediment
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`is not reducible and therefore not subject to the assignment of a load allocation, while
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`atmospheric deposition and non-regulated watershed runoff of PCBs are assigned load
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`allocations.
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`90.
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`EPA provided no explanation for accepting MDE’s decision to forego compliance
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`with WQS five years sooner in the Gunpowder River.
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`91.
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`EPA provided no explanation for accepting MDE’s non-point source load
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`reductions in the Bird River without evaluating whether additional reductions would reduce time
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`to compliance with WQS.
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`12
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 13 of 14
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`92.
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`EPA provided no justification for accepting the TMDL’s lengthy compliance
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`timelines as reasonable.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:
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`A.
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`Declare that Defendants have failed to perform nondiscretionary duties in
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`violation of the Clean Water Act, including their failure to disapprove the Gunpowder and Bird
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`rivers TMDL;
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`B.
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`Declare that Defendants’ approval of the Gunpowder and Bird rivers TMDL was
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`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
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`C.
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`D.
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`Vacate Defendants’ approval of the TMDL;
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`Remand the Gunpowder and Bird rivers TMDL to EPA for reconsideration in
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`light of the Court’s decision;
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`E.
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`Direct EPA to abide by its mandatory duties under the CWA, including to
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`disapprove the Gunpowder and Bird river TMDL for failing to include all required load
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`allocations;
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`F.
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`Award Plaintiff the reasonable costs of litigation, including attorneys’ fees and
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`costs; and
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`G.
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`Grant such other relief as the Court deems appropriate.
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`Dated: July 29, 2020
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`Respectfully submitted,
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`/s/ Hope M. Babcock
`Hope M. Babcock (D.C. Bar No. 14639)
`Benjamin M. Barczewski
`Institute for Public Representation
`Georgetown University Law Center
`600 New Jersey Ave. N.W.
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`13
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`Case 1:20-cv-02063 Document 1 Filed 07/29/20 Page 14 of 14
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`Washington, D.C. 20001
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`(202) 662-9535
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`babcock@law.georgetown.edu
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`Counsel for Gunpowder Riverkeeper
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`14
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