ST. LOUIS – The U.S. 8th Circuit Court of Appeals has affirmed and vacated in part a decision involving a city's allegations that the U.S. Environmental Protection Agency exceeded its authority regarding the total maximum daily load (TMDL) for a stream.
In the case of Kennett v. the EPA, the 8th Circuit ruled April 9 to affirm the decision of the U.S. District Court for the Eastern District of Missouri, Cape Girardeau on two of four counts, vacating and remanding two counts to the district court.
The city of Kennett sued the Environmental Protection Agency and Regional Administrator of EPA Region Seven Karl Brooks on three counts. The first count involves the allegation that the agency exceeded its authority in approving a TMDL for a stream referred to as Buffalo Ditch. Kennett's wastewater treatment plant is a source of pollutants into Buffalo Ditch.
Under the Clean Water Act, in pursuit of water quality standards the EPA is supposed to enforce “effluent limitations” and a total maximum daily load for various pollutants
The second count that the city brought against the agency alleged that the EPA “acted arbitrarily and capriciously.” The third count alleges the agency failed to provide notice of its intentions and actions. A fourth count, according to court documents, asks for relief based on U.S.C. §705, which defines administrative costs.
What the city was asking for was that the U.S. District Court for the Eastern District of Missouri to declare the TMDL to be unlawful, vacate and remand the issue to the EPA and enjoining its enforcement on the matter. The court ordered the parties to file cross-motions for summary judgment and later granted judgment to the EPA.
The U.S. Court of Appeals for the 8th Circuit Judges Steven Colloton, Duane Benton and Ralph Erickson ruled to affirm counts three and four. As for the first two counts, the judges have decided these should be vacated and remanded to the lower court.
The appeals court suggests the Cape Girardeau court look at the merits of both initial counts and address issues in the first count.
Providing extensive case law, the court showed how determining whether an action is ripe for judicial review requires looking at hardships for involved parties and the appropriateness of judicial decision on these types of matters.
"Fitness," the court says, depends on whether a case “would benefit from further factual development” citing Iowa League, 711 F.3d at 867.
In addition, the appeals court suggests that the lower court should not have granted the EPA summary judgment on counts one and two, which relates to the decision to vacate and remand these counts.