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Natural Resources Defense Council v. Train

Citation: 5 ELR 20046
No. No. 74-1443, 510 F.2d 692/7 ERC 1209/(D.C. Cir., 12/05/1974) Rev'd in part & remanded

In a suit challenging EPA 's failure to issue effluent limitation guidelines under § 304 (b)(1)(A) of the FWPCA, plaintiffs' noncompliance with the 60-day notice requirement of the Act's citizen suit provision does not deprive the court of jurisdiction over the case. The citizen suit provision was intended to expand, rather than limit, jurisdiction, which can also be grounded on the general federal question statute or on the Administrative Procedure Act. Where notice has not been given to the EPA Administrator, however, the court should, on the Administrator's petition, stay its hand if it believes that further agency action capable of obviating the dispute is underway. The lower court did not abuse its discretion in setting a timetable for the issuance by EPA of guidelines for 27 categories of pollutants named in § 306 of the FWPCA, but it erred in ruling that the Act also required publication within one year of its passage (that is, by October 18, 1973) of guidelines for classes and categories of pollutants not specified in § 306. However, under § 402, dischargers of pollutants must have obtained a permit by December 31, 1974, in order to have a defense against prosecution. This indicates that Congress contemplated that guidelines for all categories of pollutants, including those not named in § 306, would be issued by that date, and the court accordingly directs the Administrator to publish all such guidelines by December 31, 1974. Should the Administrator find it infeasible to meet that deadline for particular categories, or determine that it is inappropriate to issue any guidelines at all, he may apply to the district court for a modification and for a stay of the December 31 deadline pending a decision on the merits of his petition for an extension or exception. The court does not reach the question of whether the duty to publish guidelines for categories not named in § 306 is a non-discretionary duty covered by § 505 (the citizen suit provision) or whether the Administrator's failure to issue guidelines should more properly be challenged under the APA as an abuse of discretion or as agency action unreasonably delayed.

Counsel for Plaintiff
Edward L. Strohbehn, Jr.
J. G. Speth
Natural Resources Defense Council
1710 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendant
Lawrence E. Shearer
Carl Strass
Department of Justice
Washington, D.C. 20530