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Dubois v. EPA

Citation: 17 ELR 20245
No. No. 86-4113-CV-C-5, 646 F. Supp. 741/(W.D. Mo., 09/22/1986)

The court rules that § 309(a)(3) of the Federal Water Pollution Control Act (FWPCA) imposes a mandatory duty on the Environmental Protection Agency (EPA) Administrator to make a finding whether a violation occurred once an allegation has been made under the FWPCA's citizen suit provision and to take enforcement action if a violation is found. Noting a split in authority in the caselaw, the court agrees with the minority position that the Administrator has a mandatory duty under FWPCA § 309 to make a finding whether a violation has occurred. To allow EPA to ignore evidence of illegal discharges once such information is presented to the agency would subvert the purpose of the citizen suit provision. The court rules that once a violation has been found, the duty to take enforcement action is mandatory. Having found the duties of § 309(a)(3) to be nondiscretionary, the court holds that it has subject matter jurisdiction to hear a citizen suit action brought under FWPCA § 505 alleging illegal sewage discharges from a city sewage treatment system onto plaintiffs' property. The court also holds that an abatement order issued by the Missouri Department of Natural Resources does not nullify EPA's duty under § 309.

The court holds that EPA has met its duties under FWPCA § 308 concerning discharge monitoring and recordkeeping. The requirements of § 308 were incorporated into the city's national pollutant discharge elimination system permit, and thus EPA's duties under § 308 would come within its nondiscretionary duties under § 309 once a violation of the permit had been found. The court holds that EPA has a mandatory duty under FWPCA § 210 to make an annual survey of treatment plants built with federal funds to determine their efficiency, rejecting EPA's argument that § 210 only requires a general survey and not a survey of each plant. The court notes that its finding of a nondiscretionary duty under § 210 provides another source of jurisdiction for the citizen suit. The court next holds that EPA does not have a nondiscretionary duty under FWPCA § 102 to conduct joint investigations with other agencies concerning the discharge of sewage, since the language used in § 102 is "authorized" rather than "shall," but notes that an investigation is mandatory under § 309.

Counsel for Plaintiffs
Karen K. Howard, James F. Ralls Jr.
William M. Quitmeier & Assoc.
1511 NE Parvin Rd., Kansas City MO 64116
(816) 452-7400

Counsel for Defendants
Vernon A. Poschel, Ass't U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
(816) 374-3122