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Scott v. Hammond, City of

Citation: 14 ELR 20631
No. Nos. 81-2884, -2885, 741 F.2d 992/21 ERC 1474/(7th Cir., 08/16/1984) Dismissal of fed. defendants rev'd

The court rules that Environmental Protection Agency (EPA) inaction in response to the failure of a state to submit total maximum daily loads (TMDLs) for waters that will not attain water quality standards after implementation of technology-based effluent limitations may be challenged in a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA). The court first rules that alleged defects in the content of water quality standards for Lake Michigan approved by EPA may not be challenged in a citizen suit, but only in an action brought under the Administrative Procedure Act (APA). Appellant's effort to revise its complaint to state a claim under the APA fails.

The court next rules that the district court erred in rejecting on similar grounds appellant's claim concerning the lack of TMDLs for Lake Michigan. Section 303(d) of the FWPCA requires the states to submit TMDLs for lakes and rivers for which effluent limits will not achieve the water quality standards, and EPA must either approve the TMDLs or disapprove them and promulgate substitutes. A state's prolonged failure to propose TMDLs is tantamount to submission of no TMDLs. Faced with such a case, EPA has a non-discretionary duty to review the state "submittal" and to approve or disapprove it. Upon disapproval, the Agency must promulgate substitute TMDLs if the state does not timely correct the deficiency. The court rejects EPA's argument that Congress intended to give the states discretion over whether to establish TMDLs. There is no indication that Congress intended to allow state inaction to frustrate an integral part of its clean water scheme. The Supreme Court rejected a similar argument with regard to another FWPCA provisionin E.I. DuPont de Nemours & Co. v. Train, 7 ELR 20191. The court also rejects EPA's contention that Congress' failure to explicitly require EPA intercession in the case of state inaction under § 303(d), in contrast to express requirements to do so in other sections, defeats appellant's non-discretionary duty claim. It is clear that § 303(d) would require EPA action if a state made a formal submittal stating that TMDLs were not necessary. State inaction should produce no different result. The court finds that sufficient time has passed since the deadline for TMDL proposal for Lake Michigan to require EPA action and that the district court's dismissal of appellant's TMDL claim was thus erroneous.

Counsel for Appellant
Joseph Caraganis
150 N. Wacker Dr., Chicago IL 60606
(312) 782-1905

Counsel for Appellee
Dan Webb, U.S. Attorney
219 S. Dearborn St., Chicago IL 60604
(312) 353-6742

William L. Want, Robert L. Klarquist, Wendy Jacobs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219

Dorothy Attermeyer
Environmental Protection Agency
230 S. Dearborn St., Chicago IL 60604
(312) 886-6718

Before PELL and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*