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Dubois v. Thomas

Citation: 17 ELR 21008
No. No. 86-2447, 820 F.2d 943/26 ERC 1208/(8th Cir., 06/08/1987) Rev'd

The court rules that the Environmental Protection Agency's (EPA's) duties under §309(a)(3) of the Federal Water Pollution Control Act (FWPCA) to investigate and make findings on alleged FWPCA violations and to take enforcement action if a violation is found are discretionary. The court first rules that the plain language of §309(a)(3) imposes only discretionary duties to investigate and make findings on alleged violations of the FWPCA. Further, the district court erred in substituting its judgment for that of EPA. EPA's interpretation is adequately supported by the statutory language and is consistent with the FWPCA's objectives by allowing the agency to efficiently allocate its enforcement resources. The court next rules that EPA's duty under §309(a)(3) to take enforcement action once a violation is found is also discretionary. While §309(a)(3)'s requirement that EPA "shall" take enforcement action once a violation indicates that EPA's duty is mandatory under one rule of statutory construction, the principle that agency decisions not to enforce are unsuitable for judicial review leads to the opposite conclusion. The structure of the FWPCA supports EPA's interpretation, while the legislative history is inconclusive. In view of the ambiguous nature of the statutory language and legislative history, EPA's interpretation is a permissible construction of §309(a)(3).

[The district court decision is published at 17 ELR 20245.]

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

Counsel for Defendants-Appellants
Karen Florini
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2721

Before LAY, Chief Judge, WOLLMAN and TIMBERS,* Circuit Judges.