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Raymond Proffitt Found. v. EPA

ELR Citation: 26 ELR 21601
Nos. 95-0861, 930 F. Supp. 1088/42 ERC 1702/(E.D. Pa., 04/16/1996)

The court holds that the U.S. Environmental Protection Agency (EPA) violated a mandatory duty under Federal Water Pollution Control Act (FWPCA) §303 by failing promptly to prepare and publish a proposed water quality standard for Pennsylvania. EPA found that Pennsylvania's antidegradation policy failed to comply with federal regulations, but after 19 months the Agency still had not prepared a water quality standard in place of the one that the state prepared. The court first holds that §303 imposes on EPA a mandatory duty. The language and design of the Act support this conclusion. In addition, nothing in the Act authorizes EPA to defer to the state or to put off its obligation to proceed to fulfill this duty until the state promulgation process is finished. The court refuses to follow the rule that for citizen suit purposes under the FWPCA, a non-discretionary duty is imposed only when the statutory provision sets bright-line, date-specific deadlines for specific action. The rule originally was developed to resolve an issue under the bifurcated jurisdictional scheme of the Clean Air Act, and there is no analogous problem under the FWPCA. Applying the rule to the facts of this case would lead to a result that is inconsistent with the FWPCA's goals and §303(c)'s procedural framework. And the Third Circuit has neither adopted nor followed the rule, and therefore it does not bind the court.

The court holds that §303's framework enables the court to infer a reasonable time frame within which the Administrator must act. The 588-day time frame of EPA's action in this case is unreasonable. Congress likely expected that EPA's regional staff and state regulatory officials would be working together on the water quality standard and that EPA would be familiar with the state standard. The court holds that as of September 6, 1994—90 days after the EPA regional administrator notified the state that its water quality standard was not consistent with the Act's requirements and specified the changes necessary to meet those requirements—the Administrator was under a mandatory statutory duty promptly to promulgate a water quality standard for Pennsylvania. The court finds that the environmental effects of EPA's delay are significant and that the administrative record does not support EPA's claim of inconvenience, practical difficulty, and need to prioritize. The court holds that EPA's decision not to promulgate a new or revised water quality standard for Pennsylvania is "not in accordance with law" under the Administrative Procedure Act (APA), 5 U.S.C. §706(2)(A). EPA failed to comply with Agency regulations requiring the Administrator promptly to propose and promulgate a water quality standard if a state does not, within 90 days, adopt changes specified by the regional administrator. The court, therefore, orders EPA to immediately prepare and publish proposed regulations setting forth a revised water quality standard for Pennsylvania.

Counsel for Plaintiff
John W. Wilmer
21 Paxon Hollow Rd., Media PA 19063
(610) 565-2736

Counsel for Defendant
David R. Hoffman, Ass't U.S. Attorney
U.S. Attorney's Office
3310 U.S. CtHse.
601 Market St., Philadelphia PA 19106
(215) 597-7704