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Ohio Valley Environmental Coalition v. McCarthy

ELR Citation: 45 ELR 20122
Nos. 3:15-0277, (S.D. W. Va., 06/19/2015) (Chambers, C.J.)

A district court dismissed environmental groups' CWA citizen suit against EPA for failing to respond in writing to their administrative petition seeking withdrawal of West Virginia's NPDES permit program, but held that the groups may go forward with their claim that the Agency's failure to timely respond to their petition constitutes "agency action unlawfully withheld or unreasonably delayed" in violation of the APA. The CWA does not impose a mandatory duty on EPA to respond to a petition brought pursuant to §402(c)(3); the statute makes no attempt to specify when, if ever, EPA must hold a public hearing or when, if ever, the Agency must make a determination regarding the adequacy of a state NPDES permit program. The court, therefore, dismissed the groups' CWA claim. As for their APA claim, jurisdiction for ultimate review is exclusively held by the U.S. Court of Appeals. Nevertheless, there is some authority to suggest that a district court may properly entertain a suit alleging unreasonable delay and seeking that a court compel agency action. The court therefore stayed the matter to allow the groups an opportunity to bring the APA claim directly in the U.S. Court of Appeals.