Rivers Unlimited v. Costle

No. C-2-78-48 (S.D. Ohio May 3, 1978)

ELR Digest

In a Federal Water Pollution Control Act (FWPCA) § 505 citizen suit seeking to compel the Administrator of the Environmental Protection Agency (EPA) to withdraw Ohio's national pollutant discharge elimination system (NPDES) authority under § 402(c)(3) and to assume enforcement of the state program under § 309(a)(2), the court holds that plaintiffs complied with § 505's notice requirement, plaintiffs were not required to exhaust their administrative remedies prior to filing suit, and the Administrator has a mandatory duty to act under these provisions when aware of widespread FWPCA violations resulting from a state's failure to enforce its permit program. The court addresses several arguments raised in defendant's motion to dismiss. Defendant first argues that the § 402 claim is barred because plaintiffs notice did not refer to § 402. The court holds that although the notice did not specifically refer to the Administrator's § 402 duties, it substantially complied with § 505's notice requirements because it specifically alleged failure to act under § 309. Since both § 402 and § 309 provide for the reimposition of federal enforcement when a state fails to enforce its permit program, defendants were informed of the nature of the complaint even though plaintiff has expanded the scope of the relief it seeks.

Defendant next argues that plaintiffs' § 402 claims should be dismissed for failure to exhaust administrative remedies, relying on Save the Bay, Inc. v. Administrator, 7 ELR 20674 (5th Cir. Aug. 5, 1977), which dismissed an action seeking revocation of a state's NPDES authority because the EPA administrative process was not complete. The court, however, holds that Save the Bay, an original action in the Court of Appeals under § 509(b)(1), does not require completion of the administrative process prior to the filing of a § 505 citizen suit in the district courts.

The court next holds that the Administrator's duties under §§ 309 and 402 are mandatory and therefore its jurisdiction under § 505 is proper. The court finds that the language of these provisions appears on its face to impose such a mandatory duty. Despite the use of similar language in § 309(a)(3), the Fifth Circuit held in Sierra Club v. Train, 7 ELR 20670 (5th Cir. Aug. 12, 1977) that the Administrator's duty under that provision is discretionary based on its legislative history. The court, however, finds § 309(a)(3)'s legislative history inapplicable to the Administrator's § 309(a)(2) duties. Finally, the court rejects defendants' argument that plaintiff's action is barred because the Administrator has made no "finding" under § 309(a)(2) or "determination" under § 402(c)(3) of a failure of state enforcement that would trigger the Administrator's duties. Such as interpretation would allow the Administrator to frustrate citizen enforcement of the FWPCA by declining to issue a finding or determination regardless of the evidence of violations before him.

The full text of the opinion is available from ELR (4 pp., $7.00, ELR Order No. C-1339).

Counsel for Plaintiff
Mark Segretti Jr.

Counsel for Defendant
James Rattan, Ass't U.S. Attorney
200 U.S. Courthouse, 85 Marconi Blvd., Columbus OH 43215
(614) 469-5715

Duncan, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]