Zemansky v. United States Environmental Protection Agency

No. A81-274 CIV (D. Alaska April 7, 1986)

The court holds that the Environmental Protection Agency's (EPA's) duty under Federal Water Pollution Control Act (FWPCA) § 309(a)(3) to initiate enforcement proceedings against placer miners in violation of national pollutant discharge elimination system permits is discretionary. The court first rules that a citizen suit under FWPCA § 505(a)(2) against EPA to compel enforcement is unavailable unless EPA has a nondiscretionary duty. The court then holds that it is appropriate to defer to EPA's interpretation the § 309 imposes only a discretionary duty. The legislative history of § 309 is ambiguous and, in addition, this is the majority view.

Counsel for Plaintiff
Saul Friedman
Hedland, Fleischer & Friedman
Suite 400, 1016 W. 6th Ave., Anchorage AK 99501
(907) 279-5528

Counsel for Defendants
Michael R. Spaan, U.S. Attorney
Federal Bldg. & U.S. Cthse., 701 C St., Room C-252, Mail Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Plaintiffs-Intervenors
Eric Smith
Trustees for Alaska
725 Christensen Dr., Suite 4, Anchorage AK 99501
(907) 276-4244

[16 ELR 20862]

von der Heydt, J.:

Memorandum and Order

THIS CAUSE comes before the court on the parties' cross-motions for summary judgment. In this suit plaintiffs and intervenors seek to require the Environmental Protection Agency to take enforcement action pursuant to 33 U.S.C. § 1319(a)(3) against any placer miners found to be in violation of their National Pollutant Discharge Elimination System (NPDES) permits.

The court's alleged jurisdiction over this controversy rests on 33 U.S.C. § 1365(a)(2), which authorizes citizen suits "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." Section 1365 does not confer jurisdiction to review discretionary acts.

Early in the history of this lawsuit the United States moved to dismiss on the ground that the enforcement procedures set forth in § 1319(a)(3) are discretionary rather than mandatory in nature. The court denied the motion, observing that it did "not believe a convincing argument . . . ha[d] been made" to support this interpretation of the statute. Further briefing by the parties in connection with the instant motions, together with the court's own research, have led the court to conclude that it should reconsider its prior interpretation of § 1319(a)(3).

The court joins the strong majority view that has developed in other circuits that § 1319(a)(3) does not impose mandatory duties on the Administrator. Sierra Club v. Train, 557 F.2d 485, 488-91 [7 ELR 20670] (5th Cir. 1977); see also Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 902 & n.11 [13 ELR 20942] (5th Cir. 1983); State Water Control Board v. Train, 559 F.2d 921, 927 & n.34 [7 ELR 20571] (4th Cir. 1977); National Wildlife Federation v. Ruckelshaus, 21 ERC 1776, 1780 [15 ELR 20845] (D.N.J. 1983); Caldwell v. Gurley Refining Co., 533 F. Supp. 252, 255-57 [12 ELR 20759] (E.D. Ark. 1982); O'Leary v. Moyer's Landfill, Inc., Civil No. 80-3849 [11 ELR 21005] (E.D. Pa. June 9, 1981), slip op. at 6-8 (Exhibit A to Docket No. 4); Lanza Construction Co. v. EPA, Civil No. 80-72895 (E.D. Mich. April 27, 1981), slip op. at 9 (Exhibit A to Docket No. 7); Goodyear v. LeCraw, 15 ERC 1189, 1191-92 [15 ELR 20846] (S.D. Ga. 1980) (interpreting parallel language of 33 U.S.C. § 1344; Montgomery Environmental Coalition v. Fri, Civil No. 1307-73 [4 ELR 20182] (D.D.C. Dec. 12, 1973), noted at Montgomery Environmental Coalition v. Washington Suburban Sanitary Commission, 607 F.2d 378, 380 n.5 (D.C. Cir. 1979), and Committee for Consideration of Jones Falls Sewage System v. Train, 387 F. Supp. 526, 529-30 n.3 (D.Md. 1975), and O'Leary, supra, slip op. at 7; cf. Heckler v. Chaney, 105 S. Ct. 1649, 1658 [15 ELR 20335] (1985) (finding discretionary meaning in similarly ambiguous statute); Nevada Power Co. v. Watt, 711 F.2d 913, 920-21 [15 ELR 20821] (10th Cir. 1983) (citing Sierra club v. Train with approval); Bayou des Familles Development Corp. v. Corps of Engineers, 541 F. Supp. 1025, 1040 [13 ELR 20055] (E.D. La. 1982) (interpreting 33 U.S.C. § 1344).

The court will not rehearse the reasoning of these decisions in detail. The statute and its legislative history are ambiguous, and in light of the traditional presumption in favor of administrative discretion in enforcement decisions it is appropriate to defer, in this instance, to the interpretation of the agency charged with administering the statute. See Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496-97 (9th Cir.), cert. denied, 439 U.S. 954 (1978); see also Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 (1973) (deference appropriate even where agency interpretation has not been consistent). It should be noted that the facts of the instant case bear out the observation of the Fifth Circuit that "[r]eason would dictate that the duties prescribed by § 1319(a)(3) be found discretionary." Sierra Club v. Train, 557 F.2d at 490. Because the actual bringing of a civil action is plainly discretionary under § 1319, see § 1319(b), to credit plaintiff's interpretation of the statute would have little practical effect on enforcement. It would, however, require EPA to appear to adopt an inflexible attitude toward placer miners, with perhaps unfortunate consequences for the working relationship that apparently has begun to develop between the Agency and the mining community.

Plaintiff also alleges that jurisdiction is proper under 28 U.S.C. §§ 1331 and 1361. These bases for jurisdiction have not been pressed in plaintiff's briefing and, in light of the court's holding regarding 33 U.S.C. § 1365(a)(2), they must fail. See e.g., cases cited in Defendants' Memorandum of Law in Support of Motion to Dismiss Complaint (Docket No. 4); Caldwell, supra, 533 F. Supp. at 257.

Accordingly, IT IS ORDERED:

(1) THAT plaintiff's motion for summary judgment is denied;

(2) THAT defendants' motion for summary judgment is granted;

(3) THAT plaintiff's and intervenors' complaints are dismissed;

(4) THAT the clerk shall prepare a final judgment restating items (2) and (3) above.