Save the Valley, Inc. v. U.S. E.P.A.

• Decision Date: 17 September 2002
• Docket Number: Cause No. IP 99-0058-C-B/G.
• Citation: 223 F.Supp.2d 997
• Parties: SAVE THE VALLEY, INC., Thomas Breitweiser and L. Jae Breitweiser, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, In Her Capacity as Administrator of the United States Environmental Protection Agency, and David A. Ullrich, In His Capacity as Administrator of the United States Environmental Protection Agency, Region 5, Defendants, Indiana Department of Environmental Management, Intervenor Defendant.
• Court: U.S. District Court — Southern District of Indiana

223 F.Supp.2d 997

SAVE THE VALLEY, INC., Thomas Breitweiser and L. Jae Breitweiser, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, In Her Capacity as Administrator of the United States Environmental Protection Agency, and David A. Ullrich, In His Capacity as Administrator of the United States Environmental Protection Agency, Region 5, Defendants Indiana Department of Environmental Management, Intervenor Defendant.

Cause No. IP 99-0058-C-B/G.

United States District Court, S.D. Indiana, Indianapolis Division.

September 17, 2002.

COPYRIGHT MATERIAL OMITTED

E. Scott Treadway, Tabbert Hahn Earnest & Weddle LLP, Sierr L Cutts, Indianapolis, IN, for Plaintiffs.

Sierr L. Cutts, Office of the Attorney General, Indianapolis, IN, Jon M. Lipshultz, Washington, DC, for Defendants.

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BARKER, District Judge.

Plaintiffs, Save the Valley, Inc. ("Save the Valley"), Thomas Breitweiser and L. Jae Breitweiser, sue the United States Environmental Protection Agency, et. al. ("the EPA") under the Clean Water Act ("the Act"), originally known as the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq., and the Federal Mandamus Statute, 28 U.S.C. § 1361. Pursuant to the citizen suit provision of the Act, 33 U.S.C. § 1365(a), Plaintiffs seek injunctive relief and a writ of mandamus. Plaintiffs contend that the EPA possesses actual knowledge that the State of Indiana has failed to adopt and enforce adequate laws and regulations concerning the discharge of pollutants from concentrated animal feeding operations ("CAFOs"), particularly industrial hog farms, and has failed to require those operations to acquire National Pollutant Discharge Elimination System ("NPDES") permits. Thus, they seek to compel the EPA: (1) to reassume enforcement of Indiana's EPA-authorized NPDES permitting program pursuant to 33 U.S.C. § 1319(a)(2), and (2) to initiate proceedings under 33 U.S.C. § 1342(c)(3) to withdraw approval of Indiana's NPDES program. The state agency responsible for the administration of Indiana's NPDES program, the Indiana Department of Environmental Management ("IDEM"), has intervened as a Defendant in this action.

The EPA, IDEM and Plaintiffs each filed motions for summary judgment on February 4, 2002. For the reasons stated below, the Court hereby GRANTS Plaintiffs' Motion for Summary Judgment with respect to their claim under 33 U.S.C. § 1342(c)(3), and DENIES the EPA's and IDEM's Motions for Summary Judgment on that issue. In addition, the Court GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiffs' remaining claims, and DENIES Plaintiffs' Motion on those issues.

FACTUAL BACKGROUND

Save the Valley, Inc. is a not-for-profit corporation dedicated to protecting the environment. Plaintiffs' Memorandum of Law in Support of Summary Judgment ("Pl.Mem.") at 3. Members of Save the Valley, Inc. live in Indiana near or adjacent to CAFOs. Id. Thomas Breitweiser and L. Jae Breitweiser are residents of Indiana who own and live on property adjacent to a proposed CAFO. Id. Plaintiffs had become concerned that, due to what they perceived to be inadequate state regulation of CAFOs, Indiana was becoming a popular state in which to open hog farms. See Complaint, ¶ 17. In a letter dated June 2, 1998, Plaintiffs notified EPA and IDEM officials of their belief that Indiana had failed to adequately regulate pollution from confined animal feeding operations. See Ex. A to Complaint at 2. On January 20, 1999, Plaintiffs filed their Complaint for Injunctive Relief and for Writ of Mandamus in this court.

SUBJECT MATTER JURISDICTION

Before we can reach the merits of this action, we must address some jurisdictional issues. Section 1369(b)(1) of the Clean Water Act vests a very limited original jurisdiction in the Circuit Courts of Appeal. Based on that section, the EPA contends that this court does not have subject matter jurisdiction over Plaintiffs' section 1342(c)(3) claim. Rather, according to the EPA, Plaintiffs' claim requires judicial review of an action by the Administrator regarding a state permit program, which would place the claim within the scope of section 1369(b)(1).

Section 1369(b)(1) states, in pertinent part, as follows:

Review of the Administrator's action ... (D) in making any determination as to a State permit program submitted under section 1342(b) of this title ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person.

33 U.S.C. § 1369(b)(1). The citizen suit provision of the Clean Water Act, on the other hand, allows citizens to bring suit to force the Administrator to perform nondiscretionary duties under the Act. 33 U.S.C. § 1365(a)(2). We think the difference between the two provisions is clear. While section 1369(b)(1) allows the Courts of Appeal to review actions actually taken by the Administrator, section 1365(a)(2) allows district courts to require the Administrator to act where she has failed to perform a mandatory duty. See Armco, Inc. v. U.S. Envtl. Protection Agency, 869 F.2d 975, 981-82 (6th Cir.1989). Section 1369(b)(1) vests original jurisdiction in the Courts of Appeal only to review the Administrator's action in certain very limited categories. We must disagree with the reasoning of American Canoe Ass'n v. U.S. Environmental Protection Agency, 30 F.Supp.2d 908, 924 (E.D.Va.1998), on which Defendants rely for the proposition that the section 1342(c)(3) claim belongs in the appellate court. As in this case, the plaintiffs in American Canoe brought a claim under the citizen suit provision of the Clean Water Act seeking to compel the Administrator to revoke a state's NPDES permitting program pursuant to section 1342(c)(3). That court recast the plaintiff's claim as a claim that the EPA improperly approved of the state's program, then concluded that this "review of ... [a] determination as to a state permit program" fell within the purview of section 1369(b)(1) rather than the citizen suit provision. Am. Canoe, 30 F.Supp.2d at 924. We do not agree that Plaintiffs' claim should be recast in such a manner. The failure to revoke a state's NPDES program when required by law is a failure to act, whereas the inappropriate approval of a program is an act.¹ Furthermore, the approval of a program may be appropriate based on the existence of a state's legal authority to administer that program, and yet years later it may become necessary to revoke a state's authority due to its failure to properly implement its authority. Plaintiffs section 1342(c)(3) claim is not within the ambit of the very limited jurisdiction contemplated by section 1369(b)(1).² Because it is claimed that the Administrator has not acted, Plaintiffs ask the Court to compel the EPA to perform duties outlined in section 1342(c)(3), which this court has previously determined to impose mandatory duties. Thus, pursuant to section 1365(a)(2), the case is properly before this court and would not have been properly filed with the Court of Appeals.³

Another possible hurdle to jurisdiction has already been cleared by Plaintiffs. The citizen suit provision requires that a party first give notice to the Administrator sixty days before a lawsuit is commenced. 33 U.S.C. § 1365(b)(2). The purpose of the notice period is to allow the EPA to avoid expensive and protracted judicial litigation by addressing citizen concerns at the administrative level. See South Carolina Wildlife Fed'n v. Alexander, 457 F.Supp. 118, 124 (D.S.C.1978). What constitutes proper notice is prescribed by EPA regulation. Id. In our previous Entry, we rejected the EPA's argument that Plaintiffs were required to exhaust administrative remedies under 40 C.F.R. § 123.64(b) before filing suit.⁴ Nonetheless, Plaintiffs did in fact meet the notice requirements found in that regulation as well as those imposed by 33 U.S.C. § 1365(b)(2). The regulation states that an interested party may petition the Administrator to withdraw approval of a state's program by setting out reasons from among those listed in 40 C.F.R. § 123.63. Under section 123.63, reasons for withdrawal deemed sufficient include the failure of the state to exercise control over activities to be regulated, including the failure to issue permits where required, and the failure of the state to inspect and monitor activities subject to regulation. 40 C.F.R. § 123.63(2)(i); 40 C.F.R. § 123.63(3)(iii). In their June 2, 1998 letter, Plaintiffs notified EPA and IDEM officials of their belief that Indiana had "failed to develop regulations controlling the permit process and point source discharge" from "confined animal feeding operations." Ex. A to Pl.'s Complaint at 2. The letter also explicitly stated that IDEM had failed to issue permits to CAFOs. Id. at 3. Plaintiffs did not file this lawsuit until January 20, 1999; EPA and IDEM thus had more than seven months in which to have made some appropriate response, when Plaintiffs were required to wait only sixty days following their notification to file this action. See 33 U.S.C. § 1365(b)(2). To require them to wait until the EPA deemed it appropriate to make a response under 40 C.F.R § 123.64 (whenever that might be) would clearly frustrate performance under the citizen suit provision.

For these reasons, we deem our jurisdiction over Plaintiffs' claims to be proper.

SUMMARY JUDGMENT ANALYSIS⁵

Summary Judgment Standard

Summary judgment is properly granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511-512 (7th Cir.1996). A genuine...