Scott v. City of Hammond, Ind.

Decision Date16 August 1984
Docket NumberNos. 81-2884,81-2885,s. 81-2884
Citation741 F.2d 992
Parties, 14 Envtl. L. Rep. 20,631 William J. SCOTT, on his own behalf and on behalf of all persons similarly situated, Plaintiff-Appellant, v. CITY OF HAMMOND, INDIANA, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph V. Karaganis & Gail Ltd., Chicago, Ill., for plaintiff-appellant.

Gail C. Ginsberg, Asst. U.S. Atty., Dan K. Webb U.S. Atty., Chicago, Ill., for defendants-appellees.

Before PELL and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge. *

PER CURIAM.

In this case, plaintiff-appellant William J. Scott brought suit against various defendants, complaining about the pollution of Lake Michigan which forced Chicago to close its beaches during the summer of 1980. These appeals concern the district court's dismissal of Scott's allegations against the United States Environmental Protection Agency (the "EPA"). 1 Because

we find that the district court erred when it dismissed certain of Scott's claims, we reverse the order of the district court, 530 F.Supp. 288 (D.Ill.1981) in part and remand the case for further proceedings.

I. Scott's Complaint

Section 505(a)(2) of the Clean Water Act (the "CWA"), 33 U.S.C. Sec. 1365(a)(2), provides for citizen suits against the Administrator of the EPA "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." 2 Scott invoked this section as part of his attempt to combat the discharge of "raw and inadequately treated human fecal material" into Lake Michigan from the Hammond, Indiana area along the shoreline. Complaint p 8. 3

Scott's complaint states two discrete grievances against the EPA. The first claim challenges the EPA's failure to prescribe a Total Maximum Daily Load ("TMDL") for discharge of pollutants into Lake Michigan. 4 The second claim alleges that the EPA and its administrator "are under a nondiscretionary duty to ensure that water quality standards adopted under the federal act 'protect the public health and welfare.' " Complaint p 27a (quoting CWA Sec. 303(c)(2), 33 U.S.C. Sec. 1313(c)(2)). The latter duty is being violated, it is alleged, because there are no water quality criteria for hazardous viruses and there is an inadequate standard for hazardous pathogenic bacteria. Both of these biological pollutants are contained in fecal matter which is discharged into Lake Michigan.

II. Failure to Disapprove Water Quality Standards

Scott alleges in his complaint that the EPA has approved state water quality standards which fail to protect the public health. The first alleged failing is that there is no prescribed standard for viruses even though viruses are a health hazard. The other alleged shortcoming of the existing regulations is that the method of computing allowable concentrations of bacteria permits extremely high one-day discharges of bacteria into Lake Michigan. Scott alleges that failure to correct this situation is a violation of CWA Sec. 303, 33 U.S.C. Sec. 1313 (1976).

To understand fully the trust of the allegations, we shall briefly review the statutory framework. CWA Sec. 303(c) places the primary reliance for developing water quality standards on the states. 5 The EPA reviews a water quality standard promulgated by a State to ensure that it "protect[s] the public health or welfare, enhance[s] Water quality standards are not themselves directly enforced by the EPA. Rather, permits prescribing conditions are issued for individual sources of pollutants. CWA Sec. 402, 33 U.S.C. Sec. 1342. If the conditions of a permit are violated, the EPA may issue a compliance order or bring a civil action against the violator. CWA Sec. 309, 33 U.S.C. Sec. 1319. 7 As noted, Scott's complaint charges that CWA Sec. 303, 33 U.S.C. Sec. 1313, imposes upon the defendants a nondiscretionary duty "to ensure that water quality standards adopted under the federal Act protect the public health and welfare." Complaint p 27(a). This duty has been violated, it is alleged, by the EPA's approval of an inadequate standard for bacteria and by the EPA's failure to require the adoption of a standard for viruses.

                the quality of water and serve[s] the purposes of [the] Act."    CWA Sec. 303(c)(2), 33 U.S.C. Sec. 1313(c)(2).  If the Administrator determines that the state-submitted standard meets the requirements of the Act, he or she approves it and it becomes the state standards.  If, however, the Administrator determines that the state standard is inconsistent with the Act, he or she must disapprove the standard and specify the changes necessary for compliance. 6   If a state does not make these specified changes, the Administrator is to issue a substitute standard.  CWA Sec. 303(c)(3), 33 U.S.C. Sec. 1313(c)(3)
                

We believe, however, that the content of water quality standards cannot ordinarily be challenged through a citizen's suit. An administrator's duty to approve or promulgate some water quality standards might be "nondiscretionary" within the meaning of Sec. 1365(a)(2), but the content of the standards is certainly at least somewhat discretionary with the EPA. 8 The only recognized avenue for challenge to the substance of EPA's actions taken with respect to state submissions is a suit for judicial review under the Administrative Procedure Act (the "APA"). United States Steel Corp. v. Train, 556 F.2d 822, 836-37 (7th Cir.1977). Apparently recognizing this defect in his original mode of attack, Scott has on appeal abandoned his "nondiscretionary duty" theory and argues instead that his complaint "seeks judicial review of EPA's response to Illinois' and Indiana's water quality standard submittals." Brief for Appellant at 23.

While acknowledging the liberal rules of notice pleading in the federal courts, the defendants argue that we should not construe Scott's complaint as one for APA review of the EPA's approval of the state-submitted standards. The allegations against the EPA, which are at issue, are contained in Count III. That count is entitled "failure to perform nondiscretionary acts under the FWPCA [the Federal Water Pollution Control Act]." The defendants point out that every one of the allegations in Count III refer to failures to perform nondiscretionary acts. The only suggestion of a claim under the APA is a reference to the "Court's power under the Administrative Procedure Act to compel agency action unlawfully withheld." Complaint p 30.

We agree with the defendants and with the district court that this complaint is insufficient to state a claim for judicial review of agency action. A complaint seeking judicial review would allege, for example, that some agency action was arbitrary, capricious or an abuse of discretion or that a factual finding by an agency was erroneous

                or not supported by substantial evidence.  See APA, 5 U.S.C. Sec. 706(2).  The complaint before us does not inform the court or the parties as to what agency action is to be reviewed.  We are not told whether a legal or factual error has been made or whether Scott seeks substantial evidence review or perhaps a trial de novo in the district court.  The complaint is drafted as a citizen's suit to require performance of a nondiscretionary duty;  such a suit cannot be employed to challenge the substance or content of an agency action.   See United States Steel Corp. v. Train, 556 F.2d at 836-37. 9
                
III. TMDL's

The complaint also alleges that the EPA has unlawfully failed to promulgate TMDL's for discharges of pollutants into Lake Michigan. This allegation is of the kind, we believe, for which the citizen's suit was designed.

A TMDL establishes a maximum daily discharge of pollutants into a waterway. A TMDL must be obeyed even if a monthly allowable average could be achieved in the face of some daily discharges above the TMDL. The process of promulgating TMDL's also involves federal-state cooperation. CWA Sec. 303(d)(1), 33 U.S.C. Sec. 1313(d)(1), requires each state to develop TMDL's for those waters within its boundaries where water quality standards will not be achieved by application of technology-based limitations. CWA Sec. 303(d) required Illinois and Indiana to submit TMDL's within 180 days of December 28, 1978. 10 See, CWA Sec. 304(a)(2)(D), 33 U.S.C. Sec. 1314(a)(2)(D). After receiving a state submission, the following statutory scheme becomes operative:

The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section.

CWA Sec. 303(d)(2), 33 U.S.C. Sec. 1313(d)(2). The district court agreed with the EPA that the EPA is not required to act unless and until the state submits a proposed TMDL.

We disagree with the conclusion of the district court. We believe that, if a state fails over a long period of time to submit proposed TMDL's, this prolonged failure may amount to the "constructive submission" by that state of no TMDL's. Our view of the case is quite simple, and tracks the statutory scheme set up by Congress. The EPA, in 1978, took the first step by identifying the pollutants for which TMDL's were "suitable." CWA Sec. 304(a)(2)(D), 33 U.S.C. Sec. 1314(a)(2)(D). The states were then required, within 180 days, to promulgate TMDL's for those waters None of the EPA's arguments against the...

To continue reading

Request your trial
61 cases
  • North West Environmental Advocates v. U.S. E.P.A., No. CV-01-510-HA.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • March 31, 2003
    ...that a state's failure to submit proposed TMDLs for an extended period of time constituted a constructive submission. Scott v. Hammond, 741 F.2d 992, 996 (7th Cir.1984). However, the decision was premised on the court's perception that EPA was handcuffed from acting until a state had made a......
  • Natural Resources Defense Council, Inc. v. Fox, 94 Civ. 8424(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 2, 2000
    ...promulgate its own TMDLs for the State. Adopting the doctrine introduced by the Seventh Circuit in Scott v. City of Hammond, Ind., 741 F.2d 992, 994 (7th Cir. 1984) [hereinafter, "Scott"], the Court in NRDC held that New York State's failure to submit proposed TMDLs to EPA in a timely manne......
  • City of Arcadia v. State Board, D043877.
    • United States
    • California Court of Appeals
    • January 26, 2006
    ...U.S.C. § 1251(a).) The Clean Water Act places "primary reliance for developing water quality standards on the states." (Scott v. Hammond (7th Cir.1984) 741 F.2d 992, 994.) It requires each state to develop such standards and review them at least once every three years for required modificat......
  • Natural Resources Defense Council, Inc. v. Fox, 94 CIV. 8424(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1998
    ...doctrine have held that such a duty arises only after some prolonged and unquantified passage of time. See, e.g., Scott v. City of Hammond, 741 F.2d 992, 996 (7th Cir.1984) (duty exists where "state fails over a long period of time to submit proposed TMDLs"); Sierra Club v. Hankinson, 939 F......
  • Request a trial to view additional results
11 books & journal articles
  • Conclusion: Should There Be a Constitutional Right to a Clean/Healthy Environment?
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...1022-24, 32 ELR 20043 (10th Cir. 2001) (discussing the citizen suit-created constructive submission doctrine); Scott v. City of Hammond, 741 F.2d 992, 996-98, 14 ELR 20631 (7th Cir. 1984) (same); San Francisco Baykeeper v. Browner, 147 F. Supp. 2d 991, 999-1002 (N.D. Cal. 2001) (same); Frie......
  • Addressing barriers to watershed protection.
    • United States
    • Environmental Law Vol. 25 No. 4, September 1995
    • September 22, 1995
    ...Cir. 1990) (discussing the water quality program of the CWA and the failure of EPA and the states to set TMDLs); Scott v. City of Hammond, 741 F.2d 992, 996-97 (7th Cir. 1984) (holding that EPA has a nondiscretionary duty to establish TMDLs when states refuse or do not act for a significant......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...495 Schmerber v. California, 384 U.S. 757 (1966) ...........................................................609 Scott v. City of Hammond, 741 F.2d 992, 14 ELR 20631 (7th Cir. 1984) .................284 S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 547 U.S. 370 (2006) ........................
  • A New Framework
    • United States
    • The Clean Water Act TMDL Program: Law, Policy, and Implementation
    • August 23, 2002
    ...II ]. 3. See Alaska Ctr. for Env’t v. Reilly, 762 F. Supp. 1422, 1426, 21 ELR 21305, 21306 (W.D. Wash. 1991); Scott v. City of Hammond, 741 F.2d 992, 14 ELR 20631 (7th Cir. 1984). 4. American Littoral Soc’y v. U.S. EPA, No. 96-330, http://www.epa.gov/owow/ tmdl/lawsuit1.html#n (D. Del. file......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT