Scott v. City of Hammond, Ind., 80 C 4563.
| Decision Date | 07 October 1981 |
| Docket Number | No. 80 C 4563.,80 C 4563. |
| Parties | William J. SCOTT, on his own behalf and on behalf of all persons similarly situated, Plaintiffs, v. CITY OF HAMMOND, INDIANA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Joseph V. Karaganis, Sanford R. Gail, Russell R. Eggert, A. Bruce White, O'Conor, Karaganis & Gail, Chicago, Ill., for plaintiffs.
Dorothy Attermeyer, Environmental Protection Agency, Chicago, Ill. and William L. Want, U. S. Dept. of Justice, Washington, D. C., and Gail C. Ginsberg, Asst. U. S. Atty., Chicago, Ill., for defendants E.P.A. and Douglas M. Costle.
Illinois citizen William J. Scott ("Scott") sues the City of Hammond, Indiana ("Hammond"), the Hammond-Munster Sanitary District ("District") and the United States Environmental Protection Agency and its Administrator (collectively "EPA") because of District's alleged discharge of raw human fecal material into Lake Michigan. Scott seeks relief against Hammond and District under theories of Illinois and federal common law of nuisance, alleging that the discharges caused 1980 closings of several Chicago beaches.1 Scott also claims EPA has failed to perform certain allegedly non-discretionary duties imposed by Section 303 of the Federal Water Pollution Control Act Amendments of 1972 (the "Act"), 33 U.S.C. § 1313 ("Section 303"), and seeks an injunction requiring EPA to comply with those Section 303 requirements.
EPA has moved to dismiss the Complaint as it pertains to EPA. For the reasons stated in this memorandum opinion and order EPA's motion is granted.
Section 303 is one component of the Act's comprehensive scheme to regulate water pollution. It requires states to establish water quality standards ("standards") applicable to the discharge of pollutants into interstate and intrastate waters. In conjunction with that requirement Act § 304 requires EPA to promulgate non-binding water quality criteria ("criteria") that designate the maximum concentration of various pollutants for a waterway that would still "protect" its designated uses.
States may and usually do use the criteria in formulating their standards. Completed standards are submitted to EPA and if approved become "the water quality standard for the applicable waters of that State." If EPA instead determines the submitted standard fails to meet the requirements of the Act it is authorized to promulgate a different standard for the state.
Section 303(d) also requires states to develop total maximum daily loads ("TMDLs") for all dischargers into waterways for which certain requirements of Act §§ 301(b)(1)(A) and (B) are not satisfied. Lake Michigan is such a waterway. TMDLs are in turn allocated among the various dischargers to set specific limits on the amount of pollutants each entity may discharge. Unlike the formulation of standards, for which EPA provides advisory criteria under Section 304, initial promulgation of TMDLs is entirely the responsibility of the states. However proposed TMDLs are subject to EPA approval, and if tendered TMDLs are deficient EPA is required to establish TMDLs within 30 days.
Scott alleges that Hammond and District have illegally discharged raw human fecal material into Lake Michigan. In 1977 both Indiana and Illinois submitted and obtained EPA approval of proposed standards for the discharge of fecal coliform into Lake Michigan. However neither state has submitted any TMDLs for approval even though Section 303(d)(2) required such submissions by December 28, 1978.
Scott claims that under the Act EPA is required to adopt:
Claiming jurisdiction is proper under 28 U.S.C. §§ 1331, 1332 and 1361 and 33 U.S.C. § 1365 (), he urges the Act imposes a non-discretionary duty on EPA to promulgate the requested criteria and TMDLs because (1) Section 303(c)(2) mandates that state standards "shall be such as to protect the public health" and (2) present standards violate that mandate because they inadequately regulate the discharge of bacteria and viruses.
Scott's responsive memorandum levels a barrage of charges as to EPA's non-promulgation of such criteria. Those charges however essentially reduce to one: Standards adopted in 1977 by Indiana and Illinois applicable to fecal material discharges into Lake Michigan are inadequate because they do not specifically regulate two alleged components of fecal pollution.
Our Court of Appeals' decision in United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977) defines the avenues for relief open to Scott. If his Complaint is read as contesting the substance of the standards he may bring only an action (1) against the States in state court or (2) "a federal action against the state officers responsible for their the standards' enforcement alleging deprivation of a federal constitutional right." 556 F.2d at 836-37. Obviously Scott has selected neither of those courses of action here. Under United States Steel his only other available course would have been to seek Administrative Procedure Act review of EPA's approval of the standards. 556 F.2d at 837. But as was the case in United States Steel, Scott's Complaint does not seek that relief and cannot be sustained on that ground either.
In short United States Steel holds that where a state and EPA have addressed a pollution problem by respectively issuing and approving standards, challenges to those standards must be directed at the state, id:
As we have seen, the standards are state, not federal regulations.... While these state regulations, like any other state regulation or statute, can be challenged on federal constitutional grounds against the appropriate state officials ... this was not such an action.
Scott's efforts...
To continue reading
Request your trial
-
Natural Resources Defense Council, Inc. v. U.S. E.P.A.
...water quality-based permit limitations applicable to each plant discharging its effluent into that body of water. Scott v. City of Hammond, 530 F.Supp. 288, 289 (N.D.Ill.1981).105 564 F.2d 1253 (9th Cir.1977).106 Id. at 1266.107 Id.108 See id.109 Id. at 1272.110 Id. at 1272-73 (footnote omi......
-
Pronsolino v. Marcus
...EPA's duty to act. Doing nothing was, the court held, tantamount to approval of a "constructive submission." Scott v. City of Hammond, 530 F.Supp. 288 (N.D.Ill.1981), aff'd in part, rev'd in part, 741 F.2d 992, 996 (7th Cir.1984). Another suit in Oregon led to a consent decree in 1987 with ......
-
Scott v. City of Hammond, Ind.
...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 I. Scott's Complaint Section 505(a)(2) of the Clean Water Act (the "CWA"), 33 U.S.C. Sec. 1365(......
-
The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay
...and other citizen and legal assistance groups). 19. he irst TMDL citizen suit cases came out of Illinois: Scott v. City of Ham- mond , 530 F. Supp. 288 (N.D. Ill. 1981), af’d in part, rev’d in part by 741 F.2d 992, 14 ELR 20631 (7th Cir. 1984) (“[T]he CWA should be liberally construed to ac......
-
The Implementation of §303
...Muskie. 28. Total Maximum Daily Loads, supra note 27, at 60666. 29. Id . 30. Id . 31. Id . at 60662. 32. Scott v. City of Hammond, 530 F. Supp. 288 (N.D. Ill. 1981), aff’d in part, rev’d in part , 741 F.2d 992, 14 ELR 20631 (7th Cir. 1984). EPA argued that Congress did not intend that EPA e......