ELR Citation: ELR 20565
No(s). 90-1072 (D.C. Cir. Feb 15, 1991)

The court upholds an Environmental Protection Agency (EPA) regulation under the Safe Drinking Water Act (SDWA) that allows EPA to temporarily stay the process for withdrawing state enforcement primacy when a state fails to meet a deadline for conforming with new or revised national standards for reasons beyond its control. The regulation provides that EPA will enforce the new or revised standards while the stay is in effect and the state will continue to enforce the standards with which its law conforms. The court holds that the SDWA does not prohibit the creation of periods of time during which enforcement primacy is split between the state and EPA. The phase between initiation and completion of withdrawal proceedings will necessarily involve split primacy unless withdrawal proceedings could occur instantaneously on a state's failure to timely adopt the new regulations. SDWA §1413 does not show that Congress intended that a state's primacy over the standards with which its law conforms must cease the minute it fails to meet the deadline for adoption of a new standard. Petitioner's argument that the SDWA contains indirect limits on the permissible duration of split primacy is contrary to Congress' intent that the Act be primarily a state and locally run program. The court next holds that the regulation is reasonable. The regulation does not conflict with EPA's contemporaneous interpretation of the SDWA. EPA has only rejected split primacy involving deliberate splits of unlimited duration rather than the interim splits at issue here. Further, the regulation is a rational response to the realities of drinking water enforcement and falls within EPA's enforcement discretion. EPA's failure to discuss the mechanics of the enforcement process under split primacy was reasonable, given that there is no reason to believe that petitioner's approach would require fewer EPA resources than EPA's approach.

Counsel for Petitioner:
Erik D. Olson
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6887

Counsel for Respondent
Peter W. Colby
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MIKVA, Chief Judge, WILLIAMS and THOMAS, Circuit Judges.