ELR Citation: ELR 20440
No(s). 90-1072 (D.C. Cir. Dec 11, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) lacks authority under the Safe Drinking Water Act (SDWA) to refuse to initiate primacy withdrawal proceedings against a state once it determines that the state no longer is in compliance with the Act. The court holds that an EPA determination that a state no longer meets the primacy requirements terminates the state entitlement to primacy by statutory fiat and triggers the agency process authorized by SDWA §300g-2(b)(1) for initiating withdrawal. To hold otherwise would strip the statutory term "determination" of all meaning. The court notes that EPA's insertion, in a 1991 regulation on state primacy, of additional post-determination discretion to choose not to notify an offending state, does not represent the Agency's long-standing view on primacy withdrawal, since the plain language of a 1976 EPA regulation on state primacy madeno such provision. The court holds that the presumption of unreviewability of agency nonenforcement decisions is inapplicable, or at least rebutted, because the SDWA withdraws discretion from the Agency and provides guidelines for the exercise of enforcement power at the point a determination of noncompliance has been made.

[A prior decision in this litigation is published at 21 ELR 20565.]

Counsel for Petitioner
Erik D. Olson
Natural Resources Defense Council
1350 New York Ave. NW, Washington DC 20005
(202) 624-9394

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

Before MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.