ELR Citation: ELR 21332
No(s). s. 3:91CV00058, 3:91CV00165 (E.D. Va. Jul 17, 1991)

The court holds that the Environmental Protection Agency (EPA) does not have a non-discretionary duty under Federal Water Pollution Control Act (FWPCA) §304(a)(1) to issue numerical standards for its dioxin water quality criteria or to revise the criteria based on new scientific evidence. The court first rejects plaintiffs' argument that EPA's 1984 criteria were incomplete because they did not contain numerical criteria for all identifiable effects, not just human cancer effects. FWPCA §304(a)(1) does not require EPA to develop numerical criteria for toxic pollutants. FWPCA §303(c)(2)(B) explicitly contemplates that EPA may have adopted non-numerical criteria, and allows states to adopt criteria based on other methods. Plaintiffs may not rely on the provisions of a 1979 consent decree because FWPCA §505 permits citizen suits only for failure to meet nondiscretionary duties under the Act and the decree does not establish that the FWPCA mandates numerical criteria. If plaintiffs are merely seeking to enforce an alleged violation of the decree, they are in the wrong forum. The court next holds that the plain language of FWPCA §304(a)(1) does not impose a nondiscretionary duty on EPA to include numerical criteria for identifiable effects or to revise the criteria whenever science demands it. Thus, plaintiffs' claim that EPA's publication of the original dioxin criteria was incomplete because it did not contain complete numerical criteria must fail. The court also holds that the requirement that EPA revise the criteria from time to time to reflect the latest scientific knowledge is discretionary. A non-discretionary duty cannot be inferred from the structure of the FWPCA's statutory scheme or its legislative history.

The court dismisses the portion of plaintiff's complaint concerning EPA's duties under §304(a)(1), but grants plaintiffs' motion to amend its complaint to allege that EPA's failure to revise the dioxin criteria since 1984 amounts to agency action unlawfully withheld or unreasonably delayed in violation of the Administrative Procedure Act. The court asks for further briefing on the issue of whether the six-year statute of limitations bars plaintiffs' claim that the initial criteria were arbitrary and capricious. Finally, the court notes that plaintiffs' claim of unreasonable delay in revising the dioxin standards may eventually become moot and that judicial review would be more efficient if EPA agreed to an expedited schedule for considering revisions to the dioxin criteria.

[The complaint and a memorandum on the statute of limitations issues are digested at ELR PEND. LIT. 66127 and 66158.]

Counsel for Plaintiffs
David Bailey
1108 E. Main St., Ste. 800, Richmond VA 23219
(804) 780-1297

Counsel for Defendants
Bob Jaspen
U.S. Attorney's Office
Main St. Ctr., 18th Fl., 600 E. Main, Richmond VA 23219
(804) 771-2186