ELR Citation: ELR 20732
No(s). 94 Civ. 8424 (PKL) (S.D.N.Y. Dec 11, 1995)

The court holds that 28 U.S.C. §2401's six-year statute of limitations does not bar a Federal Water Pollution Control Act §505(a)(2) citizen suit to compel the U.S. Environmental Protection Agency (EPA) to establish total maximum daily loads (TMDLs) for water quality limited segments in New York State. The court first holds that the mere objective failure of the state to submit TMDLs is sufficient to trigger EPA's non-discretionary duties to establish TMDLs for the state. To find constructive nonsubmission, it is not necessary to find a subjective intent on the state's part not to submit TMDLs; to do so would undermine Congress' intent. The court holds, however, that triable issues of fact as to whether New York created and submitted TMDLs, and whether those that New York may have created are adequate to prevent triggering EPA's duties preclude summary judgment. The court next holds that a §505(a)(2) citizen suit to enforce EPA's failure to perform a non-discretionary duty is not subject to any statute of limitations. In the alternative, the court holds that the state's continued failure to establish TMDLs creates a continuing, nondiscretionary duty of EPA to disapprove the state's actions and to promulgate TMDLs. For statute-of-limitations purposes, EPA's failure is repeated and a new cause of action accrues whenever EPA's duties are triggered by nonsubmission or inadequate submission. The court next holds that the action is not subject to laches, because it is a suit to protect the public interest. The court upholds EPA's approval of the state's 1992 revisions of its water quality standards. The court holds reasonable and entitled to deference EPA's interpretation of a regulation requiring its review of officially adopted revisions of water quality standards to include only review of the revised parts of a state's system of water quality standards. Although EPA has not reviewed New York's antidegradation policy since 1985, EPA's approval of the 1992 revision, which did not contain an antidegradation policy, was not arbitrary and capricious. The court also holds that 28 U.S.C. §2401's six-year statute of limitations bars review of EPA's 1985 approval of New York's antidegradation policy.

Counsel for Plaintiffs
Mark A. Izeman, Eric A. Goldstein
Natural Resources Defense Council
40 W. 20th St., New York NY 10111
(212) 727-2700

Counsel for Defendants
Mary Jo White, U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008