ELR Citation: ELR 20108
No(s). 89-2980 (D.D.C. Apr 23, 1991)

The court holds that the Environmental Protection Agency (EPA) violated Federal Water Pollution Control Act (FWPCA) §304(m) by failing to issue effluent guidelines for industrial toxic polluters by the statutory deadline. The court first holds that FWPCA §304(m)(1)(C) clearly requires EPA to promulgate new effluent limitations by the specified date; and EPA, in failing to meet the deadline, violated the statutory mandate. The court rejects EPA's argument that the February 1991 deadline was merely a target date. Also, with reference to the whole of FWPCA §304(b), the court interprets §304(m)(1)(A) and (B) as congressional commands to set a schedule for annual revision and review of promulgated effluent guidelines and to identify all industries currently discharging toxic and nonconventional pollutants in nontrivial amounts not currently subject to effluent limitation guidelines revision. On the contrary, the court holds that RCRA §3018(b) gives EPA discretion to revise and promulgate regulations necessary for controlling hazardous pollutants mixed with sewage. The court therefore lacks the jurisdiction under RCRA's bifurcated jurisdictional scheme to hear the RCRA citizen suit challenging EPA's failure to issue regulations.

Counsel for Plaintiffs
Robert W. Adler
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Washington DC 20005
(202) 783-7800

Katherine Meyer, Eric Glitzenstein
Harmon, Curran & Tousley
2001 S St. NW, Ste. 430, Washington DC 20009
(202) 328-3500