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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

INTENT TO SUE SERVED ON EPA FOR ITS' FAILURE TO COMPLETE RULE PROTECTING KENTUCKY'S HIGH QUALITY STREAMS  Posted: February 26, 2004

KENTUCKY WATERWAYS ALLIANCE * SIERRA CLUB CUMBERLAND CHAPTER * KENTUCKIANS FOR THE COMMONWEALTH * KENTUCKY RESOURCES COUNCIL, INC.* FLOYD’S FORK ENVIRONMENTAL ASSOCIATION

February 17, 2004

Mike Leavitt, Administrator

U.S. Environmental Protection Agency

Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 (202) 260-2090

Re: Notice of Intent To Sue Pursuant To Clean Water Act Section 505 and 5 U.S.C. Sections 701-706

Dear Administrator:

On behalf of the Kentucky Waterways Alliance, the Cumberland Chapter of the Sierra Club, Kentuckians for the Commonwealth, the Floyd’s Fork Environmental Association and the Kentucky Resources Council, Inc., I am writing to give notice that unless your agency finalizes the proposed antidegradation implementation procedure for the Commonwealth of Kentucky within a ninety (90) day period following receipt of this notice, a civil suit will be commenced pursuant to the Clean Water Act and the Administrative Procedure Act seeking to compel the exercise of this nondiscretionary, mandatory duty that has been unlawfully withheld and delayed.

Persons Serving Notice

The Kentucky Waterways Alliance is a nonprofit, membership organization recognized as tax exempt under Section 501 (c)(3) of the Internal Revenue Code, with over 200 members whose use and enjoyment of the water resources of the Commonwealth of Kentucky for recreational, aesthetic and other beneficial purposes is adversely affected by the failure of the state to promulgate criteria sufficient in scope to protect all high quality waters in the Commonwealth and the failure of EPA to implement an antidegradation policy for Kentucky in a timely manner. The Director of the Kentucky Waterways Alliance is Judith D. Petersen, and the address and telephone number of the organization is 854 Horton Lane, Munfordville, KY 42765; 270-524-1774.

The Cumberland Chapter of the Sierra Club is the state chapter of a national conservation organization with a long tradition of advocacy on behalf of the environment. The Cumberland Chapter has more then 3600 members whose use and enjoyment of the water resources of the Commonwealth of Kentucky for recreational, aesthetic and other beneficial purposes is adversely affected by the failure of the state to promulgate criteria sufficient in scope to protect all high quality waters in the Commonwealth and the failure of EPA to implement an antidegradation policy for Kentucky in a timely manner. The Chair of the Cumberland Chapter is Alice Howell, and the address and phone number of that organization is c/o Oscar Geralds, 259 West Short Street, Lexington, Kentucky 40507.

Kentuckians for the Commonwealth is a citizens social justice organization with 2500 members in 90 counties in the Commonwealth, whose use and enjoyment of the water resources of the Commonwealth of Kentucky for recreational, aesthetic and other beneficial purposes is adversely affected by the failure of the state to promulgate criteria sufficient in scope to protect all high quality waters in the Commonwealth and the failure of EPA to implement an antidegradation policy for Kentucky in a timely manner. The staff coordinator of Kentuckians for the Commonwealth is Burt Lauderdale, and the address and phone number of the organization is P.O. Box 1450, London, Kentucky 40743, (606) 878- 2161.

Floyd’s Fork Environmental Association is a nonprofit organization with 150 members in the Floyd’s Fork watershed, whose use and enjoyment of the water resources of the Commonwealth of Kentucky for recreational, aesthetic and other beneficial purposes is adversely affected by the failure of the state to promulgate criteria sufficient in scope to protect all high quality waters in the Commonwealth and the failure of EPA to implement an antidegradation policy for Kentucky in a timely manner. The Co-Chairs of FFEA are Teena Halbig and Sheron Lear, and the address is 6506 Echo Trail, Louisville, Kentucky 40299. The phone number of the organization is 502-267-6883.

The Kentucky Resources Council, Inc. is a non-profit environmental advocacy organization whose members use and enjoy the water resources of the state and whose use and enjoyment is adversely affected by the failure of EPA to timely complete the rulemaking on antidegradation implementation Procedure sufficient to protect Tier II waters from degradation. The Director of KRC is Tom FitzGerald, 314 Wilkinson Boulevard, P.O. Box 1070, Frankfort, Kentucky 40602, (502) 875-2428. Tom FitzGerald is also legal counsel representing each the organizations giving notice, and the address and telephone number are 314 Wilkinson Boulevard, P.O. Box 1070, Frankfort, Kentucky 40602, (502) 875-2428, for purposes of 40 CFR 135.3(c).

Introduction

The proper implementation of the antidegradation policy of the federal water quality standards is essential to the maintenance and enhancement of the high quality waters of the Commonwealth of Kentucky. Kentucky has consistently failed to adopt criteria and implementation procedures with respect to “Tier II” high quality waters, that are sufficiently broad, protective, and consistent with federal water quality standards.

Rather than adhering to the requirements of Section 303(c) of the Clean Water Act and the water quality standards regulations with respect to disapproval of state water quality standards and adoption of federal standards for the state, EPA continues to “enable” the Commonwealth in its chronic non-compliance with the antidegradation policy mandates by failing to complete the adoption and implementation of a federal water quality standard implementing Tier II antidegradation.

The Commonwealth of Kentucky has demonstrated that it is unwilling or incapable of developing and adopting regulations that accord Tier II waters needed protection. The current state rulemaking, like its precedecessors, falls short of providing sufficiently broad protection and meaningful and appropriate criteria for assuring protection of Tier II, high quality waters. As a matter of law and public policy, EPA must finalize the proposed regulation adopting a Tier II antidegradation policy for the Commonwealth of Kentucky.

Background

On August 7, 1997, EPA disapproved Section 1(3) of 401 KAR 5:030, the Commonwealth of Kentucky’s antidegradation policy for Tier II waters. This disapproval of the proposed revision to state water quality standards occurred because EPA determined that the selection criteria adopted by Kentucky for Tier II waters “were not sufficiently inclusive to meet the requirements of 40 CFR 131.12.” The letter requested that Kentucky “modify this subsection to include additional selection criteria under subsection 1(3)” which criteria must “address the inclusion of Tier II waters where water quality conditions exceed the levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” The letter further noted that either the “designational approach” or the “pollutant-by-pollutant” approach could be used. The August 7, 1997 letter concluded that disapproval was warranted because the state regulation “fail[ed] to address the implementation of the policy for the entire groups of waters and parameters which should receive consideration under Tier II of the policy.”

As required, the EPA disapproval letter contained recommendations for “modification of the subsection to include additional criteria for waters to be given Tier II protection.” August 30, 2000 Letter from Beverly Banister to Secretary James Bickford, at p. 4.

By letter dated October 9, 1997, sixty-two days after the disapproval, Kentucky Natural Resources and Environmental Protection Cabinet Secretary Bickford declined to adopt such revisions, instead committing that the changes requested would be considered as part of the next triennial review process. The letter noted that “the regulatory process does not allow us to promulgate revisions to regulations within ninety days[,]” and further noted that the triennial review process would begin in late spring or summer of 1998.

On December 8, 1999, the Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet, Division of Water, adopted revisions to the state water quality standards. Included in the 1999 revisions were changes to 401 Kentucky Administrative Regulation (KAR) 5:030, the regulation containing the implementation methodology for the antidegradation policy.

The 1999 regulation revision adopted by Kentucky failed to fully address the concerns identified by EPA in the 1997 disapproval. By letter dated August 30, 2000, over eight full months after the state submittal of the revisions on December 15, 1999 and fully five months after the deadline for action on the state revisions, Region IV notified the Commonwealth of Kentucky that the 1999 revision to 401 KAR 5:030 Section 1(3), which “revised the [Tier II] criteria to include those waters that support a macro invertebrate community rated excellent[,]” was insufficient:

[T]his addition does not adequately address EPA’s concern

that the exceptional category is not sufficiently inclusive of

waters afforded Tier II protection consideration. Therefore,

Section 1(3) remains disapproved.

August 30, 2001 Banister Letter at p. 4.

Section 1(3) of 401 KAR 5:030, as revised, remains disapproved

because the criteria for designating waters to be given Tier II

protection are still not sufficiently inclusive. In order to comply

with the federal requirements of 40 CFR 131.12, the Commonwealth should modify this subsection to include additional selection criteria as outlined in EPA’s August 1997, letter concerning this same section. The revision made by the Commonwealth during this triennial review, while not inconsistent with the changes identifies as being necessary in the August 1997, letter, does not fully address the basis for EPA’s disapproval. Because the revisions were insufficient to meet the requirements of the Clean Water Act and the applicable implementing regulations at 40 CFR Part 131, this section remains disapproved. As stated in EPA’s September 30, 1999 letter, EPA will restart its rule making to promulgate the provisions needed for compliance with federal requirements.

Id. at p.4.

As of this May 19, 2001, no action had been taken to propose a federal water quality standard containing Tier II criteria and implementation Procedure for Kentucky, despite a commitment made by EPA Region IV Regional Administrator Hankinson on September 1, 1998 that:

EPA intends to take the necessary actions for a federal

rulemaking while monitoring the Commonwealth’s progress

in timely completion of the triennial review. . . . EPA plans to

initiate the process to propose federal water quality standards as a safeguard should there be an unnecessary delay in the Com-

monwealth’s process or should it become evident that the proposed revisions do not fully address EPA’s concerns.

* * *

I am also enclosing a list of activities required to be completed

by EPA during the federal rulemaking process. These activities

require substantial dedication of EPA personnel and financial

resources at both the Regional and Headquarters level. However, I am committed to carry out these efforts if necessary

to ensure that Kentucky’s implementation of antidegradation is

consistent with the Clean Water Act and its implementing

regulations.

Letter from John Hankinson to Tom FitzGerald, September 1, 1998.

The above-mentioned organizations served notice pursuant to 40 CFR Part 135 of intent to commence civil action under the citizen suit provision of the Clean Water Act for the failure of the Administrator to perform a mandatory, nondiscretionary duty to promulgate a federal water quality standard implementing the antidegradation requirements for Kentucky.

In response, on November 14, 2002, EPA published a proposed rule establishing a federal antidegradation implementation methodology for the Commonwealth of Kentucky. 67 Fed. Reg. 68971-84 (November 14, 2002).

EPA has yet to finalize the proposed rule.

Statement of Claims Against Administrator

Section 505(a)(2) of the Clean Water Act, 33 U.S.C. 1365, provides that any citizen may commence a civil action on his own behalf “against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.”

Section 505(b) requires that prior to commencement of suit, sixty days notice must be given to the Administrator. This letter serves as that notice.

40 CFR Part 135 contains implementing regulations regarding prior notice of citizen suits, and with respect to Section 505(a)(2) actions, requires that “[s]ervice of notice of intent to file suit pursuant to section 505(a)(2) of the Act shall be accomplished by certified mail addressed to, or by personal service upon, the Administrator, Environmental Protection Agency, Washington, D.C. 20460[,]” and that a copy is also mailed to the Attorney General. 40 CFR 135.2(b).

40 CFR 135.3(b) specifies the contents of the notice of intent to commence suit where there is an alleged failure to act, and provides in full that:

Notice regarding an alleged failure of the Administrator to

perform any act or duty under the Act which is not discretionary

with the Administrator shall identify the provision of the

Act which requires such act or creates such duty, shall

describe with reasonable specificity the action taken or not

taken by the Administrator which is alleged to constitute a

failure to perform such act or duty, and shall state the full

name, address and telephone number of the person giving

the notice.

This letter serves as notice by the persons identified above, through the undersigned counsel, of alleged failures of the Administrator to perform acts or duties arising under the Clean Water act that are not discretionary with the Administrator, specifically:

That the Administrator failed to perform the nondiscretionary

duty arising under 33 U.S.C. 1313 of completing the proposed federal water quality standard for the Commonwealth of Kentucky implementing Tier II antidegradation within ninety

(90) days of promulgation.

Additionally, this letter serves as notice that the above-referenced organizations allege that the Administrator’s failure to act promptly to propose and promulgate a federal Tier II antidegradation regulation for Kentucky constitutes agency action unlawfully withheld and delayed, and is action that is arbitrary, capricious, and otherwise inconsistent with law, and thus is reviewable under 28 U.S.C. 1331 and 5 U.S.C. 701-706.

I. EPA Has Breached A Mandatory, Non-discretionary Duty To Act To Finalize The Proposed Federal Water Quality Standard For Tier II Water Antidegradation Within Ninety (90) Days.

Section 303(c) of the Clean Water Act, 33 U.S.C 1313, provides in relevant part that where the state submits a revised or new water quality standard,

(3) . . .If the Administrator determines that any such revised or

new standard is not consistent with the applicable requirements

of this chapter, he shall not later than the ninetieth day after the

date of submission of such standard notify the State and

specify the changes to meet such requirements. If such

changes are not adopted by the State within ninety days after

the date of notification, the Administrator shall promulgate

such standard pursuant to paragraph (4) of this subsection.

(4) The Administrator shall promptly prepare and publish

proposed regulations setting forth a revised or new water

quality standard for the navigable water involved –

(A) if a revised or new water quality standard submitted

by such State under paragraph (3) of this subsection for

such waters is determined by the Administrator not to be

consistent with the applicable requirements of this chapter[.]

Section 303(c) further specifies that the proposed federal water quality standard shall be finalized within ninety days after being proposed, wherein it states that:

The Administrator shall promulgate any revised or new

standard under this paragraph not later than ninety days

after he publishes such proposed standards unless prior to

such promulgation, such state has adopted a revised or new

water quality standard which the Administrator determines

to be in accordance with this chapter.

33 U.S.C. 1313(c)(4).

This obligation to complete the federal water quality standard rulemaking within ninety (90) days once the proposed rule has been promulgated, is clear, and has repeatedly been held to be a timeframe that is mandatory. See: Raymond Proffitt Foundation v US EPA, 930 F.Supp. 1088 (E.D. PA 1996), Kansas Natural Resource Council, Inc., v. Whitman, 255 F.Supp. 2d 1208 (D. Kansas 2003), Idaho Conservation League v. Browner, 968 F.Supp. 546 (W.D. Washington 1997). We are aware that Kentucky proposed on October 1, 2003 a new rulemaking that included an antidegradation implementation methodology. That rulemaking, both in timing and substance, is too little - too late. Under 33 U.S.C. 1313 it is only where the state has adopted (not merely proposed) a revised or new water quality standard that is in accordance with the Clean Water Act, that the Administrator may defer promulgation of the published federal water quality standard for the state. 33 U.S.C. 1313(c)(4). Kentucky failed to do so, and it is unlawful to defer finalization of a federal rule based on the current proposed rule, which has yet to receive review by the state legislative committees.

The comment period on the federal rulemaking has long since closed, and by letter dated July 14, 2003 the Kentucky Waterways Alliance requested that your agency promptly finalize the federal rulemaking. Additionally, by letter dated December 9, 2003, agency counsel and staff were requested by the undersigned counsel to finalize the rulemaking and to provide a date certain for “finalizing the federal rule and completing the obligation of EPA under 33 U.S.C. 1313 to finalize a federal water quality standard for Tier II antidegradation implementation for Kentucky.”

The Administrator’s failure to perform the nondiscretionary duty to finalize a federal water quality standard has, by any fair measure, been breached and is actionable under Section 505(a)(2) of the Clean Water Act.

2. The Failure To Promptly Finalize A Federal Water Quality

Standard for Tier II Antidegradation Is Reviewable Under

Federal Question Jurisdiction and the Administrative Procedure

Act as Final Agency Action Unreasonably Delayed Or Withheld

And Final Action That Is Arbitrary, Capricious and Otherwise

Inconsistent With Law

In addition to constituting a breach of a nondiscretionary duty to act promptly to finalize a federal water quality standard, the failure of the Administrator to act is reviewable under the Administrative Procedure Act. (“The correct mechanism for bringing a claim of unreasonable delay in promulgating regulations is the Administrative Procedure Act (‘APA’) which specifically provides that a court may ‘compel agency action unreasonably delayed.’ 5 U.S.C. 706(1)”. Oil, Chemical and Atomic Workers Union v. OSHA, 145 F.3d 120, 123 (3d Cir. 1998)). EPA’s “failure to carry out duties clearly mandated by the [Clean Water Act] has been arbitrary, capricious, and not in accordance with law, and thus a violation of the [Administrative Procedure Act].” Idaho Conservation League v. Browner, 968 F.Supp. 546, 549 (W.D. Wash. 1997). Under the rationale of Raymond Profitt Foundation v. US EPA, 930 F.Supp. 1088, 1102-1105 (E.D. Pa. 1996), the delay is unreasonable.

That harm is ongoing from the unreasonable delay in finalizing a federal Tier II water quality standard, cannot be seriously disputed. In response to a July 29, 1998 request that EPA review each water discharge permit issued by the Commonwealth of Kentucky until the state adoption of proper Tier II standards, “in order to assure that the proposed discharge will not adversely affect a water for which Tier II protection should be accorded because of quality for any parameter above the baseline for the designated use(s),” Regional Administrator Hankinson conceded on September 1, 1998 that:

[T]he federal antidegradation policy would not apply in

this case until our federal rulemaking specific for waters of

Kentucky is completed or the state changes its regulations.

Therefore, only Kentucky’s requirements at 401 KAR 5:030

apply to this discharge, and similar new or expanded dis-

charges, at this time.

Conclusion

For the reasons stated herein, the above-named organizations, by and through counsel, respectfully demand that your agency finalize a federal Tier II antidegradation water quality standard for Kentucky within the next ninety (90) days, or civil action will be commenced seeking injunctive and other appropriate relief for the above-enumerated and ongoing failures of the agency under the APA and Clean Water Act.

Sincerely,

Tom FitzGerald, Esq.

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

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