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

EPA sued for failure to finalize rule to protect Kentucky's waters from degradation  Posted: September 24, 2004

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CASE NUMBER ________________

KENTUCKY WATERWAYS ALLIANCE,

SIERRA CLUB CUMBERLAND CHAPTER,

KENTUCKIANS FOR THE COMMONWEALTH and

FLOYDS FORK ENVIRONMENTAL ASSOCIATION PLAINTIFFS

V. COMPLAINT

MIKE LEAVITT in his official capacity as ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Ariel Rios Building

1200 Pennsylvania Avenue Room 3000 (1101-A)

Washington, District of Columbia 20460 DEFENDANT

* * * * *

INTRODUCTION

This action arises under the "citizen suit" provision of the Clean Water Act, 33 U.S.C. 1365(a)(2), seeking a determination by this Court that the Administrator of the United States Environmental Protection Agency (EPA) has failed to perform a mandatory duty under the Clean Water Act. Specifically, Plaintiffs seek a declaration of rights that the Administrator has breached the mandatory duty under 33 U.S.C. 1313(c)(4) to finalize a federal water quality standard that is consistent with the Clean Water Act, in order to protect Kentucky waters from degradation. Plaintiffs further seek injunctive relief directing the Administrator to comply with 33 U.S.C. 1313 by finalizing such a standard.

PARTIES

1. The Kentucky Waterways Alliance (KWA) 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. The KWA is adversely affected by failure of the EPA Administrator to implement an antidegradation policy for Kentucky in a timely manner after determining that the Commonwealth of Kentucky had repeatedly failed to promulgate criteria sufficient in scope to protect water quality in the Commonwealth. 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.

2. Judith Petersen is both a member of and Director of the Kentucky Waterways Alliance. Ms. Petersen uses and enjoys rivers, streams and lakes in the Commonwealth where the water quality is threatened or has been impaired by the failure of the defendant to discharge his mandatory duty to implement the antidegradation provisions of the Clean Water Act. Ms. Petersen, as a citizen and user of waters of the Commonwealth, has recreational, aesthetic and economic interests that have been and will be adversely affected by the failure of the Administrator to enforce the antidegradation provisions of the Clean Water Act.

3. 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 than 4,500 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 EPA Administrator to implement an antidegradation policy for Kentucky in a timely manner after determining that the state had repeatedly failed to promulgate criteria sufficient in scope to protect water quality in the Commonwealth. The Chair of the Cumberland Chapter is Lane Boldman, and the address and phone number of that organization is c/o Oscar Geralds, 259 West Short Street, Lexington, Kentucky 40507 (859)-255-7946.

4. Joel Evans and Alice Howell are members of the Sierra Club Cumberland Chapter. Mr. Evans resides in Midway, Kentucky, and Ms. Howell is a resident of Lexington, Kentucky. Mr. Evans and Ms. Howell both use and enjoy the rivers, streams and lakes in the Commonwealth where the water quality is threatened or has been impaired by the failure of the Administrator to discharge his mandatory duty to implement the antidegradation provisions of the Clean Water Act. Both Mr. Evans and Ms. Howell are Sierra Club members and volunteers in the Kentucky River Watershed Watch. As citizens and users of the waters of the Commonwealth, Mr. Evans and Ms. Howell have recreational, aesthetic and economic interests that have been and will be impaired by the failure of the Administrator to enforce the antidegradation provisions of the Clean Water Act.

5. 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 EPA Administrator to implement an antidegradation policy for Kentucky in a timely manner after determining that the state had repeatedly failed to promulgate criteria sufficient in scope to protect water quality in the Commonwealth. 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.

6. Doug Doerrfeld is a member of Kentuckians for the Commonwealth and a resident of Rowan County, Kentucky. Mr. Doerrfeld uses and enjoys rivers, streams and lakes in the Commonwealth where water quality is threatened or has been impaired by the failure of the Administrator to discharge his mandatory duty to implement the antidegradation provisions of the Clean Water Act. Mr. Doerrfeld, as a citizen and user of the waters of the Commonwealth, has recreational, aesthetic and economic interests that have been and will be impaired by the failure of the Administrator to enforce the antidegradation provisions of the Clean Water Act.

7. The Floyds Fork Environmental Association (FFEA) is a nonprofit organization with 150 members in the Floyds 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 EPA Administrator to implement an antidegradation policy for Kentucky in a timely manner after determining that the state had repeatedly failed to promulgate criteria sufficient in scope to protect all water quality in the Commonwealth. 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.

8. Teena Halbig is a member of and Director of the Floyds Fork Environmental Association, and a resident of Metro Louisville, Kentucky. Ms. Halbig uses and enjoys rivers, streams and lakes in the Commonwealth where the water quality is threatened or has been impaired by the failure of the Administrator to discharge his mandatory duty to implement the antidegradation provisions of the Clean Water Act. Ms. Halbig, as a citizen and user of the waters of the Commonwealth, has recreational, aesthetic and economic interests that have been and will be impaired by the failure of the Administrator to enforce the antidegradation provisions of the Clean Water Act.

9. Each of the Plaintiff organizations and their identified members are persons with interests which are adversely affected by the failures of the EPA Administrator, and those interests are within the zone of interests sought to be protected by the Clean Water Act. The injuries complained of herein are a direct result of the failure of the EPA Administrator to discharge his mandatory duties under 33 U.S.C. 1313, and the relief sought in this Complaint will redress those injuries.

10. Mike Leavitt is sued in his official capacity as Administrator of the United States Environmental Protection Agency, which is that agency of the federal government to which administration and enforcement of the Clean Water Act ("the Act") has been delegated by Congress. Administrator Leavitt is the proper named defendant under 33 U.S.C. 1365(a)(2).

JURISDICTION AND VENUE

11. This Court has jurisdiction over this civil action pursuant to 33 U.S.C. 1365(a)(2), which provides in relevant part that:

(A) except as provided in subsection (b) of this section and section 1319(g)(6)

of this title, any citizen may commence a civil action on his own behalf-

* * *

(2) 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.

The district courts shall have jurisdiction, without regard to the amount in

controversy or the citizenship of the parties, to . . . order the Administrator

to perform such act or duty[.]

12. Pursuant to 33 U.S.C. 1365(b), no action may be commenced pursuant to 33 U.S.C. 1365(a)(2) "prior to sixty days after the plaintiff has given notice of such action to the Administrator[.]” On February 17, 2004, notice was served in accordance with EPA regulations and as required by 33 U.S.C. 1365(b)(2). A copy of that Notice of Intent To Commence Civil Action is annexed to this Complaint. Previously, a notice was sent on May 19, 2001.

13. Venue is appropriate in this District under 28 U.S.C. 1391(e) and 33 U.S.C. 1365(c).

BACKGROUND

14. Paragraphs 1-13 are incorporated herein by reference as if fully set forth below.

15. The Clean Water Act is a comprehensive water quality statute designed “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a). The Act establishes a goal of attaining “water quality which provides for the protection and propagation of fish, shellfish, and wildlife. 33 U.S.C. 1251(a)(2).

16. States are obligated by 33 U.S.C. 1313 to develop and implement standards for protection of water quality conforming to the minimum standards established by the EPA Administrator. The Act and federal regulations require that the water quality standards include, among other elements, an “antidegradation policy.”

17. EPA regulations divide the antidegradation policy into three “tiers:” Tier I sets out the minimum standard, under which states must maintain and protect existing water uses and the level of water quality necessary to protect those uses. 40 C.F.R. 131.12(a)(1). Tier III applies to certain waterways that constitute outstanding resources and requires states to maintain and protect the water quality in such waters. 40 C.F.R. 131.12(a)(3). Tier II requires states to maintain and protect levels of water quality that exceed that “necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” States may only allow such high levels of water quality to be lowered if the state finds that lowering the water quality is “necessary to accommodate important economic or social development in the area.” 40 C.F.R. 131.12(a)(2). Every state is obligated to adopt water quality standards that incorporate these requirements. 40 C.F.R. 131.4(a).

18. Where a state water quality standard has been disapproved and the state fails to adopt changes in the disapproved standard as specified by the EPA Regional Administrator, 33 U.S.C. 1313(c) requires the Administrator to “promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved.” 33 U.S.C. 1313(c)(4). Once published, the proposed federal water quality standard for that state must be finalized within ninety days thereafter unless the state has adopted a revised or new water quality standard that complies with the Act.

19. The federal water quality standard at issue in this case would implement a Tier II “antidegradation” standard for water bodies located in the Commonwealth of Kentucky. The antidegradation requirements of the federal water quality standards are essential to the maintenance and enhancement of the water quality of the Commonwealth of Kentucky. Kentucky has consistently failed to adopt Tier II criteria and implementation procedures that are sufficiently broad, protective, and consistent with federal water quality standards.

20. 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 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.” The EPA disapproval letter notified the State of changes needed to meet the requirements of the Clean Water Act. August 7, 1997 Letter from John H. Hankinson, Jr. to Secretary James Bickford, at p. 5-10.

21. 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.

22. 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 address fully the concerns identified by EPA in the 1997 disapproval.

23. 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, EPA 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.

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.

24. As of 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 Commonwealth’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, Jr. to Tom FitzGerald, September 1, 1998.

25. 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 on May 19, 2001 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.

26. 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). The November 14, 2002 proposed rule did not constitute a proper standard proposal and did not comply with the requirements for an antidegradation standard under Clean Water Act. In comments, plaintiffs advised EPA that its proposal was inadequate, and requested changes in order to make the standard conform to the Clean Water Act. See e.g. January 23, 2003 comments of Kentucky Waterways Alliance.

27. EPA has yet to finalize an antidegradation standard for the Commonwealth of Kentucky. The Commonwealth of Kentucky has not adopted a revised or new antidegradation standard. The Kentucky Environmental and Public Protection Cabinet, Division of Water (DOW) has proposed a revised antidegradation standard that is undergoing legislative review. That standard cannot be found by the Administrator to meet the requirements of the Clean Water Act for numerous reasons including that it improperly allows permitting of many forms of water quality degradation that may not be permitted under a proper standard. The proposal also improperly fails to protect many waters that would be protected by a standard that complied with the law. In any event, the belated effort to promulgate another deficient state antidegradation standard does not relieve the Administrator of his mandatory duty to establish a standard for Kentucky that complies with the Act and which will protect Kentucky’s Tier II waters until Kentucky submits and receives EPA approval for a lawful state rule.

28. 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.”

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

30. 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.

31. Notice was provided as required by the statute and EPA regulations. A copy of that notice is attached to this Complaint.

COUNT 1

VIOLATION OF CLEAN WATER ACT:

FAILURE TO FINALIZE FEDERAL WATER QUALITY STANDARDS

FOR TIER II WATERS

32. Paragraphs 1-31 are incorporated herein by reference as if fully set forth below.

33. 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[.]

34. Section 303(c) further specifies that the proposed federal water quality standard shall be finalized by the Administrator within ninety days after being proposed:

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).

35. 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. 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).

36. The Commonwealth of Kentucky has not adopted a revised or new water quality standard that the Administrator has determined to be in accordance with this chapter. 37. The Administrator has breached a mandatory, nondiscretionary duty to finalize a federal water quality standard, and that failure is actionable under Section 505(a)(2) of the Clean Water Act, 33 U.S.C. 1365(a)(2).

COUNT II

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT:

ARBITRARY AND CAPRICIOUS ACTION BY THE ADMINISTRATOR

AND UNREASONABLE WITHHOLDING OF AGENCY ACTION

38. Paragraphs 1-37 are incorporated herein by reference as if fully set forth below.

39. In addition to constituting a breach of a nondiscretionary duty to act within the time provided by law to finalize a federal water quality standard that complies with law, the failure of the Administrator to act is reviewable under the Administrative Procedure Act, 5 U.S.C. 701 et seq.

40. Section 706 of the Administrative Procedure Act provides a right of review of final agency action, and 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)).

41. The Administrator’s “failure to carry out duties clearly mandated by the [Clean Water Act]” is arbitrary, capricious, and not in accordance with law, and is thus a violation of the Administrative Procedure Act. Idaho Conservation League v. Browner, 968 F. Supp. 546, 549 (W.D. Wash. 1997).

42. The delay in finalizing a federal standard that complies with the Clean Water Act is unreasonable. Raymond Profitt Foundation v. US EPA, 930 F.Supp. 1088, 1102-1105 (E.D. Pa. 1996). Further, the Administrator’s failure to establish standards under 33 U.S.C. §1313(c)(4)(B) under the circumstances of this case is arbitrarily, capricious and not in accordance with law.

43. The delay in establishing a federal Tier II water quality standard has caused and continues to cause harm. 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 discharges, at this time.

Given the determination of the EPA Administrator that the state’s antidegradation methodology was underprotective of those waters, the failure to finalize a federal water quality standard that the Administrator believes is appropriately protective, has resulted in a lack of protection of those waters during the intervening years.

44. Despite the lack of lawful Tier II antidegradation standards, the state Division of Water continues to issue water discharge permits under the Act allowing new and increased pollution of Kentucky water bodies in a manner that would violate a proper antidegradation standard. This ongoing failure causes continued harm to the interests of the Plaintiffs and the environment of Kentucky.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiffs respectfully request that this Court:

1. Accept jurisdiction over this action,

2. Determine and declare that pursuant to 33 U.S.C. 1365(a)(2) that the failure of the EPA Administrator to finalize an antidegradation standard that complies with law is a violation of 33 U.S.C. §1313;

3. Issue a declaratory judgment under Fed.R.Civ.Pro. 57 and 28 U.S.C. §§ 2201 et seq., determining that the failure of the EPA Administrator to finalize an antidegradation water quality standard that complies with the Clean Water Act constitutes agency action unlawfully withheld and unreasonably delayed within the meaning of 5 U.S.C. §706(1);

4. Enter a mandatory injunction under Fed.R.Civ.Pro. 65 and 33 U.S.C. 1365 directing the Administrator to finalize a standard that complies with the Clean Water Act within thirty days;

5. Award the plaintiffs all costs and expenses incurred in this action (including attorney and expert witness fees) under 33 U.S.C. §1365(d); and

6. Award the plaintiffs all other relief to which they appear or may become entitled.

Respectfully submitted,

___________________________

Phillip J. Shepherd

307 West Main Street

P.O. Box 782

Frankfort, KY 40602

(502) 227 1122

(502) 227 0010 fax

__________________________

Thomas J. FitzGerald

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, Kentucky 40602

(502) 875-2428

(502) 875-2845 fax

OF COUNSEL:

Albert Ettinger

Environmental Law & Policy Ctr.

35 E. Wacker Suite 1300

Chicago, Illinois 60601-2110

312 795 3707

312 795 3730 fax

Counsel for Plaintiffs

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