KENTUCKY WATERWAYS ALLIANCE * SIERRA CLUB CUMBERLAND CHAPTER * KENTUCKIANS FOR THE COMMONWEALTH * KENTUCKY RESOURCES COUNCIL, INC.* FLOYD'S FORK ENVIRONMENTAL ASSOCIATION
May 19, 2001
Christine Whitman, 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
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 begins the process of proposing and promulgating an antidegradation implementation procedure for the Commonwealth of Kentucky within a sixty (60) 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. 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. 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. The chair of Kentuckians for the Commonwealth is Lamar Keys, 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. 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 promulgate 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).
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. While the regulations adopted by the Commonwealth of Kentucky with respect to classification and criteria for discharges into Outstanding National Resource Waters and "use-protected" waters appear consistent with the federal counterpart requirements, 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 has "enabled" the Commonwealth in its chronic non-compliance with the antidegradation policy mandates by failing to "promptly" propose and promulgate 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. As a matter of law and public policy, EPA must begin the process of promulgating a Tier II antidegradation policy for the Commonwealth of Kentucky.
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 date, no action has 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 federa 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 to Tom FitzGerald, September 1, 1998 (attached).
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
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 promptly proposing and promulgating a federal water quality standard for the Commonwealth of Kentucky implementing Tier II antidegradation.
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 "Promptly" To Propose and Promulgate A Federal Water Quality Standard For Tier II Water Antidegradation
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.
40 CFR 131.21 and 131.22 provide the implementation procedure to be used by your agency in conducting the Section 303 review and approval of proposed state water quality standards. In relevant part, the regulations delegate to the Regional Administrator the authority and duty to review and approve state revisions to water quality standards within 60 days, or disapprove the revisions within 90 days, after the state submits the revisions, and to thereafter "promptly" propose federal water quality standards.
The August 7, 1997 triggered an obligation on the part of the Commonwealth to "adopt replacement standards consistent with the above discussion within 90 days of receipt of this letter." By letter dated October 9, 1997, Secretary James Bickford responded by declining to adopt such revisions and by instead committing to consider the changes 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 noted further that the triennial review process should begin in late spring or early summer of 1998.
The EPA disapproval of the state water quality standard and the failure of the state to respond by promulgating a regulation before November 7, 1997, triggered a mandatory, nondiscretionary duty and obligation on EPA's part to "promptly" implement a federal water quality standard for Kentucky in order to implement those aspects of the antidegradation policy that EPA found wanting. EPA's obligation under 40 CFR 131.22 to "promptly propose and promulgate" a federal water quality standard reflecting the changes specified in your letter of disapproval, is unmistakably mandatory. Raymond Proffitt Foundation v. EPA, 930 F.Supp. 1088, 1097 (E.D.Pa. 1996); Idaho Conservation League, Inc. v. Russell, 946 F.2d 717, 720 (9th Cir. 1991); Idaho Conservation League v. Browner, 968 F.Supp. 546, 548-9 (W.D.Wash. 1997).
EPA has failed to act to propose and promulgate a federal water quality standard since November 7, 1997, the ninetieth day after notification of disapproval of the Tier II antidegradation regulation.
EPA has been in default of this mandatory obligation to adopt federal water quality standards for Kentucky to implement Tier II antidegradation, for three and one-half years, and despite the assurance in September 1, 1998 that EPA planned to initiate the process for proposing a federal water quality standard "should it become evident that the proposed revisions do not fully address EPA's concerns[,]" EPA has not initiated that federal rulemaking.
Even assuming that the failure of EPA to act promptly after the state notified EPA that it would not act to promulgate the requested revisions within ninety-days after receipt of notification of disapproval in August, 1997 could be defended, it became clear on December 15, 2000 that the state had not adopted the revisions demanded by EPA in the disapproval. Rather than acting, however, EPA failed to disapprove the revisions within a ninety-day timeframe, and instead waited an additional five (5) months beyond the timeframe required by 40 CFR 131.21 before disapproving the state revisions on August 30, 2000. Kentucky declined to take any action in response to the August 30, 2000 letter on or before November 30, 2000.
It has now been over three and ? years since the state refused to make timely revisions to the disapproved water quality standard, fourteen months after EPA should have rendered a decision disapproving the December, 1999 revisions, and eight months since the deadline ran on the ninety-day window in which the state could have proposed revisions to the version of 401 KAR 5:030 which was finally disapproved on August 30, 2000. The Administrator's failure to perform the nondiscretionary duty to proposed and promulgate 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 Propose 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 proposed and promulgate 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 proposing and promulgating 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.
For the reasons stated herein, the above-named organizations, by and through counsel, respectfully demand that your agency propose and promulgate a federal Tier II antidegradation water quality standard for Kentucky within the next sixty (60) days, and make a binding commitment to complete that rulemaking within a ninety (90) day period, commencing with publication of an interim final rule as authorized and contemplated by 5 U.S.C. 553.
Tom FitzGerald, Esq.
Kentucky Resources Council, Inc.
P.O. Box 1070
Frankfort, Kentucky 40602