THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO ENVIRONMENTAL LAW AND POLICY CENTER 35 East Wacker Drive, Suite 1600 Chicago, IL 60601 MICHAEL S. FERNER SUSAN M. MATZ Plaintiffs, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY William Jefferson Clinton Building 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, D.C. 20460 SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency William Jefferson Clinton Building 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, D.C. 20460 1 Case No. V17 C¥ 1 Judge MAG. JUDGE JAMES R.KNEPPH Case: 3:17-cv-01032-JGC Doc #: 1 Filed: 05/17/17 1 of 12. PageID #: 1
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V17 C¥ 1 - US EPAMay 17, 2017 · after Ohio EPA'ssubmission ofthe list on October20, 2016. A copy ofthis notice is incorporatedherein by reference and attached hereto as Exhibit
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THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO
ENVIRONMENTAL LAW AND POLICY
CENTER
35 East Wacker Drive, Suite 1600Chicago, IL 60601
MICHAEL S. FERNER
SUSAN M. MATZ
Plaintiffs,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
William Jefferson Clinton Building1200 Pennsylvania Avenue, N.W.Mail Code: 1101A
Washington, D.C. 20460
SCOTT PRUITT, in his official capacity asAdministrator of the United States Environmental
Protection AgencyWilliam Jefferson Clinton Building1200 Pennsylvania Avenue, N.W.Mail Code: 1101A
ROBERT KAPLAN, in his official capacity asActing Regional Administrator of United StatesEnvironmental Protection Agency, Region 5,77 West Jackson Boulevard
JS44 (Rev. 08/16) CIVIL COVER SHEThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings orother papers as required by law except iprovided by local rules ofcourt. Ihis form, approved by the Judicial Conference of the United States in September 1974, isrequired for theuse ofthe Clerk ofCourt for thepurpose of initiating the civil docket sheet. (SEEINSTRUCT/OX'S ON NEXT RACE OE THIS FORM, I
I. (a) PLAINTIFFSEnvironmental Law & Policy Center; Ferner, Michael S.; Matz, Susan M.
DEFENDANTSU.S. Environmental Protection Agency; U.S. Environmental ProtectionAgency Administrator Scott Pruitt; U.S. Environmental ProtectionAgency Acting Regional Administrator Robert Kaplan
County of Residence of first t.isted Defendant(IN U.S. PUINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.
Attorneys IIf Known)
MAG. JUDGE JAMES R. KNEPP
(b) County ofResidence offirst Listed Plaintiff Cook County, ILIEXCEPT IN U.S. PUINTIFF CASES)
(C) Attorneys (Firm Name. Address, and Telephone Number)Firm: Environmental Law & Policy CenterAddress: 21 W. Broad St., 8th Floor, Columbus, OH, 43215Telephone Number: (857) 636-0371
II. BASIS OF JURISDICTION IPIacean -X",,, One DoxOnly,
0 I U.S. Government
Plaintiff
ZF 2 U.S. Government
Defendant
3 3 Federal Question
(U.S. Government Nota Party)
3 4 Diversity(Indicate Citizenship ofParties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Placean "X" in One Boxfor Plaintiff(CorDiversity CasesOnly) andOneBoxfor Defendant)
PIT-' DEI" PTF DEF
CitizenofThis State II 71 I Incorporatedor PrincipalPlace 0 4 34of Business In This State
Citizen of Another State
Citizen or Subject of aForeign Country
1 2 O 2 Incorporated and Principal Placeof Business In Another State
"13 3 3 Foreign Nation
0 5 "15
0 6 0 6
IV. NATU R E O F S UIT (Place an ''X''inOne Box Only) Click here for Nature ol'Sin c xle Descriptions.1 CONTRACT' TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STAT LIES 1
OHO Insurance PERSONAL INJURY PERSONAL INJURY "1 625 Drug Related Seizure l 422 Appeal 28 USC 158 7 375 False Claims Act
0 120 Marine 3 310 Airplane "1 365 Personal Iniury - of Properly 21 USC881 • 423 Withdrawal 7 376 Qui Tain (31 USC0 130 Miller Act "1315 Airplane Product Product Liability 71 690 Other 28 USC 157 3729(a))0 140 Negotiable Instrument Liability
71 320 Assault. Libel &
Slander
71 367 Health Care/
Pharmaceutical
Personal Injurv
7
7
400 State ReapportionmentO 150 Recovery ol Overpayment PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment "1 820 Copyrights 430 Banks and Banking
O 151 Medicare Act "1 330 Federal Employers' Product Liability "1 830 Patent 7 450 Commerce
O 152 Recovery of Defaulted Liability "1 368 Asbestos Personal "1 840 Trademark 7 460 DeportationStudent Loans • 340 Marine
71 230 Rent Lease & Ejectment "1 442 Employment O 510 Motions to Vacate 7 871 IRS- Third Party Act'Review or Appeal of71 240 Torts to Land "1 443 Housing/ Sentence 26 USC 7609 Agency Decision
3 245 Tort Product Liability Accommodations
1 445 Amer. w/Disabilities -
Employment
3 530 General
3 535 Death PenaltyOther:
7 950 Constitutionality of71 290 All Other Real Property IMMIGRATION State Statutes
71 462 Naturalization Application"1 446 Amer. w Disabilities - 71 540 Mandamus & Other "1 465 Other Immigration
Other • 550 Civil Rights Actions
"1 448 Education "1 555 Prison Condition
71 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an "X" in One Box Only)2\ 1 Original 3 2 Removed from
Proceeding State Court3 3 Remanded from
Appellate Court3 4 Reinstated or
Reopened"I 5 Transferred from
Another District(specifv)
3 6 MultidistrictLitigation -Transfer
Cite the U.S. Civil Statute under which vou are filing (Do nor citejurisdictional statures unless diversity,:Clean Water Act, 33 U.S.C. § 1251 et seq; 33 U.S.C § 1313(d)(2); 33 U.S.C. § 1365(b)
"I S MultidistrictLitigation -Direct File
VI. CAUSE OF ACTION Brief description of cause:Citizen suit regarding U.S. EPA's failure to timely act on Ohio's impaired waters list as required by statute
Civil Categories: (Please check one category only).
1.0
^:BGeneral Civil
Administrative Review/Social SecurityHabeas Corpus Death Penalty
*lfunder Title 28, §2255, name the SENTENCING JUDGE:
CASENUMBER:
II. RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If anaction isfiled orremoved tothis Courtand assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, andsubsequently refiled, it shall be assigned to the same Judge who received the initialcase assignment without regardforthe place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible forbringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."
This action is I IRELATED to another PENDING civil case. This action is I REFILED pursuant to LR 3.1.
If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.
III. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall befiled at any of thedivisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For thepurpose of determining the proper division, and for statistical reasons, the following information is requested.
ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH
PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.
(1) Resident defendant If the defendant resides in a county within this district, please set forth the name of suchcounty
COUNTY:
Corporation For the purpose of answering the above, a corporation is deemed to be a resident ofthat county in whichit has its principal place of business in that district
(2) Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the countywherein the cause of action arose or the event complained of occurred.
COUNTY: . ^ . _.,_,Lucas County, OH
(3) Other Cases. Ifno defendant is a resident of this district, or if the defendant is a corporation not having a principleplace of business within the district, and the cause of action arose or the event complained of occurred outsidethis district, please set forth the county of the plaintiffs residence.
COUNTY:
IV. The Counties in the Northern Districtof Ohio are divided intodivisions as shown below. Afterthe county isdetermined in Section III, please check the appropriate division.
EASTERN DIVISION
AKRON
CLEVELAND
YOUNGSTOWN
WESTERN DIVISION
~~/\ TOLEDO
(Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)(Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland)(Counties: Columbiana, Mahoning and Trumbull)
Environmental Law & Policy CenterProtecting the Midwest's Environment and Natural Heritage
January 9, 2017
Via Certified Mail
Gina McCarthy, AdministratorUnited States Environmental Protection AgencyAriel Rios Building1200 Pennsylvania Avenue, N.W.Washington, DC 20460
Re: Notice of Intent to Sue Administrator of the Environmental Protection Agency forFailure to Perform Its Nondiscretionary Duty Under the Clean Water Act
Dear Administrator McCarthy:
The Environmental Law & Policy Center ("ELPC") is writing to notify you of our intent to filesuit against the Administrator of the U.S. Environmental Protection Agency ("U.S. EPA" or•'Agency") in U.S. District Court pursuant to section 505(a)(2) of the Clean Water Act ("CWA"),33 U.S.C. § 1365(a)(2). The basis for this intent to sue is U.S. EPA's failure to perform itsnondiscretionary duty to act on the State of Ohio's October 20, 2016, submission of a CWAimpaired waters list under 33 U.S.C. § 1313(d) within thirty days.
I. Background
A. State Impaired Waters Lists
Under the Clean Water Act, each state must adopt water quality standards that "consist of thedesignated uses of the navigable waters involved and the water quality criteria for such watersbased upon such uses," in order "to protect the public health or welfare, enhance the quality ofwater and serve the purposes of the Act. 33 U.S.C. § 1313(c)(2)(B). CWA section 303(d)mandates that the state must then "identify those waters within its boundaries for which theeffluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title arenot stringent enough to implement any water quality standard applicable to such waters." 33U.S.C. § 1313(d)(1)(A). The state must also "establish a priority ranking for such waters, takinginto account the severity of the pollution and the uses to be made of such waters." Id. Thedetermination that a particular water is not meeting an applicable water quality standard iscommonly referred to as an "impairment" finding, and the full ranking as an "impaired waters"list.
Each state must submit this list of impaired waters to U.S. EPA for approval, and the agencymust "approve or disapprove" the list "not later than thirty days after the date of submission." Id.
§ 1313(d)(2). U.S. EPA regulations require each state to prepare and submit its impaired waterslist every two years. 40 C.F.R. § 130.7(d)(1).
B. CWA Citizen Suit Provision
CWA section 505(a) states that "any citizen may commence a civil action .... (2) against theAdministrator [of U.S. EPA] where there is alleged a failure of the Administrator to perform anyact or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C.§ 1365(a). A plaintiff may not bring a non-discretionary duty suit under CWA section 505(a)(2)unless, at least 60 days prior, the plaintiff has given notice of the action to the Administrator ofU.S. EPA. 33 U.S.C. § 1365(b)(2). The notice "shall identify the provision of the Act whichrequires such act or creates such duty, shall describewith reasonablespecificity the action takenor not taken by the Administrator which is alleged to constitute a failure to perform such act orduty, and shall state the full name, address and telephone number of the person giving thenotice." 40 C.F.R. 135.3(b). The notice must also "state the name, address, and telephonenumber of the legal counsel, if any, representing the person giving the notice." Id. § 135.3(c).
II. Legal Claim
The Ohio Environmental Protection Agency ("Ohio EPA") submitted its list of impaired watersto U.S. EPA on behalf of the State of Ohio on October 20, 2016, as part of an IntegratedWater Quality Monitoring and Assessment Report ("Integrated Report").' The Integrated Reportdesignated the Lake Erie Western Basin shoreline, Lake Erie Central Basin shoreline, and LakeErie Island shoreline as impaired due to the impacts ofblooms of toxic algae on several uses,including aquatic life and public drinking water supply use. Integrated Report at D-6.
Under 33 U.S.C. § 1313(d)(2), U.S. EPA had a duty to act on that submission by November 19,2016, or (since that was a Saturday) at least by the next business day, November 21, 2016. TheAgency did not do so, and has not yet taken any action to approve or disapprove Ohio's impairedwaters list as of the writing of this letter. CWA section 505(a)(2) authorizes a suit against U.S.EPA where the agency has thus failed to carry out its mandatory duty to approve or disapprovean impaired waters list within thirty days of submission. Hayes v. Whitman, 264 F.3d 1017, 1023(10th Cir. 2001). Accordingly, ELPC is providing this letter as notice of its intent to bring suitagainst U.S. EPA for that failure under CWA section 505(a)(2).
III. Party Giving Notice
The party giving notice of this claim is:
Environmental Law & Policy Center21 W. Broad St., Ste. 500Columbus, OH 43215(614)670-5586
See http://www.epa.ohio.gov/dsw/tmdl/OhioIntegratedReport.aspx.
We encourage you to contact us as soon as possible should you desire to discuss the allegationsset forth in this letter. If this matter is not resolved to our satisfaction, we will file suit on or afterthe sixtieth day following the date of this letter.
Sincerely,
Copies by certified mail to:
Hon. Loretta LynchAttorney General of the United StatesU.S. Department ofJustice950 Pennsylvania Avenue, N.W.Washington, D.C. 20530