holding that “compliance with the permit program is a prerequisite to lawful discharge of pollutants”
How later courts described this case
- holding that “compliance with the permit program is a prerequisite to lawful discharge of pollutants”
- finding that the trial court acted reasonably in incorporating a publication schedule into its order that the EPA publish effluent limitation guidelines within one year to compel performance of the EPA’s statutory duty
- noting, with respect to the Administrator of EPA claiming inadequate resources to comply with statutory duty, that “[t]he sound discretion of an equity court does not embrace enforcement through contempt of a party’s duty to comply with an order that calls him to do an impossibility”(quotation omitted)
- affirming district court's timetable given missed statutory deadline and lack of progress toward compliance
Written by the judges who cited it.
The opinion
ROBB, Circuit Judge
(dissenting):
Although I do not quarrel with the able discussion and resolution of the merits in the majority opinion I believe the District Court should have dismissed this action for want of jurisdiction.
Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365 provides:
§ 1365. Citizen suits — Authorization; jurisdiction
(a) Except as provided in subsection (b) of this section, 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.
* * * 5k * *
Notice
(b) No action may be commenced—
(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,
*731 NRDC did not give the notice required by the statute; indeed at oral argument in this court counsel for NRDC stated that they purposely did not give notice because the giving of notice would have entailed a delay.
The notice requirement is plain and unequivocal and applies to this case, but the majority opinion in effect reads it out of the statute. In this I cannot concur.