Opinion
Civil Action No. 03-1969 (CKK).
March 7, 2005
MEMORANDUM OPINION
Pro se Plaintiff Rick Rushing brings a citizen suit under the Clean Water Act, 33 U.S.C. § 1365 ("CWA"), and the Clean Air Act, 42 U.S.C. § 7607 ("CAA") (collectively "the Acts"), against Defendant, the Administrator of the Environmental Protection Agency ("EPA" or "the Administrator"), alleging the Administrator has violated nondiscretionary duties of both the Acts. Plaintiff argues that EPA employees engaged in rulemaking activity when they interpreted certain regulations in enforcing the Acts against him, which would constitute improper delegation of the Administrator's rulemaking duties. Additionally, he alleges the Defendant failed to provide regulations for identifying and resolving inconsistencies in regional enforcement practices. In response to Plaintiff's complaint, Defendant submits a motion to dismiss for lack of subject matter jurisdiction under, failure to state a claim, lack of personal jurisdiction, and failure to effectuate proper service of process pursuant to Federal Rule of Civil Procedure 12(b)(1), (6), (2) and (5). Defendant argues that the citizen suit provisions do not allow an action against discretionary agency conduct, and to the extent that the conduct was nondiscretionary, Plaintiff is estopped from bringing this lawsuit as a result of his criminal conviction for violations of the Acts. After considering the parties' briefs and the relevant law, the Court will grant Defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.
Plaintiff submitted a Surreply as part of his filings following Defendant's Reply to his Opposition. However, he did not move for permission to file a surreply. In ordinary course, the Court would not consider such a filing, which did not meet the procedural requirements of Federal Rule of Civil Procedure 15(d). Given that Plaintiff is proceeding pro se, the Court will consider his Surreply in addition to his Complaint and Opposition to Defendant's Motion.
I: BACKGROUND
Plaintiff Rushing alleges violations of the CWA and CAA in his citizen suit pending before the Court. Plaintiff was a "corporate officer and owner" of Technic Services, Inc. ("TSI"), a company contracting with the Alaska Pulp Corporation to clean up asbestos at a pulp mill near Sitka, Alaska. Compl. at 4; id. Attach. (identified in Compl. at 3, as "Plaintiff's Excerpt of Record") at 2-3. Hardly a stranger to the EPA, Plaintiff had "successfully . . . completed over three-hundred [sic] (300) Federal and State environmental cleanup projects statewide." Compl. Attach. at 2. Relations between Plaintiff and Defendant soured around March 26, 1996, when Region X EPA officials, employees of Defendant, instituted an investigation against Plaintiff following the onsite inspection on that date. Id. at 4. Region X of the EPA filed an administrative complaint against TSI for violations of the CAA in March 1997. Id. In February, 2000, Plaintiff was indicted for criminal violations of the Acts. During the criminal proceedings, Plaintiff "strongly opposed EPA's Region X interpretation of the regulatory requirements. . . ." Id. at 6. Plaintiff was found guilty of violating the Acts in the Sitka asbestos removal project, af decision which was affirmed by the Ninth Circuit. See United States v. Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002) (affirming Rushing's convictions on all counts, except one count of obstruction of justice in relation to the EPA investigation).
The Court looks to Plaintiff's attachments since Plaintiff specifically incorporated the Attachment by reference into his Complaint. Compl. at 3.
In this civil action, Plaintiff invokes the citizen suit provision of both Acts to complain that the Defendant violated "nondiscretionary duties" of the Acts by "failing to assure fairness and uniformity" in the enforcement of the Acts, "which allowed EPA subordinates to unlawfully alter or modify or increase the stringency of the Acts," and for failing to establish a means of resolving enforcement "inconsistencies." Compl. at 1. Plaintiff provides a list of 25 CAA statutory provisions and corresponding regulations he alleges were misapplied in the enforcement of the Acts against him, and argues that this "misapplication" is tantamount to rulemaking, an activity the Administrator cannot delegate to subordinate EPA employees. Compl. at 4-8. Further, Plaintiff identifies specific sections of the CWA which Defendant allegedly violated, alleges that Defendant denied him access to permit information, and alleges misconduct by the EPA and the Department of Justice ("DOJ") in the legal proceedings against Plaintiff. Compl. at 9-10.
Defendant disputes Plaintiff's allegations, and claims instead that Plaintiff is attempting to use this Court as a forum to relitigate his criminal conviction for violations of the Acts. Def.'s Mot. to Dismiss at 2-3. Defendant contends that Plaintiff "does not, and cannot, identify any statutory non-discretionary duty that EPA failed to perform," thereby defeating the Court's jurisdiction according to the citizen suit provisions of the Acts. Id. at 3, 12-13. Defendant argues that the failure to identify a nondiscretionary duty is fatal to Plaintiff's claim according to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), id. at 6 n. 2, and that none of the sections of either statute cited by Plaintiff create a nondiscretionary duty, id. at 6-12. In addition to these substantive arguments, Defendant asserts that Plaintiff did not effectuate proper service, and the action should be dismissed for lack of personal jurisdiction according to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). Id. at 13-14.
Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss purportedly reiterates Plaintiff's complaint and opposes Defendant's assessment of the claims. Pl.'s Mot. in Opp'n at 12-26 ("Pl.'s Opp'n"). However, he augments the complaint with an argument about the review of the Administrator's "action" according to the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"), and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"). Id. at 6-10. Plaintiff reiterates that his complaint alleges that the Administrator failed to act to promulgate new regulations to prevent EPA employees from interpreting the regulations as they did. Surreply at 7.
Plaintiff clarifies in his Surreply that NEPA was intended to only serve as a comparison for APA review. Surreply at 3.
Defendant's reply posits that neither the APA nor NEPA is incorporated into the citizen suit provisions of the CAA or CWA, and that Plaintiff's challenges to the substance of the EPA's interpretations of the Acts and their accompanying regulations are barred by the doctrines of issue preclusion and res judicata. Def.'s Reply to Pl.'s Opp'n at 1-2 ("Def.'s Reply"). Defendant maintains that Plaintiff has failed to identify any nondiscretionary duty actionable under the citizen suit provisions. Id.
Plaintiff, in his Surreply, states that he "agrees with and objects to this application in this case." Surreply at 8. The Court presumes Plaintiff means that he agrees with the general legal principles Defendant proffers which govern these doctrines, but disagrees with their application here. Though this statement is unclear, the Court finds its assumption supported by the accompanying text, which argues that the precise issues were not raised in Plaintiff's criminal trial. Id. at 8-9.
II: LEGAL STANDARDS
Granting judgment on a motion to dismiss for failure to state a claim under Rule 12(b)(6) is warranted only if it appears beyond doubt, based on the allegations contained in the complaint, that "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Alicke v. MCI Communications Corp., 111 F.3d 909, 912 (D.C. Cir. 1997). Similarly, although a court must dismiss a case under 12(b)(1) if the court lacks subject matter jurisdiction, "[t]he nonmoving party is entitled to all reasonable inferences that can be drawn in [his] favor." Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998).While the Court must construe the Complaint in the Plaintiff's favor, it "need not accept inferences drawn by the plaintiff if such inferences are not supported by the facts set out in the complaint." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, the Court is not bound to accept the legal conclusions of the nonmoving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
On a motion to dismiss for lack of personal jurisdiction pursuant to 12(b)(2), "[t]he plaintiff bears the burden of establishing a factual basis for the court's exercise of personal jurisdiction over the defendant." Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990). Proper service on the federal government is necessary to secure personal jurisdiction. Whalen Paper Pulp Mills v. Davis, 288 F. 438, 441 (D.C. Cir. 1923). In order to survive a motion for insufficient service of process, Plaintiff must demonstrate "that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (citation omitted).
III: DISCUSSION
The parties raise an array of legal arguments in support of their respective positions. The Court will begin by determining whether the citizen suit authorizes Plaintiff to bring his claims of EPA inaction or wrongdoing before the Court. Following this, the Court will determine whether the Acts create the mandatory duties Plaintiff alleges have been violated. Although the Court decides this case on the basis of Plaintiff's failure to state a claim and lack of subject matter jurisdiction, it includes an alternative discussion on dismissal for lack of personal jurisdiction and insufficiency of process.
A. Plaintiff Cannot Relitigate Allegations of EPA Wrongdoing
Plaintiff has assured the Court that he is not attempting to relitigate his criminal conviction. Pl.'s Opp'n at 12, 19; Surreply at 2, 9. The Court holds him to his word, based on the limited jurisdictional grant of the citizen suit provisions, as well as the doctrine of issue preclusion.
Foremost, jurisdiction over citizen suits does not encompass every grievance a citizen might have with the Administrator's actions. Rather, the plain language limits the Court to review of actions which are nondiscretionary. See 42 U.S.C. § 7604(a); 33 U.S.C. § 1365(a). As such, the Court cannot dictate how the Administrator must act. Sierra Club v. Browner, 130 F. Supp. 2d 78, 90 (D.D.C. 2001) ("Notably, the CAA does not allow district courts to address the content of EPA's conduct. . . ."); Envtl. Def. Fund v. Thomas, 870 F.2d 892, 899 (2d Cir. 1989) ("[T]he district court has jurisdiction under [ 42 U.S.C. 7604], to compel the Administrator to perform purely ministerial acts, not to order the Administrator to make particular judgment decisions."); Envtl. Def. Fund v. Leavitt, 329 F. Supp. 2d 55, 63 (D.D.C. 2004); New York Pub. Interest Research Group v. Whitman, 214 F. Supp. 2d 1, 3-4 (D.D.C. 2002). Therefore, to the extent that Plaintiff disputes the methods of EPA's enforcement activities, the Court cannot address the content of these actions under the purview of the citizen suit provisions.
Furthermore, even if the Court were able to exercise jurisdiction over the content of the EPA's actions, in light of the proceedings before the Ninth Circuit, it would be reluctant to do so. Plaintiff's complaint alleges that Region X engaged in unauthorized rulemaking as a result of "misapplication and misapprehension" of relevant regulations. See Compl. at 5-8. The Court rejects such an allegation based on the doctrine of issue preclusion. Application of issue preclusion is appropriate when the party against whom preclusion is asserted has had a full and fair opportunity to litigate that issue in an earlier proceeding. Allen v. McCurry, 449 U.S. 90, 95 (1980) (citations omitted).
These regulations, found in 40 C.F.R. §§ 61.141, 61.145, 61.150, were promulgated pursuant to 42 U.S.C. § 7412, which creates national emission standards for hazardous air pollutants ("NESHAP").
In his Attachment, Plaintiff states that "[t]he preponderance of evidence in this case proves the EPA's Inspection Report is void of any alleged violations in the [Alaska site]. . . ." Compl. Attach. at 34. However, he was convicted of these violations beyond a reasonable doubt, and the conviction which was affirmed, in part, on the basis of sufficient evidence. Technic Services, Inc., 314 F.3d at 1039-40. In addition, Plaintiff admits that "[d]uring the entire civil and criminal proceedings against Rushing's company, [TSI], Rushing strongly opposed EPA's Region X interpretation of the regulatory requirements and deceptive means used to justify alleged obstruction charges." Compl. Attach. at 6.
The Ninth Circuit upheld Plaintiff's conviction of violating the Acts under the regulations as they are written, not under a "rogue" Region X interpretation. See Technic Services, Inc., 314 F.3d at 1038-44. Plaintiff states that this conviction is being appealed to address "EPA unlawful acts," Pl.'s Surreply at 9, but his discussion refers only to allegations that EPA and DOJ solicited and presented false evidence, Compl. at 10. If, as he alleges, the agencies produced false evidence of violations, then his argument is that his conviction was improper on an evidentiary basis. However, that does not support an inference that either the CWA or CAA counts were based on improper standards. Therefore, based on the Ninth Circuit's decision, Plaintiff is precluded from arguing that Region X engaged in rulemaking activity in its enforcement action against him.
The analysis changes for Plaintiff's contentions that the EPA and DOJ solicited and presented false evidence, and violated information access requirements. Compl. at 9-10. Plaintiff insists that these wrongdoings were not known at trial, see Surreply at 9, and Defendant admits that it is unclear to what extent these issues have been raised, see Def.'s Reply at 6 n. 2. Consequently, the Court finds that these claims are not precluded. Instead, the Court will examine each provision of the statute to see whether a nondiscretionary duty existed. The consideration of these allegations of wrongdoing are considered in the limited context of whether the provisions cited present a nondiscretionary duty to act a different way. An allegation of a violation of some part of a statute does not create a nondiscretionary duty.
The Court does not reach the question of what would be an appropriate course of action if a mandatory duty to act was created, and if Plaintiff alleged a violation of that precise duty. Plaintiff alleged no violations of any mandatory duties within either Act, so the Court need not consider the extent to which these allegations of violations by the EPA and DOJ may have been subject to issue preclusion upon further proceedings in another court.
B. Plaintiff has Failed to Allege Violations of Any Nondiscretionary Duties
The citizen suit provisions of the CWA and the CAA, and their accompanying jurisprudence, establish that a citizen suit may be brought only when the Administrator has failed to perform a nondiscretionary, or mandatory, duty. After giving the agency a 60-day prior notice, a citizen may bring a civil suit "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," 42 U.S.C. § 7604(a)(2); 33 U.S.C. § 1365(a)(2); see also Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 17-18 n. 27 (1981) (stating that the CWA citizen suit provision was modeled on the CAA citizen suit provision). As this Court has previously stated, it can "only order EPA to take nondiscretionary actions required by the statute itself. . . . Notably, the CAA does not allow district courts to address the content of EPA's conduct. . . ." Sierra Club, 130 F. Supp. 2d 78, 90 (D.D.C. 2001). As the CWA mirrors the CAA's citizen suit provision, the Court finds its prior statement of the law applicable to both. Accord Natural Res. Def. Council, Inc. v. Train, 510 F.2d 692, 701-2 (1975) (describing the CWA citizen suit provision as a "clear parallel" to the CAA, except as to whom has standing to sue as a "citizen"); see also Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 61-62 (1987) (detailing the legislative history of the CWA citizen suit provision and its relationship to the CAA).
Notice is required under 42 U.S.C. § 7604(b) and 33 U.S.C. § 1365(b). Defendant does not dispute prior notice in this case.
When a citizen claimant disputes the EPA's interpretation of a statute, it is appropriate for the Court to engage in Chevron review. Sierra Club, 130 F. Supp. 2d at 90. The parties here contest whether Plaintiff has identified any nondiscretionary duty allegedly not undertaken by Defendant. The Court will separately consider the "duties" Plaintiff has identified under the CWA and CAA. Pursuant to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), a two-part standard of review is set up for district courts confronted with a question of an agency's interpretation of a statute the agency administers. The two-step process for the courts is to determine first, whether Congress has spoken to the precise question at issue, and if not, whether the agency's interpretation is reasonable. Chevron, 467 U.S. at 842-43. "If, however, the statute is silent or ambiguous on a particular issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. So long as the agency's interpretation is reasonable and consistent with the statute's purpose, the Court must defer to the agency's interpretation." Sierra Club, 130 F. Supp. 2d. at 90 (internal citations and quotations omitted).
The Court rejects Plaintiff's assertion of a mandatory duty imposed on Defendant pursuant to 18 U.S.C. § 3063. The citizen suit provisions of the Acts are both limited to "act[s] or dut[ies] under this chapter." See 42 U.S.C. § 7604(a)(2); 33 U.S.C. § 1365(a)(2). 18 U.S.C. § 3063 is outside of both chapters.
1. Nondiscretionary Clean Air Act Duties
Plaintiff's complaint asserts that the Administrator "fail[ed] to assure fairness and uniformity of the [asbestos removal standards]" and failed to provide "interfacing methods or means to detect such actions." Compl. at 4. This resulted in an alleged failure to perform the duties of 42 U.S.C. §§ 7412 (d), (f), (h), 7601(a), 7607(d), 7413(b) by the Administrator's failure to require the Regional Administrator to enforce the CAA as proscribed and failure to provide a means for detecting such aberrations from the enforcement standards. Compl. at 4, 8.
Plaintiff abandons this claim in his Opposition. See Pl.'s Opp'n at 19-21, 23-24. Therefore, the Court treats this as conceded pursuant to Local Civil Rule 7(b).
Plaintiff also alleges violations of 42 U.S.C. § 13103(b). While lengthy, the CAA does not encompass this section. The Court assumes that Plaintiff mistakenly cited, with a typo, the statutes at large citation for 42 U.S.C. § 7413(b), which is section 113 of the CAA. Sections 131 ( 42 U.S.C. § 7431) ("Land use authority") and 103 ( 42 U.S.C. § 7403) ("Research, investigation, training, and other activities"), had no discernible relevance. Nevertheless, Plaintiff does not refer to, or clarify, this citation in his opposition. See generally Pl.'s Opp'n at 12-13. Thus, the Court likewise treats it as conceded.
Plaintiff insists that he "is not challenging the substance, action or duties of final rules or properly promulgated standards enacted pursuant to rulemaking procedures of the ACTS, or interpretation thereof, or unenforced compliance order as suggested by Defendants [sic]." Pl.'s Opp'n at 12. Rather, he contends that the acts of "rogue" EPA employees violated the properly promulgated regulations, which turned them into "unlawfully enacted non-promulgated rules" in violation of 42 U.S.C. § 7607(d) and 5 U.S.C. §§ 552, 553 of the APA. Id. at 13. Furthermore, Plaintiff claims that 40 C.F.R. § 56.4 creates a mandatory duty for the Administrator to act. Surreply at 7.
Defendant avers that 42 U.S.C. § 7601(a) "does not create a broad duty to assure fairness and uniformity." Def.'s Mot. to Dismiss at 10. The statute provides that "the Administrator shall promulgate regulations establishing general applicable procedures and policies for regional officers and employees . . . to follow in carrying out a delegation [of powers or duties other than rulemaking], if any." § 7601(a)(2). Further, the regulations "shall be designed to assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in . . . enforcing the chapter" and "to provide a mechanism for identifying and standardizing inconsistent or varying criteria . . . employed . . . in . . . enforcing the chapter." § 7601(a)(2)(A), (C). According to Defendant, Plaintiff does not dispute that such regulations were promulgated as of December 24, 1980. Def.'s Mot. to Dismiss at 11; see also 40 C.F.R. § 56. As a result, "Plaintiff may not challenge the substance of those regulations now under the CAA citizen suit provision because review under that provision is limited to whether the mandatory duty was fulfilled and not to the content of the action taken." Def.'s Mot. to Dismiss at 11.
The Court does not read Plaintiff's Complaint to request the "substance" review suggested by Defendant. Instead, despite Plaintiff's erroneous reliance on 40 C.F.R. § 56.4, Plaintiff presents a colorable claim for § 7601(a) providing a mandatory duty to promulgate rules upon delegation of authority. However, the delegation of authority is not at issue.
In response to Defendant's argument that "the review of the substance of those regulations has long since passed" according to § 7607(b)(1), Def.'s Mot. to Dismiss at 11, the Court disagrees with the applicability of § 7607(b)(1), which makes no mention of rules promulgated under 42 U.S.C. § 7601.
The regulation provides, in relevant part, that the Administrator "shall include, as necessary, with any rule or regulation promulgated under Parts 51 and 58 of this chapter mechanisms to assure that the rule or regulation is implemented and enforced fairly and uniformly by the Regional Offices." 40 C.F.R. § 56.4(a). Though neither party identified this limitation of this regulation, the Court notes that it only applies to 40 C.F.R. §§ 51, 58. See id. Neither part regulates the asbestos removal standards, which are found in 40 C.F.R. § 61. See Compl. at 5-8. Though Plaintiff states that the regulation contains a mandatory duty, Surreply at 7, neither the plain language, nor the agency interpretation, agree. See Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) ("Generally, the court accords substantial deference to an agency's interpretations of its own regulations.") (citations omitted). Therefore, the Court relies instead on Plaintiff's averments that § 7601(a) provides such a duty. Pl.'s Opp'n at 12.
Here, Plaintiff "is not challenging the substance, action or duties of final rules or properly promulgated standards enacted pursuant to rulemaking procedures of the ACTS, or interpretation thereof, or unenforced compliance order as suggested by Defendants [sic]." Pl.'s Opp'n at 12. Rather, he depends on the Administrator's "mandatory duty by statute not to delegate his powers and duties of making regulations. . . ." Pl.'s Opp'n at 13. The Court finds that the Administrator could not have delegated his rulemaking authority unlawfully, since there is no support for such an inference. He could have only delegated such authority if Region X had engaged in rulemaking, which it did not. See supra III.A. Therefore, Chevron review is unnecessary here, because the parties' interpretations of the statute are not inconsistent as to the claim presented.
Plaintiff concludes this sentence with ". . . regulations subject to Section 7607(d)." Pl.'s Opp'n at 13. For reasons discussed below, 42 U.S.C. § 7607(d) does not apply to this claim.
Plaintiff argues that all new rules are subject to the provisions of this section, which incorporates the procedures of the APA. Pl.'s Opp'n at 13. Defendant states simply that "Plaintiff neither identifies a mandatory duty created by the subsection nor the way in which EPA allegedly violated such a mandatory duty." Def.'s Mot. to Dismiss at 12. Although Defendant provides no explanation other than to describe the section as "outlin[ing] the procedures for EPA rulemakings and the mechanisms for challenging them," see id., the Court agrees with Defendant's conclusion. Not only does the section provide no mandatory duty to promulgate any regulations, by its terms, it does not apply to regulations promulgated pursuant to 42 U.S.C. § 7601, located in Chapter III of the CAA. See 42 U.S.C. § 7607(d)(1). Even if it did apply to § 7601 regulations, challenges to rules under § 7607 are limited to appellate jurisdiction. See § 7607(d)(8). In addition, since the Court has already determined that no new rules were promulgated pursuant to 42 U.S.C. § 7412, see supra III.A., it is of no consequence that this section is included within the auspices of § 7607(d). See 42 U.S.C. § 7607(d)(1)(C).
2. Nondiscretionary Clean Water Act Duties
In addition to the alleged nondiscretionary duties created by the CAA, Plaintiff attempts to identify sections of the CWA which would confer a nondiscretionary duty upon Defendant to promulgate rules to identify and resolve inconsistencies among regional enforcement. Compl. at 9. Also, he identifies mandatory duties allegedly violated by the Regional Administrator to "assure fairness and uniformity" under the CWA. Id. Plaintiff purports to identify portions of the CWA which create these duties. Id. Specifically, Plaintiff alleges these nondiscretionary duties may be found in 33 U.S.C. §§ 1319, 1323(a), 1342(j), and 1365(a)(1)(B). Pl.'s Opp'n at 21-23. a. 33 U.S.C. § 1319
The provisions cited by Plaintiff appeared wholly irrelevant to this particular alleged duty. As such, the Court treated each allegation of violation as if the violation of that particular section created a mandatory duty.
Plaintiff did not raise this argument in his initial complaint. Therefore, the Court will not consider it.
Plaintiff cited also to 33 U.S.C. §§ 1311, 1318, presumably as bases for a nondiscretionary duty. Compl. at 9-10. Defendant responded in opposition to the interpretations of these sections, as well as § 1319 and § 1342. Def.'s Mot. to Dismiss at 7-9. Plaintiff, somewhat haphazardly, labels Defendant's attempt to interpret his complaint as "fraud." Pl.'s Opp'n at 21. The Court disagrees, finding Defendant's interpretation reasonable. As Plaintiff failed to respond to Defendant's arguments that neither § 1311 nor § 1318 independently confer a nondiscretionary duty on the Administrator, the Court treats this as conceded. See generally Pl.'s Opp'n at 21-23.
Importantly, Plaintiff identifies "violations" of the following subsections: 33 U.S.C. § 1319(c)(2)(B) (creating criminal liability for knowingly discharging a pollutant or hazardous substance into a sewer system); 33 U.S.C. § 1319(c)(4) (creating criminal liability for any "person" who makes false statements in certain required documents); 33 U.S.C. § 1319(c)(7) (defining hazardous substance); 33 U.S.C. § 1319(d) (authorizing civil penalties against a person violating permitting and discharge requirements). Compl. at 9-10. At the outset, the Court rejects Plaintiff's legal conclusion that alleged violations amount to a duty to act to create the regulations that Plaintiff insists were required. In his attempt to save this argument, Plaintiff posits that "the Complaint alleges that under delegation and authority of the Administrator, did [sic] unlawfully violate the rights of the Plaintiff and Laws of the United States as constructively implied by the reference to unlawful acts committed. Likewise, mere citation to enforcement statutes § 1319, informs the Administrator of a mandatory duty to act." Pl.'s Opp'n at 22 (internal citations and emphases omitted).
Plaintiff cites no authority in support of his position that any statutory section creating some mandatory duty to act incorporates all conceivable allegations of violations. The case he cites does nothing to advance this argument. United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1184 (D.Ariz. 1975) (finding that the Administrator must undertake either a criminal or civil enforcement action when there is a violation of permit requirements, inspection and monitoring requirements, or effluent limitations). Simply because the statutory provision compels a mandatory duty, it does not follow that this particular duty is relevant here. Plaintiff specifically states that the mandatory duties at issue are the failure of the regional administrator to assure fairness and uniformity under the CWA, and the failure of the Administrator to "detect and determine such acts." Compl. at 9.
To be sure, Plaintiff cannot argue that the Administrator failed to act pursuant to the requirements of § 1319, which were enforced against him. Def.'s Reply at 8. If Plaintiff is arguing that § 1319 compelled the Administrator to take an enforcement action against these employees allegedly violating the same section, the section does not authorize this liability. See 33 U.S.C. § 1362(5) ("[T]he term 'person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body."); United States Dep't of Energy v. Ohio, 503 U.S. 607, 617-18 (1992) (noting that although § 1365 includes civil penalties under § 1319, the United States is not defined as a "person" under § 1319 and therefore that remedy is not authorized under § 1365). Therefore, Plaintiff has alleged no violation of a mandatory duty as provided by this section.
Neither §§ 1319(c) or (d) empower the promulgation of regulations. The Court is not presented with a situation of an ambiguous statutory provision that may imply a duty. Instead, it is confronted with statutory provisions which are simply not relevant to the duties allegedly violated, a theme which runs throughout Plaintiff's CWA claims.
b. 33 U.S.C. § 1323(a)
The section provides that "[e]ach department, agency, or instrumentality of the executive . . . branch of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants . . . shall be subject to . . . all Federal . . . requirements. . . ." 33 U.S.C. § 1323(a). Plaintiff alleges in his Surreply that the pulp mill was under EPA jurisdiction, and the inspection activities "may or could have" resulted in the discharge of pollutants. Surreply at 10. This tardy allegation comes when Defendant has no chance to respond, and is inconsistent with Plaintiff's facts in the Complaint. See Compl. Attach. at 3 (stating the pulp mill was "operated by Alaska Pulp Corporation," which "desired to clear the mill site of environmental concerns"). As a result, the Court limits itself to the textual discussion, since Plaintiff's attempt to save his claim from Defendant's contention that this section applies only to federally operated facilities, see Def.'s Reply at 8, comes too late.
Plaintiff asserts § 1323(a) as a waiver of sovereign immunity, permitting him to assert a § 1319 "a mandatory duty to perform," "but because of failure to act, has directly affected the lawful manner of enforcement and validity of Sections § 1342 and § 1318, hence, the Administrator has a mandatory duty coupled by statute (§ 1323) and law of the United States of America and the U.S. Constitution to abide by the laws of this country. [sic]" Pl.'s Opp'n at 23. The Court interprets Plaintiff's position as contending Defendant had a duty to enforce the criminal provisions of § 1319 against Region X and DOJ employees due to their allegedly illegal actions under §§ 1318 and 1342, because they waived sovereign immunity to such actions under § 1323. This argument is mooted, however, by the Court's determination that § 1319 does not create any nondiscretionary duty applicable to the instant case. In addition, § 1323 imputes no rulemaking duty upon the Administrator, negating any possibility of regulations as a nondiscretionary duty under this section.
To the extent that Plaintiff argues that the alleged violations of 33 U.S.C. § 1342 create a mandatory duty for the Administrator to issue appropriate rules, the Court reiterates its finding that no unauthorized rulemaking took place by Region X employees under this section. The Court looks to Defendant's Motion, which proffers § 1342(j) as "[t]he only subsection potentially relevant to Plaintiff's suit. . . ." Def.'s Mot. to Dismiss at 8. The section provides that "[a] copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit . . . shall further be available on request for the purpose of reproduction." 33 U.S.C. § 1342(j). Defendant argues that the section does not contain a deadline, and consequently creates no mandatory duty. Def.'s Mot. to Dismiss at 8 (citing Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987). In the alternative, Defendant postulates that even if it did create a mandatory duty, Plaintiff has not identified any permit that was not available to the public. Id.
Notably, Plaintiff does not dispute the characterization of subsection (j) as the only relevant subsection. Pl.'s Opp'n at 23. Rather, Plaintiff denies that a deadline is necessary to create a mandatory duty. Id. Plaintiff cites only Chevron in support of his position, entreating the Court to undertake that review to resolve the matter in his favor. Plaintiff complains the records of the specific permits at issue in the underlying criminal action vanished during those proceedings. Pl.'s Opp'n at 23; see also Compl. at 9 (alleging denial of access to permit information during civil and criminal proceedings). Plaintiff purportedly made FOIA requests to retrieve these permit records, although Plaintiff does not indicate whether these requests were successful. Id.
In his Reply, Defendant relies on issue preclusion to prevent Plaintiff from raising this complaint, because Plaintiff could have raised it in his defense, see Def.'s Reply at 6 n. 2, and because the Ninth Circuit held that "the evidence was undisputed that there was no current NPDES wastewater permit in place authorizing the discharge of pollutants and that the stormwater permit did not cover Defendants' activity," Def.'s Mot. to Dismiss at 9 n. 4 (quoting Technic Services, Inc., 314 F.3d at 1043).
Defendant posits that a deadline is necessary in order to impose a mandatory duty. Def.'s Mot. to Dismiss at 8. The Court does not read Thomas to stand for that precise proposition. Rather, Thomas provides that "a nondiscretionary duty of timeliness may arise even if a deadline is not explicitly set forth in the statute, if it is readily-ascertainable by reference to some other fixed date or event." Thomas, 828 F.2d at 790. The statute contains no time limit, but rather states simply that permit application information "shall be available on request." 33 U.S.C. § 1342(j). Defendant interprets this to mean that at some point after a request is made, the information sought will be made available. Plaintiff's interpretation would make the information available the moment it is sought.
The Court turns to Chevron review to determine whether "available on request" imposes a mandatory "duty of timeliness" following a request for permit application information. After a review of the legislative history and purposes of the Clean Water Act, the Court concludes that Defendant's interpretation is entitled to deference, since it is reasonable and consistent with the intentions expressed therein.
First, Defendant's interpretation is reasonable in light of the fact that Congress knows how to include mandatory deadlines when it chooses. Section 1342 itself is rife with examples, from precise dates, e.g. § 1342(p)(6) ("Not later than October 1, 1993, the Administrator . . . shall issue regulations. . . ."), to a deadline imposed following another event, e.g. § 1342(c)(1) ("Not later than ninety days after the date on which a State has submitted a program . . . the Administrator shall. . . ."). Other than the request for the information, the availability of the information is not tied to any event. Moreover, the request is not an administrative function, and, therefore, is not linked to an EPA deadline.
Second, Defendant's interpretation is consistent with the purposes of the section and the statute. "An essential element in any control program involving the nation's waters is public participation. The public must have a genuine opportunity to speak on the issue of protection of its waters." Sen. Rep. No. 92-414 at 72 (1971). This requirement rests on the "extremely important" role of public scrutiny in "the exercise of authority under this section . . . [to] insur[e] expeditious implementation of the authority and a high level of performance by all levels of government and discharge sources." Id. From this, it seems that the purpose of this section was to permit the public to aid in the enforcement of federal water pollution standards, so to provide citizens the ability to act as a whistleblower to keep the Administrator enforcing effluent limitations as required by permits. Importantly, the legislative history does not mention with what haste such information must be made available.
Plaintiff does not elaborate on what implied deadline this section purportedly creates. He merely refutes Defendant's position that a deadline is required, and cites only to Chevron. Taken to its literal extreme, Plaintiff's expression of the deadline may in some instances mandate the EPA to act in "real time" upon receipt of permit applications.
The purpose of the Act is to "[r]estor[e] and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Neither this stated purpose, nor the intent of § 1342(j), require the EPA to make available upon demand, no matter the date of application and date of demand, the permit application information. Indeed, to require it to do so may forestall the processing of permit applications, or result in hasty permit review and issue, which could have detrimental effects on water quality. Thus, Defendant's interpretation of having the information available to the public without a deadline is consistent with these purposes, as Defendant is more aware of its own limitations of staffing and budget, factors which would influence response time, than the Court. Finding Defendant's interpretation of this section is owed deference, the Court concludes that § 1342(j) imposes no mandatory deadline to provide information. See Thomas, 828 F.2d at 792 ("Where Congress has established no date-certain deadline — explicitly or implicitly — but EPA must nevertheless avoid unreasonable delay, it does not follow that EPA is, for the purposes of section 304(a)(2) under a nondiscretionary duty to avoid unreasonable delay.").
Plaintiff cites to 33 U.S.C. § 1365(e), the savings clause of the CWA, as well as 42 U.S.C. § 7604(e), the savings clause of the CAA, in his Opposition only, in support of an argument that the Acts incorporate APA review. See Pl.'s Opp'n at 7. The Court will not consider this argument, since it was not raised in Plaintiff's Complaint.
In a final attempt to identify a nondiscretionary duty, Plaintiff resorts to the citizen suit provision itself, arguing that "once the Administrator is notified of an alleged violation pursuant to § 1319(c)(4), the Administrator has a mandatory duty to act, either by issuing an order to comply or bring a civil action. . . ." Pl.'s Surreply at 4; see also Pl.'s Opp'n at 14. Again, the Court finds itself presented with a section of the statute that is irrelevant.
There are two main reasons that Plaintiff's reference to § 1365(a)(1)(B) is irrelevant. First, the Court has already determined that an alleged violation of § 1319 does not amount to a violation of the alleged nondiscretionary duties at issue here. Second, as Defendant points out, § 1365(a)(1)(B) is limited to situations where an effluent standard or limitation, or an EPA order, have been violated. See Def.'s Reply at 7; 33 U.S.C. § 1365(a)(1)(B). The Court agrees that "Mr. Rushing does not allege any facts to support the claim that EPA violated an effluent standard or limitation. . . ." Def.'s Reply at 8. As a result, this reference is wholly irrelevant to the Administrator's alleged duty to promulgate means for identifying inconsistencies.
In sum, the Court finds that Plaintiff has failed to identify any section within either the CAA or CWA which would create the mandatory duties that Plaintiff has alleged exist. As a result, the Court does not have jurisdiction over Plaintiff's claims, and will dismiss for failure to state a claim and lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Since Plaintiff has failed to state a claim, the Court need not resolve the issue of the availability of APA review.
C. Service of Process Personal Jurisdiction
As an additional matter, Defendant argues that this suit should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) because Plaintiff has failed to properly serve the complaint and summons on the United States. Def.'s Mot. at 13-14.
Defendant argues that service was improper under Federal Rule of Civil Procedure 4(i)(1). Def.'s Mot. to Dismiss at 13. According to Defendant, Plaintiff sent the summons and complaint to the United States Attorney by certified mail, but did not address the envelope to the civil process clerk as required. Id. Plaintiff does not dispute the fact that he did not address the envelope to the civil process clerk. Pl.'s Opp'n at 24-25. Instead, Plaintiff relies on proper service on the Attorney General pursuant to the citizen suit provisions of both Acts. Id. at 25.
Although the parties' arguments are somewhat more opaque than necessary, it appears that Plaintiff has only partially perfected service. Federal Rule of Civil Procedure 4(i)(1) requires Plaintiff to serve the United States by "(A) delivering a copy of the summons and of the complaint to the Unites States attorney . . . or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney" as well as "(B) by also sending a copy of the [documents] by registered or certified mail to the Attorney General of the United States. . . ." Fed.R.Civ.P. 4(i)(1). The statutes at issue in this suit provide that a plaintiff must serve both the Attorney General and the Administrator. See 42 U.S.C. § 7607(c)(3), 33 U.S.C. § 1365(c)(3).
These statutes contain nearly identical language. See 42 U.S.C. § 7607(c)(3) ("Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and on the Administrator."); 33 U.S.C. § 1365(c)(3) ("Whenever any action is brought under this section in a court of the Unites States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator.")
The Court has examined the affidavits of service filed on the docket of this case, which indicate that Plaintiff has mailed a copy of the summons and the complaint by registered and certified mail to Administrator Leavitt, the United States Attorney, and the Attorney General. As a result, Plaintiff appears to have met the service requirements of both 42 U.S.C. § 7607(c)(3) and 33 U.S.C. § 1365(c)(3). However, Plaintiff does not appear to have complied with the service requirements of Rule 4. Although Plaintiff properly served the Attorney General, Plaintiff did not properly serve the United States Attorney. The rule obligates Plaintiff to either "deliver" the summons and complaint to the United States Attorney, or "send a copy of the summons and of the complaint by registered or certified mail . . . to the civil process clerk at the office of the United States attorney. Plaintiff did neither, but rather sent the summons and complaint to the United States Attorney by registered and certified mail.
Plaintiff's service therefore appears to be partially defective. The Court notes, however, that if this were the only problem with Plaintiff's suit, the Court would allow Plaintiff additional time to perfect service.
IV: CONCLUSION
After careful consideration of the parties' briefs and the relevant case law, the Court shall grant Defendant's Motion to Dismiss for failure to state a claim and lack of subject matter jurisdiction according to Federal Rule of Civil Procedure 12(b)(1) and (b)(6). An Order accompanies this Memorandum Opinion.