March 17, 2004 Certified Mail, Return Receipt Requested Michael Leavitt, Administrator U.S.

Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 Dear Administrator Leavitt: Pursuant to Section 505(b)(2) of the Federal Water Pollution Control Act (CWA or the Act), 33 U.S.C. 1365(b)(2), and 40 C.F.R. 135.2 - .3 we hereby provide notice of our intent to bring suit against you, pursuant to Section 505(a)(2), 33 U.S.C. 1365(a)(2), for failure to perform non-discretionary duties under the Act . As detailed below, for years the State of Florida has failed to carry out its National Pollutant Discharge Elimination System (NPDES) program in conformity with the requirements of Federal law and the 1995 Memorandum of Agreement between Florida and EPA (the MOA). Floridas widespread and longstanding failures to obey federal law (of which EPA has long been aware) have, in turn, given rise to your non-discretionary duty under 33 U.S.C. 1342(c)(3), and/or 40 C.F.R. 123.63, to withdraw Floridas delegated authority to administer its NPDES program. The parties providing notice are the Natural Resources Defense Council (NRDC), 1200 New York Avenue, Washington, DC 20005 (202-289-6868), Sierra Club, 85 Second Street, San Francisco, CA 94105 (415-977-5500), and Linda Young, 606 East College Avenue, Tallahassee, FL 32301 (850-222-9188). The parties will file this action at the end of the 60-day notice period or shortly thereafter; the undersigned will act as counsel for them. EPAs Delegation of NPDES Authority to Florida, and EPAs Duty to Withdraw Delegation when a State Program is Deficient Pursuant to Section 402(b) of the Act, in 1995 EPA delegated to Florida primary responsibility for implementing and enforcing the NPDES program in the state.1 The
1

See National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of Florida and the United States Environmental Protection Agency Region 4; see also Sec. 403.0885 Fla. Stat., Establishment of federally approved state National Pollutant Discharge Elimination System (NPDES) Program. 408 C Street N. E. Washington, DC 20002 TEL: (202) 5471141 FAX: (202) 5476009 www.sierraclub.org

Department of Environmental Protection (FDEP) carries out these duties for the State of Florida. To obtain and then to retain NPDES delegation, a states program must be conducted in accordance with the requirements of the Act and its implementing regulations.2 Section 1342(c)(2) of the Act provides that [a]ny State permit program under this section shall at all times be in accordance with this section and guidelines promulgated pursuant to section 1314(i)(2) of [the CWA]. The MOA provides that FDEP: is responsible for drafting, providing public notice, issuing, revising and terminating permits in accordance with [the terms of the MOA] and 40 CFR parts 122-123 and any other applicable regulations. MOA at D-10, Section IV. Florida stated in the MOA that its delegated program is the program equivalent to NPDES, under section 402 of the Clean Water Act. MOA at D-3. Section 402(c)(3) of the Act provides that [w]henever the Administrator determines after public hearing that a State is not administering a program under this section in accordance with requirements of this section, he shall so notify the state and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. EPAs regulations specify a number of different grounds that require withdrawal of state NPDES delegation, including (40 CFR 123.63(a)(1)): (1) Where the states legal authority no longer meets the requirements of 40 CFR Part 123 (the NPDES regulations), including: (i) (ii) Failure of the state to promulgate or enact new authorities when necessary; or Action by a state legislature or court striking down or limiting state authorities.

EPAs regulations further provide (40 CFR 123.63(a)(2)) that state program authority shall be withdrawn: (2) Where the operation of the State program fails to comply with the requirements of the NPDES regulations, including: (i) (ii) (iii) Failure to exercise control over activities required to be regulated under the NPDES regulations, including failure to issue permits; Repeated issuance of permits which do not conform to the requirements of the NPDES regulations; or Failure to comply with public participation requirements of the NPDES regulations.

See 40 CFR Part 123.

What follows is a list of those areas where Florida has failed to at all times be in accordance with 402 and accompanying regulations, thus triggering EPAs nondiscretionary duty under 402(c)(3) and 40 CFR 123.63 to withdraw Floridas NPDES permitting authority. I. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES AUTHORITY DESPITE BEING AWARE THAT FDEP CANNOT ISSUE NPDES PERMITS WITH LIMITS THAT ARE REQUIRED BY FEDERAL LAW A. Dioxin Florida has five pulp and paper mills that discharge dioxin. Dioxin is a toxic chemical subject to a federal water quality criterion published under 304(a) of the CWA, and as such must be the subject of a water quality criterion for Florida. Pursuant to 303(c)(3) of the Act, in 1992 EPA promulgated a dioxin water quality criterion for the State of Florida because the state had failed to act on its own. 40 CFR 131.36(d)(6), 57 Fed. Reg. 60848 (Dec. 22, 1992). Federally promulgated criteria are applicable to the waters of a state when state criteria have been superceded or supplemented (40 C.F.R. 131.21(c)) and [t]he criteria established in this section are subject to the States general rules of applicability in the same way and to the same extent as are other numeric toxics criteria 40 CFR 131.36(c)(2). Florida NPDES permits must assure compliance with all applicable requirements of the Act, including the requirement that no permit be issued unless it can assure compliance with all applicable water quality standards. 40 CFR 122.44(d)(1); 40 CFR 123.25(a)(15). The federal water quality criterion for dioxin is an applicable standard, and therefore any Florida NPDES permit must assure compliance therewith. However, FDEP maintains that it cannot require an NPDES permittee to comply with water quality-based effluent limits for dioxin because the state of Florida has not itself promulgated a water quality standard for dioxin. In other words, the State of Florida considers the federal dioxin standard to be irrelevant in state NPDES permitting. In a recent hearing challenging the permit for a paper mill, counsel for FDEP argued: Even though EPA has adopted in the federal regulation the dioxin standard for the state of Florida, that has not been adopted under state law. And this is a state administrative proceeding on a state issued wastewater permit, which then acts as a federal permit because EPA has determined that the way the state runs its wastewater program is consistent with the Clean Water Act. However, under 403051[sic- a citation to state law], the department cannot put requirements and conditions in a permit that do not exist in state law in either DEP rules or in the statutes that govern this permit. So I would request that with regard to the state putting in this state permit, the EPA adopted dioxin standards; that that be

precluded because its not a state rule; that the standard is not adopted by state law. [Emphasis added.]3 This position that federally promulgated water quality standards in Florida have no force and effect in Florida NPDES permitting -- was accepted by the hearing officer in denying the permit challenge. The Secretary of FDEP then ratified this position in approving the permit in question and upholding the decision of the hearing officer. This interpretation of state law limits state authority in such a way that Floridas laws no longer meet the requirements of the NPDES rules and the CWA. See 40 CFR 123.63(a) (1)(ii). By definition, FDEPs lack of legal authority to issue permits with limits that assure compliance with applicable water quality standards means that Floridas NPDES program is not in accordance with [section 402] and guidelines promulgated pursuant to section 1314(i) (2) of the CWA, and is thus issuing permits which do not conform to the requirements of the NPDES regulations. EPA is therefore required under 40 CFR 123.63(a)(1)(ii) and (a)(2)(ii) to revoke Floridas NPDES program. EPA is obviously aware of this situation. Among other things, EPA Region IV reviewed and approved the permit discussed above. NRDC and the Clean Water Network have both repeatedly discussed this gap with Region IV staff. (See Attachment A EPA correspondence regarding the Agencys ability to rely on water quality certification for dioxin in the absence of state recognition of the EPA dioxin standard.) In acknowledgement of the conflict in CWA interpretation, Region IV recently provided FDEP with a legal and technical analysis demonstrating that the ongoing discharge from a second Florida pulp mill is causing ongoing in-stream violations of the federal dioxin standard and therefore EPA would not remove the affected stream from its CWA 303(d) impaired waters list.4 EPAs listing decision conflicts with Floridas listing decision for the same water body. B. Phosphorous Florida is obligated under a federal court consent decree to adopt phosphorus water quality standards for the Everglades area by 2003, and to attain these standards by 2006.5 However, in 2003 Florida enacted two laws that limit the states ability to incorporate water quality based effluent limitations (WQBELS) for phosphorus into NPDES permits in the Everglades. These two laws, SB 26 and SB 54A, delay the effective date of Floridas phosphorus standard until 2016. As a result, FDEP will be unable to issue NPDES permits with phosphorous WQBELS -- as required by the CWA and by federal court order because, as discussed above, FDEP maintains that it cannot set WQBELs in NPDES permits in the absence of a state water quality standard for that pollutant. The Florida legislature has thus
3

Putnam County Environmental Council, et al., v. Georgia-Pacific Corp. et al., Case No. 012442, Transcript of pretrial proceeding, Feb. 13, 2002. 4 See Attachment B, letter from EPA Region IV Office of Legal Support, Carol Baschon, to FDEP, regarding Fenholloway River listing and dioxin contamination. 5 See United States v. South Florida Water Management District, 847 F. Supp. 1567, 1569 (S.D. Fla. 1992).

limited FDEPs authority to administer the NPDES program as required by federal law, and 40 CFR 123.63(a)(1)(ii) thus requires EPA to withdraw Floridas NPDES authority. Again, EPA is well aware of Floridas actions. This newly enacted legislation received national publicity, and prompted a ruling from the Federal judge administering the Consent Decree (to which the United States is a party) that this legislation will not be allowed to take effect on Federal lands because it is inconsistent with the decree. II. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES AUTHORITY DESPITE BEING AWARE THAT FDEP REFUSES TO ISSUE NPDES PERMITS TO ENTIRE CLASSES AND CATEGORIES OF DISCHARGERS FOR WHICH THE ACT REQUIRES PERMITS. A. Concentrated Animal Feeding Operations. The Clean Water Act requires Concentrated Animal Feeding Operations (CAFOs) to obtain NPDES permits. 33 U.S.C. 1362(14). Dairies with 700 or more mature dairy cows are deemed CAFOs and subject to this requirement. (40 CFR 122.23.) 6 By FDEPs own count, there are approximately 55 dairy CAFOs with more than 700 mature dairy cattle in Florida that have not obtained NPDES permits. FDEP has neither exempted any of these CAFOs from NPDES permitting requirements nor followed through with any enforcement actions after its own inspector concluded that a number of these dairies needed NPDES permits and were not eligible for a permitting exemption. On March 5, 2004, the Circuit Court of the Second Judicial Circuit ruled that Florida had not adopted rules and regulations, which properly implement its statutorily imposed duties to protect Floridas waters from CAFO pollution. Save our Suwannee, Inc. et al. v. State of Florida Department of Environmental Protection, Case No. 2001-CA-001266 (March 5, 2004) at 2 (Attachment C). The court further found that DEP is required to administer the NPDES permitting program adopted pursuant to the federal Clean Water Act and the MOA, and is also statutorily required to operate its federally authorized NPDES program in accordance with federal law. However, notwithstanding such statutory duty, and the MOA, DEP has never established a permit system which requires a dairy to apply for a permit to operate a CAFO, or apply for an exemption from permitting. Id. at 4. The court then ordered FDEP to administer a NPDES permitting program for dairy CAFOs in the State of Florida, (id.) and to develop an enforcement program since none exists today. Id. at 7. This decision recognizes that with respect to dairy CAFOs in Florida, there has been a complete failure to exercise control over activities required to be regulated under the NPDES regulations, including failure to issue permits. Under 40 CFR 123.63(a)(2)(i), EPA has a mandatory duty to withdraw Floridas NPDES program delegation.
6

Dairies with less than 700 mature cattle also can qualify as CAFOs if they meet certain discharge criteria, see 40 CFR 122.23(b)(6), or are designated by the permitting authority, see 40 CFR 122.23(c).

Once again, EPA has been fully aware of Floridas failure to implement NPDES permitting for these CAFOs, as reflected both in email correspondence between EPA Region IV and FDEP, and EPAs NPDES program review documents. 7 B. Underground Injection Wells and Other Discharges to Hydrologically Connected Surface Waters The Clean Water Act requires Florida to permit all point sources that discharge into waters of the United States, including any discharge to groundwater that is hydrologically connected to waters of the U.S. See US v. Eidson, 108 F.2d 1336 (11th Cir. 1977); Idaho Rural Council v. Bosma , 143 F.Supp.2d 1169 (D.Idaho 2001); McClellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F. Supp. 1182, 1196 (E.D. Cal. 1988), vacated on other grounds, 47 F.3d 325 (9th Cir. 1995); Friends of Santa Fe County v. LAC Minerals, 892 F. Supp 1333, 1357 (D. N.M. 1995); Quivira Mining Co. v. U.S. E.P.A., 765 F.2d 126 (5th Cir. 1985). See also 40 CFR 123.28, which requires that state law must provide authority to control the disposal of pollutants into wells. Such authority shall enable the State to protect the public health and welfare and to prevent the pollution of ground and surface waters by prohibiting well discharges or by issuing permits for such discharges with appropriate terms and conditions. 1. Underground injection discharges Numerous sewage treatment plants and industrial sources in Florida discharge effluent and stormwater via underground injection wells. Many of these discharges, because they occur in areas of karst geologic formations, migrate and re-surface in near shore and other surface waters. Significant amounts of the hundreds of millions of gallons of sewage and other contaminated fluids that are being injected each day are, in effect, discharging into these near shore areas that include the surf zone and coral reefs. These discharges are causing and contributing to excessive nutrient levels, eutrophication, large scale algal blooms, coral reef organism death, and the loss of South Florida recreational and commercial fisheries, among other injuries. 8 FDEP has not issued NPDES permits to the underground injection wells that are discharging to groundwater that is hydrologically connected to waters of the United States. Despite the fact that EPA is well aware of these unpermitted indirect discharges, EPA has taken no action to compel Florida to issue NPDES permits for them. 9
7

Attachment D, letter to Mark Bardolph from Hilda Hatzell, EPA Region IV (Feb. 28, 2000); see also EPA semi-annual reviews of Florida water programs, 2000 through 2002. 8 See, inter alia, Comments: Proposed Revision to the Federal Underground Injection Control Requirements for Class I Municipal Wells in Florida (65 FR 42234), filed by Sydney T. Bacchus, Ph.D., Hydroecologist, (July 4, 2003). 9 See, e.g., Water Quality Concerns in the Florida Keys: Sources, Effects and Solutions, prepared by William Krucynski, Florida Keys National Marine Sanctuary, Water Quality Protection Program (September 1999) at 19-20; Comments on Notice of Data Availability, 68 Fed. Reg. 23666 (2003), by LEAF, July 7, 2003, citing LaPoint, B. and P. Barile, Discrimination of Nitrogen Sources to Harmful Macroalgal Blooms on Coral Reefs Off

Remarkably, even though EPA acknowledges that underground injection discharges are resulting in the migration of contaminants from areas where it [effluent] was supposed to be confined to areas where it is prohibited [under the Safe Drinking Water Act],10 and is contaminating drinking water as well as surface waters, EPA has proposed revisions to federal regulations that would simply authorize the continued migration of this pollution into drinking water sources. This, rather than enforce the existing prohibition against continued underground injection in cases where migration into drinking water is occurring.11 2. Unpermitted Point Source Discharges to Groundwater and Surface Waters In the entire time that FDEP has had NPDES authority, it has never issued a NPDES permit to the Smurfit Stone facility in Panama City, a major paper mill, despite the facilitys ongoing discharges to surface waters. FDEP apparently concluded that Smurfit Stones continuing discharge, via unlined lagoons that are hydrologically connected to adjacent surface water (as well as the occasional direct discharge) could not qualify for an NPDES permit.12 EPA has turned a blind eye to this flagrant violation of the CWA requirement that each discharger hold a valid NPDES permit. C. Unregulated Phosphate Mining Discharges The phosphate mining industry is known by FDEP and EPA to be a major source of continuing water pollution in the state of Florida, contributing both to ongoing problems with nutrient over-enrichment (due to massive loadings of phosphorus) and to uncontrolled spills and the threat of spills causing acute toxicity and fish kills. The clay settling ponds of the phosphate mining industry are analogous to CAFO animal waste lagoons. They are set up to receive ongoing discharges of contaminated mining wastes; the liquid component of the mining waste is variously seeping out the bottom, spilling out of leaks and breakages or conveyed to surface waters via discrete conveyances that drain the swales and berms surrounding the ponds. By nature of their construction these sites predictably overflow, are breached and/or deliberately drain into state waters. As with CAFOs, the reasonable likelihood that discharges will repeatedly occur is sufficient grounds for mandating NPDES permits. Yet, the state has issued no permits and EPA has taken no action. Southeast Florida, Final Report (2003). 10 Relative Risk Assessment of Management Options for Treated Wastewater in South Florida: Wastewater Challenges in South Florida, U.S. EPA, see Notice of Availability (NOA) - 68 FR 23673 May 5, 2003, at ES-2. 11 Revision to the Federal Underground Injection Control (UIC) Requirements for Class I Municipal Wells in Florida, 65 FR 42234 (July 7, 2000). NRDC joined other environmental organizations in submitting comments in opposition to these revisions. 12 The facility apparently is being treated simply as an indirect discharger and an Industrial User under 40 CFR 403.3(h), but it has a state Industrial Wastewater Permit because it does in fact have surface water discharges.

III. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES AUTHORITY DESPITE BEING AWARE THAT FDEP HAS REPEATEDLY ISSUED PERMITS THAT DO NOT CONFORM TO CWA REQUIREMENTS. A. FDEP Has Issued NPDES Permits That Grossly Violate The Acts Time Limits For Permits And Compliance Schedules. 1. Permit terms and compliance schedules The CWA and federal regulations both provide that the term of an NPDES permit may not exceed five years. CWA Sec. 402(b)(1)(B); 40 CFR 122.46. In addition, any state schedules of compliance shall require compliance as soon as possible, but not later than the applicable statutory deadline under the CWA.13 States that use compliance schedules to enable permittees to come into compliance with water quality standards may do so only in conformity with the CWA. 14 Federal rules regarding compliance schedules are clear. The first NPDES permit issued to a new source or new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge. 40 C.F.R. 122.47(a)(1) and (2). These rules do not allow for any compliance schedules for permits issued to continuing discharges at the same location. Despite these unambiguous limits on the maximum permit term and/or on any compliance schedule, FDEP has issued an NPDES permit to the Georgia-Pacific paper mill on Rice Creek that includes authorization to start discharging into a new water body beginning over eleven years from when the permit was issued. (Adding insult to injury, the permit was accompanied by an Administrative Order that invalidates many of the limits in the permit during that eleven-year period; as a result, Georgia-Pacific will continuously violate water quality standards in Rice Creek during that time.) The Clean Water Act does not allow for an 11-year NPDES permit, and an Administrative Order purporting to grant an eleven year schedule of compliance violates all conceivable statutory and regulatory standards. FDEP issued this permit pursuant to 403.088(2)(e) F.S., a provision of Florida law that purports to authorize to issue permits for discharges that will not meet permit conditions or applicable statutes or rules under certain listed circumstances. This authorization runs directly counter to the CWA, as a Florida Grand Jury expressly found in a 1999 report. The Grand Jury reported that the exceptions in 403.088(2) F.S. authorize issuance of permits for activities that do not conform to the Clean
13 14

See 40 C.F.R. 122.47(a)(1); 40 C.F.R. Part 123.25(a)(16) and (17). In the Matter of Star-Kist Caribe, Inc., NPDES Appeal 88-5, EAB, Environmental Administrative Decisions (May 26, 1992).

Water Act.15 EPA has known of this report, and of Section 403.088(2), since at least the 1999 Grand Jury Report and of the Georgia-Pacific permit since it was drafted - but has taken no action. 2. Administrative Continuances Another FDEP mechanism for extending permit terms is through administrative continuances for permits that are not lawfully entitled to such continuances. CWA regulations provide that a NPDES permit that has expired may be administratively continued only if the applicant has submitted a timely and complete application for renewal, and delegated state NPDES programs may then continue existing permits until the effective date of a new permit if state law allows. 40 CFR 122.6(d) However, these rules contemplate that an existing discharge will be permitted to continue its lawful activity as a stopgap measure while the permitting agency completes its paperwork. The rules do not contemplate the use of administrative continuances when the applicant seeks a permit for a new discharge to a different water body, or when the applicant is violating water quality standards under its expired permit. FDEP has administratively continued permits for major paper mill dischargers even when the permit application is not for a renewal of the same discharge but instead is for a discharge to a new water body (Georgia-Pacific; Buckeye; International Paper). And, in the case of Georgia-Pacific, FDEP even found a way to administratively continue an expired permit when the applicant failed to timely submit its renewal application, through use of an imaginary extension of time to submit the application. These continuances have been allowed to persist for up to a decade two full NPDES permit terms. FDEP uses them to authorize continued discharges that have never attained compliance with applicable standards in effect rewarding the worst polluters with an endless permit to pollute. Such practices are inconsistent with the CWA, yet EPA has done nothing to stop this practice. B. FDEP Has Issued NPDES Permits that Fail To Conform to the Most Basic Minimum NPDES Requirements Section 403.088(2)(e) F.S. is not the only provision of Florida law that runs directly counter to the CWA. Section 403.0611 F.S., Alternative methods of regulatory permitting; department duties (adopted in the 2000 legislative session) provides that: The Department of Environmental Protection is directed to explore alternatives to traditional methods of regulatory permitting, provided that such alternative methods will not allow a material increase in pollution emissions or discharges. Working with industry, business associations, other government agencies, and interested parties, the department is directed to consider specific limited pilot projects to test new
15

Report of the Special Grand Jury on Air and Water Quality, in the Circuit Court of the First Judicial Circuit In and For Escambia County, Florida, to the Honorable Judges of the Court, June 10, 1999, at p. 76-77.

compliance measures. These measures should include, but not be limited to, reducing transaction costs for business and government and providing economic incentives for emissions reductions. The department shall report to the Legislature prior to implementation of a pilot project initiated pursuant to this section. This was the provision that FDEP relied on in not issuing NPDES permits to CAFOs (see pp. __, supra). And because the alternative method described here need not comply with applicable water quality standards it need only not allow a material increase in emissions -- it violates basic Clean Water Act requirements. Thus the Save our Suwanee decision not only enjoined FDEP from using 403.0611 as an excuse for not issuing NPDES permits to CAFOs, but also enjoined FDEP from using it to avoid permitting any other industrial operations throughout the state that are required to be regulated pursuant to the NPDES permitting program. (Attachment C; emphasis added.) Although aware that 403.0611 on its face violates the requirement that Floridas permit program at all times be in accordance with the Clean Water Act, and equally aware that FDEP has invoked this provision as authority to justify blatantly illegal activity, EPA has done nothing to correct this situation. In reality, EPA has a mandatory duty under 40 CFR 123.63(a)(2)(i) and (ii) to revoke Floridas NPDES permitting authority because FDEP has failed to exercise control over activities required to be regulated under the NPDES regulations, and has repeatedly issued permits that do not conform to the requirements of the NPDES regulations. IV. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES PROGRAM DESPITE BEING AWARE OF FLORIDAS FAILURE TO PROVIDE THE REQUIRED JUDICIAL REVIEW OF PERMITS AND IMPLEMENTING REGULATIONS.

State delegated programs must provide an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally issued NPDES permit. 40 C.F.R. 123.30. Thus state administrative hearing officers and courts must have the authority to decide whether permits comply with the CWA and applicable regulations. Nevertheless, FDEP has maintained (at times successfully) in administrative challenges to proposed permits and to Clean Water Act program implementation generally that state Administrative Law Judges lack the authority to consider whether an NPDES permit complies with the Federal Clean Water Act. Thus in Florida, state judicial review is inherently unequal to federal court review, in violation of the Acts requirements for delegated programs. 1. Administrative challenges to individual permits In a recent contested permit adjudication, the Department of Administrative Hearings (DOAH) Administrative Law Judge refused to consider claims that an NPDES permit violated the CWA and federal NPDES regulations. The Secretary of the FDEP, in his final order upholding the DOAH ruling and issuing the disputed Georgia-Pacific permit, ruled:

10

The ALJ correctly concluded that the Petitioners claims alleging violations of federal environmental laws are beyond the jurisdiction of this state administrative proceeding. See Curtis v. Taylor, 648 F.2d 946, 948 (5th Cir. 1980) (concluding that, in a State administrative hearing under sec. 120.57, F.S., a DOAH hearing officer was not empowered to consider claims that state actions were invalid based on alleged violations of federal law.) 2. Judicial review of administrative decisions While misinterpretations of law by Administrative Hearing Officers such as this normally would be corrected through the judicial review process, that is not so in Florida. By failing to ensure appropriate judicial review of permit challenges, Florida completely insulates errors of administrative hearing officers and the Secretary of the FDEP in violation of the Clean Water Act. Florida law does allow administrative challenges to FDEPs permitting decisions, and appeals from the administrative decision normally proceed directly to the appropriate District Court of Appeals (DCA). Section 120.68(1), F.S. However, in a recent decision of the 1st DCA, that court seriously restricted the ability of the public to challenge administrative decisions.16 It did so by accepting FDEPs argument that a citizen lacked standing to appeal an adverse decision on an NPDES permit, despite her uncontested showing that she had long used the affected water body for recreational purposes. Even though she met the requirements established by the Florida Supreme Court in Legal Environmental Assistance Fund v. Clark, 668 So.2d 987 (Fla. 1996), the court dismissed the appeal for lack of injury because the proposed NPDES permit would result in a net environmental benefit. Neither FDEP nor the permittee (Georgia-Pacific) contended that the paper mills effluent would meet water quality standards. (Indeed, it does not.) But the ALJ and the court determined that the permit would result in a net environmental benefit because the paper mills discharge would be improved when compared to past discharges. This net environmental benefit standard, of course, has no support in the CWA or in Floridas administrative code. A party is adversely affected when water quality standards are violated even if they are violated slightly less than they previously have been. This erosion of appellants standing rights is all the more troubling in a case, like this one, in which the facts at issue namely the degree of environmental harm actually formed one of the grounds for the attempted appeal. FDEP has already invoked the Young decision to quash the publics right to judicially contest a permit decision in at least one other case. And since it is the 1st DCA that issued the decision, it will have an overwhelming negative impact upon the ability to challenge NPDES permit decisions, because as FDEPs headquarters is located in its jurisdiction, the First District Court of Appeals hears the majority of these appeals.

16

Linda Young v. Georgia-Pacific et. al., 1st DCA, No.: 1D02-3673, August 6, 2002, at 21.

11

Equally troubling is the fact that the court in Young dismissed the appeal without issuing a written opinion, which prevents any further appeal to the Florida Supreme Court.17 In 2002, the Florida Supreme Court moved to ameliorate the problem of its District Courts of Appeal failing to issue written opinions by amending Fla. R. App. P. 9.330 to allow a party to request the District Court of Appeal to issue a written opinion in order to allow for further review. Ms. Young asked the 1st DCA to issue such a written opinion, but the court refused to do sothus precluding further judicial review. The Young decision follows on the heels of another 1st DCA decision denying standing to the Sierra Club, even though the Sierra Club argued that its members were adversely affected because they use the rivers into which, allegedly, mercury discharge from the cement plant will flow and accumulate in fish Florida Chapter of the Sierra Club v. Suwannee American Cement Co., 802 So.2d 520, 522 (Fla. 1st DCA 2001). Indeed, the 1st DCA judge who dissented from the Young decision stated her belief that Sierra Club was wrongly decided and should not be followed as precedent to disallow standing in Young. The fundamental problem posed by both Sierra Club and Young is that they have created an unattainable and arbitrarily high standard that must be met in order to establish standing. They violate the Florida Supreme Courts requirements as enunciated in LEAF, supra. They also run afoul of long established principles of standing in federal courts. They demonstrate that the State of Florida is not providing a means to obtain judicial review that is the same as that provided in federal permit proceedings.18 3. Challenges to the states implementation of NPDES permitting for a category of dischargers Save Our Suwannee et al. v. Florida DEP provides another example of where FDEP argued that whether agency actions or permits comply with the Clean Water Act may not be litigated in state courts: COURT: But Florida, in assuming that responsibility [i.e., delegated 402 authority] and in the memorandum of agreement, have agreed, have they not, to enforce federal laws and regulations? DEP LAWYER: No. NRDC LAWYER: The regulation that is specifically identified in that letter, (i.e., the MOU), 40 CFR Section 122.23, is the same section that is specifically identified in the Memorandum of Agreement that says that the Florida department of environmental protection has agreed to implement a permitting program for CAFOs as defined under 40 CFR 122.23. DEP LAWYER: Again, I am still going to have to go back to my earlier point, in that one what we agreed to in the memorandum of agreement with EPA was to run the
17 18

Fla. R. App. P. 9.030(a)(2)(A). 40 CFR 123.30, Judicial review of approval or denial of permits.

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NPDES program in accordance with state law. And what we did as part of that assumption was to identify a kind of map tack, if you will, how our regulations and we had to go and amend our statutes and rules to be consistent with Clean Water Act.19 . COURT: Well, I thought all of these terms and everything come from the federal statutory scheme. DEP LAWYER: No, Sir. Judge, what we have adopted is a set of rules. And its contained in 62-670 of the Florida Administrative Code. Those are our rules pertaining to dairies in the State of Florida. And they are to be consistent with the Clean water Act. And if we are inconsistent in some way with federal law and you have got to understand that federal law has shifted and changed over the years since we assumed the program in 95. Thats an issue thats not appropriate for this forum. Its a federal issue.20 Fortunately, the court soundly rejected this argument, holding (Attachment C, at 7): DEP has a mandatory, statutorily imposed duty, to adopt and enforce rules and regulations to establish a permit system to properly administer and enforce the Federal NPDES permitting program in Florida, and to control pollution to the waters of this state in violation of state law DEP has failed to carry out this mandatory duty to establish a permit system to properly administer the Federal NPDES permitting program in this state Given FDEPs consistent interpretation of its obligations under federal law, EPA has a mandatory duty to revoke Floridas NPDES permitting authority. 4. Challenges to overall implementation of the CWA: In still another challenge to state implementation of the TMDL listing and cleanup requirements of Section 303 of the Act, the FDEP again successfully maintained that noncompliance with the CWA could not be adjudicated in state court. Indeed, the Administrative Law Judges Order in this case went even further, in effect allowing state law to limit the scope and effect of the CWA: the Legislature [of Florida] provided: The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to sec. 303(d) of the Clean Water Act or 40 CFR Part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation. Section 403.067(11), Florida Statutes.
19 20

Transcript of 10/21/03 hearing; In Re: Save our Suwannee v. DEP, No. 01-1266, at 11 Id. at 35-36.

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Implementation of the CWA involves federal-state cooperation. The EPA and the department have separate, yet often intertwined, statutory duties and responsibilities. To this end, it appears that the CWA, and in particular 33 U.S.C. Section 1313(d), gives the states a primary role to develop and implement the TMDL program, and material here, the methodology for determining which waters are impaired. . Absent express statement of congressional will that the states are required to implement 33 U.S.C. sec. 1313(d) in a particular manner when developing a methodology as proposed here, the Florida Legislature requiring the Department to implement the CWA in a different manner from that which is stated in Section 403.067 [Fla. Statutes], it would be inappropriate for an administrative law judge in this rule challenge proceeding to consider the validity of the proposed rules in light of the CWA and EPA regulations, and in a manner inconsistent with Section 403.067 and other Florida statutes bring implemented.21 In effect, FDEP has effectively blocked (1) administrative challenges to individual permits; (2) judicial appeals of permit challenges; (3) challenges to the NPDES permitting program for a category of permittees, and (4) challenges to the integrity of FDEPs overall implementation of the Act. Although the 2nd Judicial Circuit has now soundly rejected FDEPs interpretation, FDEPs position is clear that it is not prepared to meet the judicial review equivalency requirements of the NPDES delegation rules. Because Florida interprets its state law as precluding meaningful state administrative or judicial challenges to NPDES permits, the NPDES permit program and the Clean Water Act as a whole, Floridas program violates 40 CFR 123.30. Therefore, 40 CFR 123.63(a)(2) (iii) requires EPA to withdraw Floridas program for failure to comply with the public participation requirements of the Act. V. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES PROGRAM DESPITE BEING AWARE THAT FLORIDA LAW PREVENTS FDEP FROM RESTRICTING NPDES PERMITS FOR WATERS THAT EPA DETERMINES DO NOT MEET WATER QUALITY STANDARDS.

Floridas so-called Impaired Waters Rule, raises the specter of systemic NPDES permitting problems in Florida waters that EPA determines are impaired (i.e., not meeting water quality standards) but that Florida refuses to place on its list of impaired waters pursuant to Section 303(d) of the Act. While the CWA prohibits any increases in existing discharges or new discharges into such impaired waters, in flat contravention of the Act the Impaired Waters Rule expressly prohibits FDEP from taking any action to restrict dischargers unless the receiving waters have been designated by Florida as impaired under 62-303 F.A.C.
21

Lane et al. v. DEP et al., Case No 01-1797 and consolidated cases, Order dated May 22, 2001, at 8-10 (available online at http://www.doah.state.fl.us/docdoc/2001/001332/0100133205220101.pdf).

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Even though NRDC and the Clean Water Network have repeatedly brought this situation to EPAs attention,22 EPA has refused to take any action. Because Florida law prevents FDEP from restricting NPDES discharges into waters that EPA determines are impaired, EPA has a non-discretionary duty under 40 CFR 123.63(a)(1) to revoke Floridas NPDES delegation. VI. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES PROGRAM DESPITE FDEPS FAILURE TO PROVIDE FOR MEANINGFUL PUBLIC PARTICIPATION IN PERMITTING DECISIONS.

Federal regulations require that state NPDES delegation be withdrawn if the state does not provide for meaningful public participation, not just at the stage of judicial review, but also in the earlier stages of permit review and issuance. 40 CFR 123.63(a)(2)(iii); 40 CFR 124.10. Florida violates these requirements in several ways. A. FDEPs Deceptive Use of Notices of Intent to Deny a Permit The CWA requires public notice be given of the intent to deny an NPDES permit. Specifically (40 CFR 124.6(b)): (b) If the Director tentatively decides to deny the permit application, he or she shall issue a notice of intent to deny the permit. A notice of intent to deny the permit application is a type of draft permit which follows the same procedures as any draft permit If the Directors decision is that the tentative decision to deny the permit was incorrect, he or she shall withdraw the notice of intent to deny and proceed to prepare a draft permit Obviously, the requirement that the agency withdraw an intent to deny notice if the agency reverses itself and decides to issue the permit is intended to give interested parties an opportunity to file comments or otherwise oppose the draft permit. But not in Florida. On more than one occasion, FDEP has issued a Notice of Intent to Deny a permit, and then proceeded to issue the draft permit without first withdrawing the initial Notice of Intent to Deny. The problem is that FDEP then asserts that anyone who relied on the Notice of Intent to Deny and did not then take action on the proposed denial (which is understandable, as they would not be adversely affected by it) are precluded from challenging the permit on the grounds that they had failed to petition for a hearing on the draft permit denials and hence had not preserved their right to administrative review! Under this Catch-22, parties lack standing to challenge a denial (since they will not be adversely affected by a denial of an application) but cannot obtain party status to challenge a permits issuance, due to their failure to timely petition for an administrative hearing.

22

See, e.g., Attachment E, Letter from Linda Young, Clean Water Network, to Jimmy Palmer, EPA Region IV Regional Administrator, February 5, 2003. See also Attachment A, NRDC correspondence with EPA Region IV Water Division Director James Giattina, Jan. 26, 2004 and Feb. 6, 2004.

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An example of this is a permit that was issued to Stone Container Corporation on March 18, 1999. FDEP had denied Stone Container a permit in the late 1980's because the company could not provide reasonable assurance that its discharge to surface waters would meet water quality standards. Stone initiated an administrative proceeding and litigation languished in court for several years; eventually FDEP put the whole proceeding on hold. Then, in approximately June 1998, Stone Container published a notice of administrative proceeding that stated that DEP intended to deny their permit, and that anyone substantially affected could petition for party status. On December 29, 1998, the same notice was published again. Despite these notices, on March 18, 1999, FDEP issued a state Industrial Wastewater permit (not the NPDES permit that was required) to Stone Container, and efforts by citizens to challenge this illegal permit were denied by FDEP. B. FDEP Secretary Failure to Recuse Himself in Situations of Conflict or Bias Thwarts Meaningful Public Participation

In Florida the Secretary of FDEP is cast as the final decision maker on whether to approve or disapprove NPDES permits that are challenged through the administrative process. This procedure is problematic in and of itself, because the Secretarys own staff (whom he can hire and fire at will under Floridas civil service laws) has drafted the permits he is called upon to review on the basis of an administrative law judges recommended order. Apart from the inherent disinclination of an agency head to overrule subordinates in contested cases, at times Floridas former Secretary of Environmental Protection23 showed particularized bias that should have disqualified him as an objective arbiter. In several cases during the past three years, parties challenging proposed NPDES permits sought recusal of Secretary Struhs as final decision maker on the grounds that he has shown bias or prejudice. In each instance he denied those requests, and ruled against the challengers. In the Georgia-Pacific permit discussed elsewhere in this letter, the problem with Floridas administrative review procedure became abundantly clear. Petitioners moved for Secretary Struhs to disqualify himself for bias and prejudice, on the basis of such comments as the following letter to the editor Secretary Struhs wrote to the Jacksonville Times-Union while the contested permit was pending before the agency: One would think that bipartisan support for a plan that delivers measurable results might engender support from the environmental community, or at least a cease-fire until its success is proved. Instead, thousands of taxpayers dollars must now be spent to defend the agreement against the challenge of a handful of litigants who do not even live in the community.24

23

David Struhs left his post as DEP Secretary on March 1, 2004 to become Vice President of International Paper. 24 Linda Young et al., v. DEP et al., OGC Case No. 01-0866, Petitioners Motion to Reconsider Denial of Motion to Disqualify, filed Aug. 22, 2002, Appendix C.

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On August 6, 2002, the First District Court of Appeal issued an Order to Show Cause why a writ of mandamus should not be entered because the Secretary had not ruled on the motion to disqualify him. Secretary Struhs responded by simultaneously denying the motion to disqualify, and denying the permit challenge. This maneuver enabled him to foreclose as moot any further challenge to his objectivity.25 This was not an isolated instance. In April 2002, Charlotte County, Florida also sought the recusal of Secretary Struhs for bias and prejudice, and the Secretarys immediate response was to deny the motion for disqualification and to issue the disputed permit.26 Former Secretary Struhs was also deeply involved in the drafting of a major NPDES permit for International Paper, and the announcement that he was leaving DEP to become a Vice President of this same corporation triggered an avalanche of negative publicity about FDEPs objectivity.27 In short, Floridas system of administrative review, which places the final decision and the right to overrule a challenger in the hands of the agency head who first approved the permit, renders public participation illusory. This is in conflict with EPAs rules, which are intended to promote effective and meaningful public participation and [to] minimize the possibility of unfair and inconsistent treatment of similarly situated people potentially affected by State permit decisions.28 VII. EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES AUTHORITY DESPITE BEING AWARE THAT FDEP HAS SYSTEMATICALLY FAILED TO ENFORCE NPDES PERMITS. A. FDEP Has Failed To Enforce Existing NPDES Permits, and Has Failed To Take Enforcement Action Against Persons Discharging Without an NPDES Permit.

In June of 1999 an Escambia County Special Grand Jury issued a report documenting the severe lack of water quality protection in the county. The report found that water quality was degraded as a result of discharges from pulp and paper manufacturers, chemical factories, and sewage treatment plants, and that [t]he (DEP Regional) Director, and others acting in his behalf, failed to enforce environmental laws in many ways.29 The Report states: We find that the often continued operation, without limitation, of major sources of pollution, in violation of air and water quality standards, is a failure of state law and the
25 26

Id. Charlotte County, Florida v. IMC Phosphates Company, et al., Case No. 1D02-1288. 27 See Attachment E, news reports and editorials regarding Secretary Struhs departure. 28 See Amendment to Requirements for Authorized State Permit Programs under Section 402 of the Clean Water Act, 61 FR 20971 (May 8, 1996). 29 Report of the Special Grand Jury on Air and Water Quality, in the Circuit Court of the First Judicial Circuit In and For Escambia County, Florida, to the Honorable Judges of the Court, June 10, 1999, at 80.

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DEP to implement pollution control programs properly, as required by the Clean Air and Clean Water Acts.30 The Grand Jurors found that Floridas actions removing civil service protections from career enforcement officials resulted in the dismissal of numerous employees who handled enforcement matters for DEP. They cited [m]any instances in which employees were told by the Director [or staff] to grant permits or refrain from taking enforcement action contrary to the recommendations of their staff, or their own professional judgment.31 The Grand Jury also found that monitoring was left largely to citizen volunteers,32 and that compliance monitoring does not provide necessary information about the areas water quality.33 Perhaps most telling for Floridas NPDES program, the Grand Jury found: The ineffectiveness of DEPs permitting, monitoring, enforcement and restoration efforts in part reflect problems with state law, and in part stem from flaws in the agencys policies. The objectives of federal and state laws differ The federal objectives, particularly those of the Clean Water Act, are to stop all discharges into surface waters and to restore them to their natural state. State objectives, however, allow for discharges into surface waters, provided the waters are suitable for their designated uses, without any end goal such as restoring the resource in its integrity. 34 EPA knew of the Grand Jury report (which generated massive press coverage throughout the state). A former DEP enforcement lawyer, who provided a copy directly to then-Administrator Browner in October 2000, attested to its accuracy and urged EPA to take action. The EPA responded, in a letter dated November 27, 2000, that it was familiar with the controversies but would make its decision on how to act based upon objective measures of DEPs performance.35 EPAs own reviews of Floridas NPDES permitting program repeatedly highlight concerns about the numbers of expired permits, the failure to take enforcement action against those in Significant Noncompliance and the lack of enforcement in such areas as

30 31

Id. at 77. Id. at 86. One DEP employee, Clifford Rohlke, later petitioned Escambia County for protection from retaliation for a witness who testified before a grand jury when, following his testimony before a Grand Jury investigating environmental problems on a road building project, he became the subject of an internal investigation by the Office of Inspector General. 32 Id. at 78. 33 Id. at 79. 34 Id. at 82. 35 Letter from Phyllis Harris, EPA Region IV Regional Counsel and Director, Environmental Accountability Division, to Richard Windsor (in response to his correspondence with Carol Browner, Administrator of EPA) , November 27, 2002.

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municipal stormwater.36 Yet to date EPA has taken no action to bring Floridas program into compliance. Reports by third parties also have repeatedly criticized the level of oversight and enforcement given to NPDES permittees in Florida. The most recent, by Public Employees for Environmental Responsibility, was published only this month.37 B. EPA Has Failed To Take Enforcement Action Itself In Florida Despite FDEPs Inaction. State enforcement of the CWA also is subject to federal oversight and intercession in the event the state fails to carry out its responsibilities. Section 309(a)(2) of the CWA provides that [w]henever, on the basis of any information available to him, the Administrator finds that violations of permit conditions or limitations are so widespread that such violations appear to result from failure of the State to enforce such permit conditions or limitations, he shall so notify the State. If the Administrator finds such failure extends beyond the thirtieth day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the administrator that it will enforce such conditions and limitations , except where an extension has been granted the Administrator shall enforce any permit condition or limitation As discussed above, the Administrator is aware that there are widespread violations of permit limitations and conditions in Florida, and that FDEP has failed to enforce such permit limitations, but the Administrator has failed to carry out his non-discretionary duty to give notice to the State of these failures or to begin federally assumed enforcement in Florida.38
36

See, e.g., EPAs own management reviews of Floridas program: Floridas Water Program: FY 2001 Mid-Year Review and Floridas Water Program: FY 2002 Midyear Review (both citing inadequate enforcement and untimely enforcement). 37 See PEER White Paper, Lets Make a Deal: Corporate Avoidance of Pollution Penalties in Florida (March 2004). See also Florida DEP Enforcement in Decline: An Overview, Florida PEER (August 2003); Dereliction of Duty: A Profile of the Northwest District of the Florida Department of Environmental Protection, Florida PEER (August 1997). 38 In addition to the materials discussed herein, the Administrator has available the following detailed sources of information regarding deficiencies in implementation and enforcement of monitoring, inspection, enforcement and permitting responsibilities, and EPAs deficiencies in providing the oversight required by law and regulation, in Florida and nationwide: a. More Consistency Needed Among EPA Regions in Approach to Enforcement, U.S. General Accounting Office, GAO/RCED-00-108 (June 2000). b. State Enforcement of Clean Water Act Dischargers Can Be More Effective, Office of Inspector General, U.S. EPA, Report No. 2001-P-00013 (August 2001). c. In Gross Violation: How Polluters are Flooding Americas Waterways with Toxic Chemicals, U.S. PIRG Education Fund (October 17, 2002). d. EPA should Take Further Steps to Address Funding Shortfalls and Time Slippages in Permit Compliance System Modernization Efforts, Memorandum Report, U.S. EPA Office of Inspector General, Report No. 2003-M-00014 (May 20, 2003).

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VIII.

EPA HAS FAILED TO WITHDRAW FLORIDAS NPDES AUTHORITY DESPITE BEING AWARE OF ALL OF THE FOREGOING DEFICIENCIES

Through many different means, ranging from the federal governments own lawsuit, WQS disapprovals, reports, review of public documents, routine reviews of Floridas NPDES program and other means documented in this letter, the Administrator has before him the facts demonstrating that Floridas NPDES program does not meet the Acts requirements for retaining NPDES program delegation. In addition, at least three letters requesting EPA action on these deficiencies, which constructively constitute petitions for withdrawal of Floridas NPDES program authority, have been submitted to the EPA over the past several years and have not resulted in agency action to address the deficiencies noted.39 EPA cannot ignore clear and obvious evidence that a state is failing to carry out required elements of its NPDES program and elect not to make a determination or finding of non-performance. See Save the Valley v. U.S. E.P.A., 99 F.Supp.2d 981, 985 (S.D. Ind. 2000). That finding or determination, which cannot be evaded simply by turning a blind eye to the states non- performance, in turn triggers a duty to notify the state of the deficiencies identified, and, if the state fails to take action within ninety days, to withdraw delegated program responsibility.40 EPA is aware of the significant deficiencies and failures of performance by Florida, and has failed to act in a timely manner either to notify the state, or to take corrective action to withdraw approval of the program. This notice of intent to sue may be treated as the fourth petition for Agency action to withdraw Floridas NPDES delegation, and/or a request to hold a hearing under Section 402(c)(3) of the Act. If you have not acted to grant this petition within 60 days, we will consider your failure to act as a constructive denial. We are willing to meet to discuss means for resolving the concerns raised herein. Please contact us if you would like to confer prior to our filing suit. Sincerely, _____________________ David Bookbinder Senior Attorney Sierra Club
39

Letter from Richard Windsor to Administrator Browner, October 2000, discussed infra; Letter from Linda Young to EPA Regional Administrator Jimmy Palmer, February 5, 2003 (Attachment E) Letters from NRDC to Water Division Director James Grattina, January and February 2004 (Attachment A). 40 CWA Sec. 402(c)(3). See also 40 CFR 123.63 and 123.64.

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408 C Street, NE Washington, DC 20002 202-548-4598

______________________ Eric Huber Senior Attorney Sierra Club 2260 Baseline Road Suite 105 Boulder, CO 80302 303-449-5595, ext. 101 Cc: The Honorable John Ashcroft Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Jimmy Palmer Regional Administrator EPA Region 4 Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA 30303-3104 Colleen Castille Secretary Florida Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399

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