May 16, 1979
CITIZENS FOR A BETTER ENVIRONMENT, PETITIONER,
ENVIRONMENTAL PROTECTION AGENCY, DOUGLAS COSTLE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, AND GEORGE ALEXANDER, INDIVIDUALLY AND AS REGIONAL ADMINISTRATOR, REGION V, OF THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS
On Petition for Rehearing.
Before Swygert and Sprecher, Circuit Judges, and Grant, Senior District Judge.*fn1
On Petition for Rehearing.
SWYGERT, Circuit Judge.
In its brief to this court in Citizens for a Better Environment v. EPA, 596 F.2d 720 (7th Cir., 1979), the Environmental Protection Agency (EPA) stated:
Pursuant to Section 402(b) of the Act, 33 U.S.C. § 1342(b), a state NPDES permit program, in order to be approved by the Administrator, must contain adequate authority to satisfy nine criteria enumerated in Section 402(b)(1)-(b) (9). Detailing, supplementing and explaining these requirements are procedural, monitoring and enforcement guidelines established by EPA pursuant to Section 304(i)(2) of the Act. Those guidelines, 40 C.F.R. Part 124, and the elements of Section 402(b) Are the only Statutory and Regulatory requirements for state NPDES programs. Unless the Administrator determines that a state's proposed program does not satisfy these requirements, he must approve the program. Save the Bay, Inc. v. Administrator, 556 F.2d 1282, 1285 (5th Cir. 1977). (Emphasis added.)
Brief for Respondent, at p. 10. Now, in its motion for rehearing, EPA belatedly proffers regulations issued pursuant to section 101(e) of the Clean Water Act, 33 U.S.C. § 1251(e), 40 C.F.R. Part 105, which it contends satisfy EPA's statutory duty to promulgate regulations promoting public participation in state enforcement actions under the Act. Similarly, the State of Illinois appears for the first time in these proceedings, which are testing the validity of its own water pollution control program, and notes the existence of the regulations at 40 C.F.R. Part 105.*fn1
The regulations now offered by EPA and the State pay lip-service, at best, to the Congressional directive that EPA guidelines encourage public participation in state enforcement actions.*fn2 (This mandate is discussed at length in our opinion in Citizens for a Better Environment, supra.) Despite its verbiage, section (f), in effect, requires only that a state agency answer its telephone and listen and look into the complaints of a private citizen. There is no provision for the participation of a private citizen in the enforcement process itself. This provision is no more than a legalistic articulation of a common courtesy and hardly can be cited as satisfaction of the EPA's statutory duty to issue regulations promoting public participation in state enforcement. Similarly, section (g) states only that a state agency cannot conceal from the public information requested by a private citizen when that information is already of public record because it is part of a legal proceeding. This regulation merely states the obvious; there is no explanation how it will "encourage" public participation in the enforcement process. Interestingly, the requirement in section (g) that the EPA comply with already existing Justice Department regulations regarding public comment prior to the approval of consent decrees is expressly applicable only to the EPA and not to state agencies. And the remaining provisions of 40 C.F.R. Part 105 do nothing to mandate citizen participation in the state enforcement process. Thus, the regulations promulgated under section 101(e) of the Act, 33 U.S.C. § 1251(e), do not alter the conclusion reached in Citizens for a Better Environment, supra, and the motion for rehearing is denied.*fn3