Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 80 C 4563 & 80 C 6770 Milton I. Shadur, Judge.
Pell and Cudahy, Circuit Judges, and Campbell, Senior District Judge.*fn*
In this case, plaintiff-appellant William J. Scott brought suit against various defendants, complaining about the pollution of Lake Michigan which forced Chicago to close its beaches during the summer of 1980. These appeals concern the district court's dismissal of Scott's allegations against the United States Environmental Protection Agency (the "EPA").*fn1 Because we find that the district court erred when it dismissed certain of Scott's claims, we reverse the order of the district court in part and remand the case for further proceedings.
Section 505(a)(2) of the Clean Water Act (the "CWA"), 33 U.S.C. § 1365(a)(2), provides for citizen suits against the Administrator of the EPA "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."*fn2 Scott invoked this section as part of his attempt to combat the discharge of "raw and inadequately treated human fecal material" into Lake Michigan from the Hammond, Indiana are along the shoreline. Complaint para. 8.*fn3
Scott's complaint states two discrete grievances against the EPA. The first claim challenges the EPA's failure to prescribe a Total Maximum Daily Load ("TMDL") for discharge of pollutants into Lake Michigan.*fn4 The second claim alleges that the EPA and its administrator "are under a nondiscretionary duty to ensure that water quality standards adopted under the federal act 'protect the public health and welfare.'" Complaint para. 27a (quoting CWA § 303(c)(2), 33 U.S.C. § 1313(c)(2)). The latter duty is being violated, it is alleged, because there are no water quality criteria for hazardous viruses and there is an inadequate standard for hazardous pathogenic bacteria. Both of these biological pollutants are contained in fecal matter which is discharged into Lake Michigan.
II. Failure to Disapprove Water Quality Standards
Scott alleges in his complaint that the EPA has approved state water quality standards which fail to protect the public health. The first alleged failing is that there is no prescribed standard for viruses even though viruses are a health hazard. The other alleged shortcoming of the existing regulations is that the method of computing allowable concentrations of bacteria permits extremely high one-day discharges of bacteria into Lake Michigan. Scott alleges that failure to correct this situation is a violation of CWA § 303, 33 U.S.C. § 1313 (1976).
To understand fully the thrust of the allegations, we shall briefly review the statutory framework. CWA § 303(c) places the primary reliance for developing water quality standards on the states.*fn5 The EPA reviews a water quality standard promulgated by a State to ensure that it "protect[s] the public health or welfare, enhance[s] the quality of water and serve[s] the purposes of [the] Act." CWA § 303(c)(2), 33 U.S.C. § 1313(c)(2). If the Administrator determines that the state-submitted standard meets the requirements of the Act, he or she approves it and it becomes the state standard. If, however, the Administrator determines that the state standard is inconsistent with the Act, he or she must disapprove the standard and specify the changes necessary for compliance.*fn6 If a state does not make these specified changes, the Administrator is to issue a substitute standard. CWA § 303(c)(3), 33 U.S.C. § 1313(c)(3).
Water quality standards are not themselves directly enforced by the EPA. Rather, permits prescribing conditions are issued for individual sources of pollutants. CWA § 402, 33 U.S.C. § 1342. If the conditions of a permit are violated, the EPA may issue a compliance order or bring a civil action against the violator. CWA § 309, 33 U.S.C. § 1319.*fn7 As noted, Scott's complaint charges that CWA § 303, 33 U.S.C. § 1313, imposes upon the defendants a nondiscretionary duty "to ensure that water quality standards adopted under the federal Act protect the public health and welfare." Complaint para. 27(a). This duty has been violated, it is alleged, by the EPA's approval of an inadequate standard for bacteria and by the EPA's failure to require the adoption of a standard for viruses.
We believe, however, that the content of water quality standards cannot ordinarily be challenged through a citizen's suit. An administrator's duty to approve or promulgate some water quality standards might be "nondiscretionary" within the meaning of § 1365(a)(2), but the content of the standards is certainly at least somewhat discretionary with the EPA.*fn8 The only recognized avenue for challenge to the substance of EPA's actions taken with respect to state submissions is a suit for judicial review under the Administrative Procedure Act (the "APA"). United States Steel Corp. v. Train, 556 F.2d 822, 836-37 (7th Cir. 1977). Apparently recognizing this defect in his original mode of attack, Scott has on appeal abandoned his "nondiscretionary duty" theory and argues instead that his complaint "seeks judicial review of EPA's response to Illinois' and Indiana's water quality standard submittals." Brief for Appellant at 23.
While acknowledging the liberal rules of notice pleading in the federal courts, the defendants argue that we should not construe Scott's complaint as one for APA review of the EPA's approval of the state-submitted standards. The allegations against the EPA, which are at issue, are contained in Count III. That count is entitled "failure to perform nondiscretionary acts under the FWPCA [the Federal Water Pollution Control Act]." The defendants point out that every one of the allegations in Count III refer to failures to perform nondiscretionary acts. The only suggestion of a claim under the APA is a reference to the "Court's power under the Administrative Procedure Act to compel agency action unlawfully withheld." Complaint para. 30.
We agree with the defendants and with the district court that this complaint is insufficient to state a claim for judicial review of agency action. A complaint seeking judicial review would allege, for example, that some agency action was arbitrary, capricious or an abuse of discretion or that a factual finding by an agency was erroneous or not supported by substantial evidence. See APA, 5 U.S.C. § 706(2). The complaint before us does not inform the court or the parties as to what agency action is to be reviewed. We are not told whether a legal or factual error has been made or whether Scott seeks substantial evidence review or perhaps a trial de novo in the district court. The complaint is drafted as a citizen's suit to require ...