UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 18A
Date Signed: August 10, 1979
MEMORANDUM
SUBJECT: Methods of Preventing States from Using Illegal Variances
FROM: William Walsh, Attorney Advisor (signed by William Walsh)
Enforcement Division, Office of Enforcement (EN-338)
Lorraine Chang, Attorney Advisor (signed by Lorraine Chang)
Water and Solid Waste Division, Office of General Counsel (A-131)
TO: Deputy Assistant Administrator for Drinking Water (WH-550) (signed)
Deputy Assistant Administrator for Water Enforcement
(EN-335) (signed)
THRU: Acting Chief of Special Enforcement Section (EN-338)
Director, Enforcement Division (EN-338)
I. Introduction
Several primacy States within the Public Water System Supervision, e.g. Texas, Virginia,
et al., either have or are planning to issue variances to water supply systems under circumstances
clearly prohibited by the Safe Drinking Water Act (SOW Act), 42 USC §300f et seq. Variances
were intended to be applied to water supply systems where the source of water was so poor that it
could not meet the MCLs even after using the best available treatment technology. (See
Attachment - Memorandum from General Counsel to Deputy Assistant Administrator for
Drinking Water (May 21, 1979), and EPA's Guidance for the Issuance of Variances and
Exemptions (1979) for detaileddiscussion of variances and exemptions.)
The States in question are issuing variances from MCLs, even though the MCLs can be
met by the application of the best available treatment technology specified by the Agency. The
suppliers, however, either simply cannot afford such a system, or could literally afford it, but
have placed a higher priority on other public health needs. Congress has recently reiterated its
intention that variances not be used in such situations. (See Attachment B: Report on Safe
Drinking Water Act Authorizations, H.R. Rep. No. 96-186, 96th Cong., 1st Sess. 7n.4 (1979).)
Clearly, these States have misinterpreted the law. The Office of Drinking Water has repeatedly
and vigorously moved to correct these misinterpretations. Recently Mr. Kimm, the Deputy
Assistant Administrator for Drinking Water, sent a memorandum to the Regions on this matter
(see Attachment C).
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Mr. Kimm has also asked us to analyze the range of potential enforcement responses to
these erroneous State actions. The Agency may:
1. Do nothing and risk a disintegration of statutory framework and a total perversion
of the intent of Congress.
2. Institute an administrative action against the States under §1413 (a) (4) of the
SOW Act and 40 CFR §§142.12-142.13 (40 CFR 142.17 -- renumbered Primacy
Rule 12/89) to withdraw primacy from the State for its abuse of discretion.
3. Institute enforcement actions directly against the water supply systems with
erroneous variances under §§1414(a)(l) and 1414(b).
4. Institute an administrative action against the State under § 1415(a)(l)(G) for its
abuse of discretion. The Administrator, after the required notice and hearings,
would promulgate variance revocations. 40 CFR §§142.23—142.24 or
5. Institute a civil action against the States under the Declaratory Judgment Act, 28
U.S.C. §§2201-02, declaring all the variances at issue null and void; interpreting
the variance provision; and possibly ordering the State to rescind the variances at
issue.
Alternative 1, do nothing, has been totally rejected by the Office of Drinking Water and
Enforcement in this case because of the serious effects that such continued misinterpretation of
the statute would have on the program. As a general principle, EPA cannot countenance actions
by a State that are not in conformity with the law. Furthermore, issuing variances where
exemptions are authorized runs counter to the statutory scheme created by Congress. Congress
intended that water supply systems be placed on schedules with a firm deadline (January 1,
1981). This deadline was included in the Act to pressure water supplies to achieve compliance in
the shortest possible time. Therefore, the result of granting these impermissible variances will be
a delay in achieving compliance and a concomitant subversion of the will of Congress.
Seeking to withdraw primacy, alternative 2, is unacceptable also. Given the nature of the
problem, i.e., the State's misinterpretation of the law, the remedy seems clearly excessive as a
first step. Withdrawal of primacy would also be disruptive to the State's drinking water program
because of the loss of Federal funds and place a severe strain on the working relationship
between EPA and the State.
Alternatives 3 and 4, enforcing against each individual water supplier or initiating an
administrative proceeding to rescind each variance, are too personnel and time consumptive. In
either case, separate actions would be required at least in each State and against each water
supplier. The wise use of the Agency s resources dictates other solutions be used.
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Filing a declaratory judgment suite (Alternative 5) seems to be the preferred course of
action. The remedy available from a declaratory judgment action precisely fits the Agency's need,
i.e. the variances in the State in which it is brought will be void and there will be a judicial
interpretation of the variance provision that will set precedent that all States must follow.
Additionally, the Agency, giving the States the benefit of the doubt, prefers to assert that
the States involved have simply misinterpreted the law and not that they have abused their
discretion. Since a declaratory judgment action is confined to questions of law, not discretion, the
problems of proof will be less and a State will have an even more difficult time raising the
"unreasonableness" of an MCL as a defense or mitigating factor. Finally, under Rule 57 of the
Federal Rules of Civil Procedure an expedited hearing of a declaratory judgment action is
available. For the reasons cited above, it is recommended that if a State refuses to rescind
voluntarily the variances in question, the Agency should bring a declaratory relief action against
one offending State.
in. Declaratory Judgement Action
The following describes the basic elements of a declaratory judgment action and how it
applies to the variance problem.
The Declaratory Judgment Act, 8 U.S.C. §2201, provides that
[i]n a case of actual controversy within its jurisdiction . . ., any court of
the United States upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such. (Emphasis
added.)
The Agency could seek an order requiring the State to rescind the variances at issue under
28 USC §2202 which provides that:
[fjurther necessary or proper relief based on a declaratory judgement
of decree maybe granted after reasonable notice and hearing against
any adverse party whose rights have been determined by such
judgments.
Rule 57 of the Federal Rules of Civil Procedure repeats the statutory requirements and provides
for a speedy hearing, i.e.
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The procedure for obtaining a declaratory judgment pursuant to Title U.S.C.
§2201, shall be in accordance with these rules, and the right
to trial by jury may be demanded under the circumstances and in the
manner provided by Rules 38 and 39. The existence of another
adequate remedy does not preclude a judgment for declaratory relief in
cases where it is appropriate. The court may order a speedy hearing of
an action for a declaratory judgment and may advance it on the calendar.
(Emphasis added.)
Additionally, because there will be no material issues of fact in dispute, only legal
issues,2/ a motion for a summary judgment under Rule 56 of the Federal Rules of Civil Procedure
would also be appropriate. This motion, if successful, would substantially shorten the time
between the filing of the action and the receipt of a judicial opinion.
The essential questions at issue in a declaratory judgment action in this case are:
1. Whether the United States may bring such an action;
2. Whether there is an actual controversy in this case;
3. Why the court should exercise its discretion in this case; and
4. What is the relief desired.
The United States can bring an action under the Declaratory Judgment Act, even against a
State. Public Utilities Comm'n of State of California v. United States. 355 U.S. 534 (1958);
United States v. Pennsylvania Environmental Hear. Bd.. 377 F.Supp. 545, 548 (M.D. Penn.
1974).
One test of whether there is an actual controversy is that:
[t]he controversy must be definite and concrete, touching the legal
relations of the parties having adverse legal interest. It must be a real
and substantial controversy admitting of specific relief through a decree
of a conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts. (Emphasis
added.)
AETNA Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S.
277, 240-41 (1937).
In the case of the disputed variances, there is an actual controversy. This case presents a
classical declaratory judgment issue, i.e., a dispute over a statute's meaning. The State and water
suppliers hold that the variances are lawful and issued in accordance with the Safe Drinking
Water Act and the United States argues that the variances are unlawful and totally prohibited in
these cases. There is not a hypothetical state of facts, but the facts of each water suppliers'
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variance. The record will contain the undisputed facts and copies of the variances. The relief in
this case is specific, i.e., a declaration that the variances are void and unlawful, plus an order to
the State to rescind the variances. The parties in a variance case have adverse legal interest,
particularly if the water suppliers are joined as parties. There are sanctions that EPA can bring
against the State for its action and EPA will be hampered in any enforcement action by the
variances issued by the State. If the variances are declared void, the water suppliers are liable in
citizen suits or enforcement actions. Finally, the United States has a legal responsibility under the
Safe Drinking Water Act to ensure that the States are properly implementing the Act and that
suppliers are complying with the Act's requirements.
The granting of a declaratory judgement is within the discretion of the court. See 6A
Moore's Federal Practice §57.08; Brillant v. Excess Inc. Co. 316 U.S. 491, 494 (1942). In
deciding whether to grant a declaratory judgment courts consider the likelihood that the relief
requested will resolve the controversy, the convenience of the parties, the public interest, and the
relative convenience of other remedies. Bituminous Coal Operator's Ass'n, Inc. v. International
Union. United Mine Workers of America. 585 F.2d. 587 (3rd Cir., 1978). All these factors in our
case argue in favor of the court exercising its discretion. Given the strong judicial and public
interest in protecting the public health, the fact that this action is the least intrusive into the
State's program, the convenience to all parties of resolving the issues immediately and in one
action, the long history of attempting to obtain voluntary rescissions, and the importance of a
decision to the integrity of the Safe Drinking Water Act program, the district court should have
no hesitation in exercising its discretion in this case.
As mentioned earlier, it would probably be wise to join as parties all the water suppliers
who have been issued the variances at issue. Given the nature of their interest in the outcome,
they may be necessary parties.
Conclusion
In sum of the methods for proceeding against the States who have issued unlawful
variances, a declaratory judgment action seems most suited to EPA's needs. The facts of this
situation fit clearly within the traditional pattern of a declaratory judgment case. Given the strong
legal position the Agency has, the speed with which such an action can be brought, and the other
practical advantages, this alternative is highly preferred, if it becomes necessary to go to court
against a State.
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FOOTNOTES
I/ Neither cost nor the technical feasibility of meeting a particular MCL can be factual
issues in a declaratory judgment proceeding. Those factors will have already been taken
into consideration in determining the best technology treatment techniques. Section
1415(a)(l)(A). See 40 CFR §142.40. See EPA, Manual of Treatment Techniques for
meeting the Interim Primary Drinking Water Regulations (1977). Also, only the
Administrator, and not States, can make this determination. The determination is a
uniform national decision and not a case-bycase decision. Section 1415 (a)(l)(A). As a
practical matter this problem has arisen primarily with regard to variances from fluoride
MCLs. There is no realistic impossibility argument, only an argument that, given the
economic situation of the small water supplier, the expense is too great. In Getty Oil Co.
v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir., 1972), the court held that a polluter could not
use the Declaratory Judgment Act to challenge "whether the regulation is unnecessary,
unreasonable, or capricious,.." because the statute (the Clean Air Act) specifically
designated a mechanism for judicial review of such matters. Since the polluter had not
challenged the underlying regulations he could not challenge them in a declaratory
judgement action. The Safe Drinking Water Act's judicial review provision is derived
from the Clean Air Act. 120 Cong. Rec. §20243 (daily ed. Nov. 26, 1974). It too provides
a specific method of challenging the unreasonableness of the regulations. Section 1448.
Although not dispositive of the issue, this case supports the view that a district court
should not review the reasonableness of the MCL in a declaratory judgment action.
Finally, a motion for partial summary judgment can always be made on the legal issues
alone, if the court decides that there are factual issues.
2/ The courts have held that a declaratory judgment "is not to be declined merely because of
the existence of another remedy. . ." Yellow Cab Co. v. City of Chicago 186 F.2d 946,
950 (7th Cir., 1951). The plain language of 28 USC §2201 and Rule 57 of the Rules of
Civil Procedure, quoted in the text, above, specifically state that other adequate remedies
do not preclude a declaratory judgment. The administrative remedy provided in
§1415(a)(l)(C) need not to be exhausted before a declaratory judgment is issued because
the result of the administrative proceeding leaves the legal issue unresolved and only
attaches the questions to a particular litigant. See Public Utilities Comm'n of the State of
California v. United States, 355 U.S. 532, 539-40 (1958). Furthermore, the doctrine of
exhaustion of remedies usually applies to a person who has failed to pursue his legal
rights before an Agency, not against an Agency.
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