## Facts

- William J. Scott sued on behalf of himself and similarly situated persons, alleging serious pollution of Lake Michigan from discharges near Hammond, Indiana.
- Scott claimed the pollution included raw or inadequately treated human waste containing hazardous viruses and pathogenic bacteria and that it contributed to Chicago beach closures in summer 1980.
- Scott asserted claims against the EPA and the EPA Administrator under the Clean Water Act (CWA) citizen-suit provision, 33 U.S.C. § 1365(a)(2), which authorizes suit for failure to perform nondiscretionary duties.
- Scott alleged EPA failed to act under CWA § 303(d) because the states bordering Lake Michigan had not identified water-quality-limited segments or submitted total maximum daily loads (TMDLs) for the lake, and EPA acknowledged there were no TMDL submissions.
- Scott also alleged EPA failed to carry out duties under CWA § 303(c) by approving state water quality standards that allegedly did not protect public health because they lacked virus criteria and allowed very high one-day bacteria discharges.
- The district court dismissed the claims against EPA, concluding the alleged duties were discretionary or not enforceable through § 1365(a)(2).
- On appeal, Scott reframed his position as seeking review of EPA’s responses (or nonresponses) to state submissions or non-submissions under §§ 303(c) and 303(d).

## Issues

1. Whether prolonged state failure to submit TMDLs under CWA § 303(d) can be treated as a constructive submission of no TMDLs, triggering a nondiscretionary EPA duty enforceable under CWA § 1365(a)(2).
2. Whether EPA’s approval of state water quality standards under CWA § 303(c), despite alleged scientific deficiencies (virus criteria and bacteria limits), involves nondiscretionary duties enforceable through a § 1365(a)(2) citizen suit.
3. Whether, and to what extent, the claims could proceed as judicial review of EPA action or inaction, rather than an attempt to use § 1365(a)(2) to challenge discretionary agency judgments.

## Decision

- Reversed the dismissal of the § 303(d) TMDL claim and remanded for factual findings on whether the states’ prolonged inaction amounted to a refusal to act constituting a constructive submission of no TMDLs.
- Held that if a constructive submission existed, EPA would have a nondiscretionary duty to approve or disapprove it and, upon disapproval, to promulgate TMDLs.
- Affirmed the dismissal of the § 303(c) water quality standards claim, treating the challenged approval decisions as discretionary scientific and policy judgments outside § 1365(a)(2).

## Legal Principles

- CWA § 1365(a)(2) permits citizen suits against the EPA Administrator only for failure to perform clear, mandatory, ministerial duties; it does not authorize suits to challenge discretionary judgments.
- Under CWA § 303(d), extended state inaction may constitute a constructive submission of no TMDLs when it amounts to a refusal to act; that constructive submission can trigger mandatory EPA action (approval/disapproval and, if disapproved, federal promulgation).
- EPA’s evaluation and approval of state water quality standards under CWA § 303(c), including choices about scientific criteria and methods, generally involve discretion and are not enforceable as nondiscretionary duties via § 1365(a)(2).

## Conclusion

The Seventh Circuit allowed a citizen suit to proceed against EPA only to the extent it alleged a nondiscretionary duty triggered by a constructive submission of no TMDLs under CWA § 303(d), while rejecting a citizen-suit challenge to EPA’s approval of state water quality standards under § 303(c) as an attack on discretionary agency judgment.


Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984)