# Petition for Writ of Certiorari — Simkins Industries, Inc. v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0307%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 992 ## Text preme Court, US, | EILED CCT 20 1988 YOSEPH E SPANIOL! : CLERK —_ IN THE Supreme Court of the United States OCTOBER TERM, 1988 > } ri LESPOUIUe!l PETITION FOR WRIT OF CERTIORARI FOR THE FOURTH CIRCUIT DAVID F.. ALBRIGH TO THE UNITED STATES COURT OF APPEALS T HARLEY THOMAS HOWELL * SEMMES, BOWEN & SEMMES 250 W. Pratt Street Baltimore, MD (301) 5389-5040 *x ¢ 21201 Counsel of Record Counsel for Petitione? WILSON - EPES PRINTING Ci IN 789-0096 - WASHIN 20001 QUESTIONS PRESENTED 1. Does $505 of the Clean Water Act abridge the Article III standing requirement of “redressability” by authorizing private citizens to seek a judicial award of penalties to the United States Treasury? 2. In reviewing a summary judgment rendered in direct conflict with Gwaltney of Smithfield v. Chesapeake Bay Foundation, Ine., 484 U.S. 108 S.Ct. 376 (1987), did the Court of Appeals err by finding a con- tinuing violation of the Clean Water Act never charged by complaint or motion and negated by the unchallenged findings of fact? [Note: Petitioner reserves the right to argue Question 3 in the event certiorari is granted on both the above ques- tions, but does not include Question 3 among the reasons for the grant of certiorari. | 3. Did the court below err in holding that the failure to file discharge-monitoring reports, without more, con- stitutes the violation of “an effluent standard or limita- tion”—the jurisdictional requisite of a citizen suit under $ 505(a) of the Clean Water Act? (i) ce mmm cmc cea accesses il PARTIES TO THE PROCEEDINGS Petitioner and defendant-appellant below, Simkins In- dustries, Inc., has no parent companies, subsidiaries, or affiliates to list pursuant to Rule 28.1. Respondent and plaintiff-appellee below is the Sierra Club. TABLE OF CONTENTS SOE oy tg 4 8d, Yo) |) PARTIES TO THE PROCEEDINGS ............................ py fF Ee EN ty Gt | yy | > a ca Re ELE TE Se a is so sraatacavccsasked onsbnousaianchaecsonsaceeisores PERTINENT STATUTORY PROVISION ..................... STATEMENT UNDER RULE 238.4 (b) pe ee 4 ba he gy yi at ee): aa Er. A. District Court Proceedings .................................. B. Court of Appeals Proceedings REASONS FOR GRANTING THE WRIT I. Section 505 of the Clean Water Act Abridges the Article III Requirement of “Redressability” By Authorizing Private Citizens to Seek a Judicial Award of Penalties to the United States SRE he Gr II. In Its Review of a Summary Judgment Rendered in Direct Conflict With this Court’s Decision in Gwaltney, the Court of Appeals Erred by Find- ing a Continuing Violation of the Act Never Charged by Complaint or Motion and Negated by the Unchallenged Findings of Fact CONCLUSION . (iii) ~] 10 iv TABLE OF CONTENTS—Continued APPENDICES: Appendix A: Appendix B: Appendix C: Appendix D: Appendix E: bes 4 Appendix Apperdix G: Opinion of the Court of Appeals, May 31, 1988 Opinion of the District Court, June Be Ee ve ees Opinion of the District Court, July 31, 1986 Opinion of the District Court, March 16, 1987 Judgment of Court of Appeals, WN Gs WOE ieee Order of Court of Appeals Denying Petition for Rehearing, July 27, 42a ae) Noa 68a 69a Tla Vv TABLE OF AUTHORITIES Cases Page Allen v. Wright, 468 U.S. 737 (1984) ............. 10, 14 Amadeo v. Zant, 108 S.Ct. 1771 (1988)... 24, 28 Anderson v. Bessemer City, 470 U.S. 564 (1985)... 25 Ashcroft v. Mattis, 431 U.S. 171 (1977) ................ 19 Atlantic States Legal Foundation v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D. Ala. 1988) ............. 25 Bender v. Williamsport Area School Dist., 475 tee: GE CIGOE) oc eee 16, 22 Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440 (D. Md. 1985)... 13 Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir. 1986), vacated 484 U.S . , 108 S.Ct. 376 (1987)... 8,17 Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170 (4th Cir. 1988) .. 27-28 Deakins v. Monaghan, 108 S.Ct. 523 (1988) _......... 16 Diamond v. Charles, 476 U.S. 54 (1986) 18, 19 Duke Power Co. v. Carolina Envir'l Study Group, ine., 408 U3. G GSTS)... 3 Se 11 Environmental Protection Agency v. California, 426 US. 200 (1906) ..he ee 9 Fountain v. Filson, 336 U.S. 681 (1949) 23 Friends of the Earth v. Eastman Kodak Co., 656 F. Supp. 513 (W.D.N.Y. 1987) ................... Ee 14 Gladstone Realtors v. Village of Bellwood, 441 U.S. OF (lS)... eee 15 Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. DIE B sbiccssncsincumiecs tel necke cha ee sett Pet 14 Gwaltney of Smithfield v. Chesapeake Bay Foun- dation, Inc., 484 U.S. ——, 108 S.Ct. 376 CREEP occ nee 9, 12, 15, 19-25, 27 Hamker v. Diamond Shamrock Chemical Co.. 756 ¥.20 302 (0th Cis, 1968) 27 Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 | EOD a cininsstnmtssesovesneaoudag see ne 25-26 John Deere Co. v. American Nat. Bank, 809 F.2d Rie (00m Cot, 20 eee Zo Leeke v. Timmerman, 424 U.S. 83 (1981) ............. 19 Linda R.S. v. Richard D., 410 U.S. 614 (1973)... 16, 18 vi TABLE OF AUTHORITIES—Continued McBi de v. Merre ll Dow & Pharmaceut cals, inc., 800 F.2d 1208 (D.C. Cir. 1986) 2 Meese v. Keene, 107 S.Ct. 1862 (1987) 10 Menzel v. County Util. Corp., 712 F.2d 91 (4th Cir. 1983) 9 Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 (1981) 11,12 Pullman-Standard v. Swint, 456 U.S. 273 (1982). 26, 28 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) 2 Safir v. Dole, 718 F.2d 475 (D.C. Cir. 1983) 19 Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir. 1987) 12-1 Sierra Club v. Morton, 405 U.S. 717 (1972) 1] Sierra Club v. Shell Oil Co., 817 F.2d 1169 (5th Cir. 1987) 9 Sierra Club v. Union Oil ¢ ‘o. of Californ la, 8538 F.2d 667 (9th Cir. 1988) 20, 27, 28 Simon v. Easton Kentucky Welfare Rights Ora.., 126 U.S. 26 (1976) ¥6 11,18 St id nt P thlie Inte rest Re search Group, Ine. Vv. AT & T Bell Laboratories, 617 F. Supp. 1190 (D.N.J. 1985) 17-18 Student Public Interest Research Group of New Jersey, Inc. v. A.T. & T. Bell Laboratories, 6423 F. Supp. (D. N.J. 1986), modified and re- manded, 842 F.2d 1436 (3rd. Cir. 1988) 17 Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883 (1984) 18-19 Toussie v. United States, 397 U.S. 112 (1970) 2 Tull v. United States, 107 S.Ct. 1831 (1987) 23 Vall Y For ge Christian Colle ge vu. Americans United For Separation of Church and State. 154 U.S. 464 (1982) Warth v. Selden, 422 U.S. 490 (1975) 11,18 White v. New Hampshire Dept. of Empl. Sec.. 155 U.S. 445 (1982) 19 Williams City of St. I 785 F.2d 114 (&th Cir. 1986) vii TABLE OF AUTHORITIES—Continued Constitutional and Statutory Materials Page Article III, Constitution of the United States 5-6, 7-8, ~ fo » one @ cece o ‘3 Th | va ecacaaacc TD AC” 4 — 4 iN 2) D a nn ni OOO 02 ¢ aaac Nnnn QAA-AAA lana 4 \ 2: SBHOWwW WwW wWwWwWWWWwWwWWWHN DD KX mo wWwWw WwW WWW WW WW WwW © t-te dada Tn tn AT ho bo C ( »rqQQqqaqaaAxa Crum SRR mm HH Cr wr UM Mm wn Um Cr UN nr unr wm wm 451 Do (e) 1254(1) .... 2403 (a) 1318 1319 (a) 1342 1362 (11) 1365. 1365 (a) 1365 (a) ( 1) 10-19, 27 0 DD & wo 1365 (b) (1) (A) : 1 1365 (b) (1) (B) 18 1365 (c) (3) 1365 (f) (6) ... 1365 (zg) 1515(b) (1) (B) shen 18 | BROMO. 6972 (a) (2) 9659 (c) ......... yislative Materials 1 A LEGISLATIVE HISTORY OF THE WATER POLLU- TION in 1972 U.S. CopE Conc. & AD. NEWS 3668 12 CONTROL ACT AMENDMENTS OF 1972 12 Supreme Court Rule 28.4(b) __.. 3 Federal Rules of Civil Procedure: Rule 11 Rule 52 (a) Vill TABLE OF AUTHORITIES—Continued Other Authorities Page Austin, The Rise of Citizen-Suit Enforcement in Environmental Law: Reconciling Private and Public Attorneys General, 81 NORTHWESTERN U.L. REv. 220 (1987) Boyer & Meidinger, Privatizing Regulatery En- forcement: A Preliminar y Assessment of Citi- zens Suits Under Federal Environme ntal Laws, 34 BUFFALO L. REV. 833 (1985) ; eee + Brief for the United States as Amicus Curiae in Gwaltney of Smithfield v. Che sapeakss Ba Found, Inc., No. 473 (Oct. Term. 1986) 15-16 Fodil, Citizen Suits Against Polluters: Picking Up the Pace, 9 Harv. Envtut. L. Rev. 23 (1985) : Lewis, Environmentalists’ Authority To Sue In- dustry For Civil Penalties, 16 ENvTL. L. REP. 10101 (1986) Mckinney, Statute of Limitations for Citizen Suits Under the Clean Water Act, 72 CORNELL L. REV. 195 (1986) 12 Schwartz v. Hackett, Citizens Suits Against Pri- vate Industry Under the Clean Water Act. 17 NAT. RESOURCES LAW. 327 (1984) 9, 11, 12, 1 Thompson, Citizen Suits and Civil Penalties Under the Clean Water Act, 85 MicH. L. REv. 1656 (1987) on , Ei, ie be IN THE Sigtreme Court of the United States OCTOBER TERM, 1988 — No. SIMKINS INDUSTRIES, INC., Petitioner v. SIERRA CLUB, = Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner, Simkins Industries, Inc., respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Fourth Circuit, entered in the above-entitled proceed- ing on May 31, 1988. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourth Circuit is reported at 847 F.2d 1109 and is reprinted in the appendix hereto (“App.”) at la. The opinion of the United States District Court for the District of Maryland (Murray, J.), entering sum- mary judgment against the Petitioner on issues of lia- bility, is reported at 617 F.Supp. 1120 and is reprinted at App. la. The opinion of the District Court, assessing a $977,000 civil penalty agairst Petitioner, is reported at 17 Envt’l. L. Rptr. 20346 and is reprinted at App. 42a. The unreported opinion of the District Court deny- ing subsequent motions is reprinted at App. 58a. 2 JURISDICTION Respondent Sierra Club brought suit in the District Court alleging jurisdiction under Section 505(a) of the Clean Water Act, 33 U.S.C. § 13865(a). Petitioner filed a motion for judgment on the pleadings based on lack of subject-matter jurisdiction, which was denied by the District Court on June 18, 1985. App. 41a. The District Court then entered partial summary judgment against Petitioner and on July 31, 1986, assessed $977,000 in civil penalties against Petitioner. App. 57a. Petitioner appealed. The Court of Appeals affirmed on May 31, 1988. App. 17a, 68a. A timely-filed petition for rehearing was denied on July 27, 1988. App. 69a. The jurisdiction of this Court to review the judgment of the Fourth Circuit is invoked under 28 U.S.C. § 1254(1). PERTINENT STATUTORY PROVISION Section 505 of the Clean Water Act, 33 U.S.C. § 1365, provides in pertinent part: $1365. Citizen sutts: (a) Authorization; jurisdiction Except as provided in subsection (b) of this sec- tion, any citizen may commence a civil action on his own behalf— (1) against any person * * * who is alleged to be in violation of (A) an effluent standard or limita- tion under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is al- leged a failure of the Administrator to perform any act or duty under this chapter which is not discre- tionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizen- 3 ship of the parties, to enforce such an effluent stand- ard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil pen- alties under section 1319(d) of this title. (g) Citizen For the purposes of this section, the term “citi- zen” means a person or persons having an interest which is or may be adversely affected. STATEMENT UNDER RULE 28.4(b) Because the proceeding draws into question the con- stitutionality of Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), an Act of Congress affecting the public interest, and neither the United States nor any agency, officer, or employee thereof is a party, it is noted that 28 U.S.C. § 2403(a) may be applicable. While this case was pending on appeal, the United States sought to intervene but its application was denied by the Fourth Circuit. App. 2a-3a n.1. No court of the United States as defined by 28 U.S.C. § 451 has, pursu- ant to 28 U.S.C. § 2403(a), certified to the Attorney General the fact that the constitutionality of such Act of Congress has been drawn in question. STATEMENT OF THE CASE Petitioner, Simkins Industries, Inc. (‘‘Simkins’’), oper- ates a paper mill in Catonsville, Maryland, manufactur- ing paperboard from recycled waste paper. App. 46a. The Maryland State Department of Health and Mental Hygiene issued Simkins a permit under the Clean Water Act, 33 U.S.C. $ 1342, authorizing it to discharge specific effluents into the adjacent Patapsco River. The permit required Simkins to monitor three outfalls at its plant at monthly intervals. The monitoring results were to be summarized quarterly in a Discharge-Monitoring Report 4 (“DMR”) submitted to the Department no later than 28 days following the end of each calendar quarter. Ct. App. Joint Appendix (“J.A.”) at 21. On August 31, 1984, Sierra Club mailed Simkins a letter (App. 76a) pursuant to 33 U.S.C. § 1365(b) (1) (A), requiring 60 days prior notice as a precondition to filing a citizen suit under § 1365(a)(1). The letter stated that Sierra Club had reason to “believe” that Sim- kins “has violated and continues to violate” its permit by failing to file any DMRs from August 1, 1981, to March 31, 1984. App. 76a-78a. Simkins’ prompt responses to the letter were summar- ized in findings of fact by the District Court (App. 46a- 53a). On August 29, 1984, two days before Sierra Club mailed notice, Simkins directed its officials to comply with its permit monitoring and requirements. On September 4, 1984, Simkins retained outside chemists to perform the required monitoring and to file the quarterly DMRs in compliance with its permit. App. 50a-5la. The District Court also found that, after conducting monthly tests on September 30, 1984, and filing DMRs on October 1, 1984, Simkins has continued ever since to file the quarterly DMRs required by its permit (App. 51a). A. District Court Proceedings On October 31, 1984, after 60 days had expired, Sierra Club filed a citizen suit against Simkins in the District Court. Its complaint invoked jurisdiction under § 505(a) of the Clean Water Act, 33 U.S.C. § 1865(a). App. Tla. Sierra Club identified itself as a California-based conservation organization with members residing near the Patapseco River whose recreational interests were “adversely affected” by Simkins’ permit violations (App. 73a). The complaint alleged: “Defendant has violated the waste water discharge limits contained in its NPDES permit, as set forth in a letter to the Defendant dated August 31, 1984, attached hereto as Exhibit A and in- 5 corporated by reference herein.” App. 74a (italics added). In contrast to the August letter, the complaint did not allege that Simkins was continuing to violate its permit or that Simkins had failed to comply since receipt of the notice. By way of relief, the complaint requested an order to declare Simkins ‘“‘to have violated” the Clean Water Act, enjoin Simkins from “further violation” of its permit, and direct it to pay civil penalties of $10,000 per day of violation. App. 74a-75a. In addition, Sierra Club sought attorney’s fees, expenses, and costs (App. 75a). Simkins moved for judgment on the pleadings. Its motion challenged the Article III standing of Sierra Club to bring a citizens suit for penalties and objected to the failure of the complaint to state a violation of an “efflu- ent standard or limitation” in the Simkins permit, as § 505 requires (J.A. 33). Supported by DMRs filed by Simkins, the motion contended that Simkins was in pres- ent compliance with its permit and could not be sued under § 505 for wholly past violations (J.A. 33, 34). Sierra Club moved for partial summary judgment on the sole ground that it was undisputed that Simkins “has violated” its permit by failing to file DMRs in the past (J.A. 68, 84). During argument on the motions (J.A. 85), Sierra Club proffered the affidavit of its member, John Railey, attesting to his “interest in monitoring the discharge of effluents into the Patapsco River.” J.A. 112. On June 18, 1985, the District Court rejected Simkins’ contentions and granted summary judgment for Sierra Club as to liability. App. 40a-41a. In an opinion by Judge Murray,’ the Court held that Sierra Club acquired Ar- 1 During a conference in chambers, Judge Murray disclosed to counsel his former membership in the Sierra Club and offered to recuse himself and transfer the case to another judge if any litigant was concerned (J.A. 333, 338, 341). These disclosures 6 ticle III standing demonstrating “that the interest of [its] members may be adversely affected by defendant’s noncompliance with its permit requirements.” App. 38a. Second, the Court ruled that Sierra Club “may maintain an action against defendant for past violations even if defendant now complies with the terms of its NPDES permit.” App. 39a. It held “that civil penalties may be recovered in citizen suits for past violations” and treated Simkins’ present compliance as “irrelevant to plaintiff’s cause of action.” App. 39a. Finally, Simkins’ admitted failure to file DMR’s was held to constitute a violation within the purview of § 505. App. 41a.” Having decided Simkins’ liability for its past violations of the DMR provision of its permit, the District Court held a bench trial limited to the amount of civil penalties to be assessed. App. 42a. In its written submission, Sierra Club urged the Court to impose $320,000 in penal- ties and to direct Simkins to pay the penalties to a State clean water fund for use in cleaning up the Chesapeake Bay (J.A. 373). On July 31, 1986, Judge Murray con- cluded that the failure to file 11 DMRs covered 977 days and thus justified a maximum penalty of $9,770,000. App. 55a. However, the Court found that such violations were “not so egregious as to warrant the full assessment of $10,000 per day” but that a penalty of $977,000 would ‘‘serve as a sufficient deterrent” (App. 55a). Counsel fees and other litigation expenses were awarded to Sierra Club. App. 56a. No injunctive relief ~ were not placed “on the record”, as required by 28 U.S.C. § 455(e). As soon as it became aware of these facts, Simkins moved for recusal but Judge Murray’s denial of the motion (App. 59a-63a) was sustained on appeal (App. 14a-17a). Those rulings are not chal- lenged in this Petition. 2 In a later opinion, the Court explained that “the fact that no pollution existed is not relevant to the court’s decision to assess penalties for failure to comply with Maryland’s reporting require- App. 66a n.8. , ments.’ ‘ was considered or granted. Despite the formal prayer in its complaint for an injunction (App. 75a), Sierra Club did not request injunctive relief in its final sub- missions and took no appeal from the Court’s failure to issue an injunction.* B. Court of Appeals Proceedings Simkins did appeal to the Fourth Circuit, which af- firmed the judgment for penalties. The primary thrust of the appeal was a renewed, two-pronged challenge to the Article III standing of Sierra Club to maintain a citizen suit for civil penalties payable to the United States. First, Simkins argued that proof of the “injury” component of standing* was not satisfied by the Railey affidavit. Second, Simkins contended that the “redress- ability’ component of standing cannot be abridged by Congress itself and that § 505 offends Article III insofar as it permits a citizen to seek and obtain judgment for penalties without any personal stake in their recovery. In an opinion by Chief Judge Winter, the Fourth Circuit disagreed with both contentions. It found the Railey affidavit sufficient to establish injury stemming from Simkins’ past violations. App. 6a-7a. On the Ar- ticle III “redressability” question, the Fourth Circuit advanced the thesis that the deterrent effect of penalties 3 Unlike Simkins, Sierra Club filed no post-judgment motion. It did not seek reconsideration of the Court’s failure to grant injunc- tive relief. 4 This Court has adopted a three-part test of Article ITI standing: “TA]t an irreducible minimum, Art. III requires the party who invokes the court’s authority to ‘show that he personally has suf- fered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’” Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 472 (1982) (citations omitted). 8 is sufficient of itself to confer standing upon citizens to sue for their recovery, even if such penalties are con- cededly payable only to the United States Treasury. App. 8a. In addition, the Fourth Circuit was obliged to reconcile the judgment for penalties, based on Simpkins’ past violations of its permit, with the collapse of its own precedent on which that judgment was predicated. Chesa- peake Bay Foundation v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir. 1986) (opinion per Winter, C.J.), vacated 484 U.S. , 108 8.Ct. 376 (1987). The pres- ent case was argued prior to this Court’s decision in Gwaltney, but the Fourth Circuit refused to remand the case for further findings of fact. The Fourth Circuit held “as a matter of law” that Sierra Club had alleged “in good faith” and had also proved a continuing viola- tion within the meaning of Gwaltney. App. 8a-9a. As a pleading matter, the Fourth Circuit focused ex- clusively on the pre-suit 60-day notice letter in support of its conclusion that “Sierra Club alleged in good faith a continuing violation of the Clean Water Act.” App. 9a. It did not address Simkins’ argument that the letter described a state of affairs that had existed on August 31, 1984, but did not purport to cover events happening when suit was filed 60 days thereafter. The jurisdic- tional allegation of the complaint filed October 31, 1984, merely asserted that Simkins “has violated” its permit (App. 74a). The allegations of the complaint were not mentioned in the opinion below. As a matter of proof, the Fourth Circuit questioned the accuracy of the pre-suit DMRs filed by Simkins. App. 10a. It did not acknowledge the District Court’s finding that Simkins, after filing pre-suit DMRs on October 1, 1984, has remained in compliance by continuing to file all DMRs required by its permit. App. 5la. “More sig- nificantly”, according to the opinion below (App. 10a), 9 Simkins also viclated its permit when it failed to main- tain records of monthly monitoring activities prior te September 30, 1984—although no such “record reten- tion” violation was charged in the 60-day notice or the complaint and was admittedly not considered by the Dis- trict Court. App. 10a n.7. The Fourth Circuit did rec- ognize that Simkins’ violations “occurred solely before Sierra Club filed suit,” (App. lla), but it held that such “violations continued past the date Sierra Club filed its complaint” and thus supported § 505 jurisdiction under Gwaltney. App. 1la.° 5 Finally, the Fourth Circuit concluded that the reporting con- dition of a permit constitutes “an effiuent standard or limitation”, alleged violation of which is a §505 jurisdictional prerequisite. App. 12a. It relied upon dicta (but not the holding) in Menzel v. County Util. Corp., 712 F.2d 91 (4th Cir. 1983) and the text of 83 U.S.C. § 1365(f)(6), which specifies the types of effluent limi- tations deemed to be “under this Act” for citizen suits but does not alter the meaning of “effiuent limitation” set forth in § 1362(11). Schwartz & Hackett, Citizen Suits Against Private Industry Under the Clean Water Act, 17 NAT. RESOURCES LAW. 327, 336 (1984). The Fourth Circuit rejected contentions that § 1365(f)(6) does not encompass all permit conditions, but refers to the effluent “standards or limitations as translated into the conditions of an NPDES permit.” E.P.A. v. California, 426 U.S. 200, 225 (1976) (court’s emphasis). See Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir. 1987). Under the construction urged below, a citizen suit may enforce “an effluent standard or limitation” in a permit, but would not encroach upon federal enforcement under 33 U.S.C. § 1319(a) of reporting and other permit conditions implementing § 1318-—-a provision nowhere mentioned in the citizen suit statute. With its singular focus upon paperwork violations, the decision below is strangely at odds with the requirement that a citizen must allege “a reasonable likelihood that a past polluter will con- tinue to pollute in the future.” Gwaltney of Smithfield v. Chesa- peake Bay Foundation, Inc., 484 U.S. ——, 108 S.Ct. 376, 381 (1987). By its uniaue construction, the Fourth Circuit has argu- ably expanded citizen suit jurisdiction beyond the reach of § 595. Because no other court has adopted that construction, we reserve further argument for briefing in the event that the writ of certi- orari is granted on the other questions presented. 10 REASONS FOR GRANTING THE WRIT I. Section 505 of the Clean Water Act Abridges the Article III Requirement of “Redressability” By Authorizing Private Citizens to Seek a Judicial Award of Penalties to the United States Treasury. The Clean Water Act contains a novel feature dis- tinguishing it from every other statute previously en- acted by Congress. In providing for citizen suits, $ 505(a) of the Act authorizes a private citizen suing “on his own behalf” to invoke federal jurisdiction to impose civil penalties payable exclusively to the United States Treas- ury. 33 U.S.C. §$1365(a). Invoking that provision, Sierra Club sought and obtained judgment for $977,000 in penalties but lacks any stake in their recovery. The United States, whose stake is uncontestable, was not a party to the suit. Nevertheless, in upholding the penalty judgment, the Fourth Circuit perceived in Article IIT of the Constitution no impediment to the standing of a private citizen to seek judicial relief beneficial only to the Treasury. App. 8a. However, Article III “is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power * * *,” Valley Forge Christian College v. Americans United, 454 U.S. 464, 476 (1982), Bets cases recognize that a mere showing of personal injury is not sufficient to establish st: nding; we have eae required that the injury be ‘fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Meese v. Keene, 107 S.Ct. 1862, 1869 (1987), quoting from Allen v. Viright, 468 U.S. 737, 751 (1984). The function of “the ‘redress nel component is to focus on the requested relief.” Allen v. . Wright, 468 U.S 737, 753n.19 (1984). Wlien the Nona sted relief consists of penalties payable to the Treasury, for general expend- itures unrelated to the environment, the focus reveals an 11 inescapable question of fundamental constitutional mag- nitude. A citizen who sues on his own behalf for penal- ties, which he is not entitled to share, cannot demonstrate “that he personally would benefit in a tangible way from the court’s intervention.” Warth v. Selden, 422 U.S. 490, 508 (1975). Standing requires “a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury to satisfy the “case or controversy’ requirement of Art. III.” Duke Power Co. v. Carolina Envir’l Study Group, Inc., 438 U.S. 59, 79 (1978). “The necessity that the plaintiff who seeks to invoke power stand to profit in some personal interest remains an Art. III requirement.” Simon v. Easton Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976). This case presents the “redressability’” question which inquires whether Congress exceeded the constraints of Article III when it allowed citizens to sue on their own behalf for penalties payable to the Treasury.° When the Clean Water Act was enacted, Congress plainly intended to expand citizen standing to the ful! extent permitted by Article III. It defined a “citizen” broadly “as a per- son or persons having an interest which is or may be adverselv affected.” 33 U.S.C. §1365(g). It is clear “that this phrase was intended by Congress to allow suits by all persons possessing standing under this Court’s de- cision in Sierra Club v. Morton, 405 U.S. 727 (1972).” Middlesex County Sewerage Auth. v. National Sea Clam- mers Ass’n, 453 U.S. 1, 16 (1981). Section 505 was thus adapted to Morton (but not later decisions) and was patterned upon a citizen suit provi- 6 Legal commentators agree that this question remains unre- solved. See, e.g., Thompson, Citizen Suits and Civil Penalties Under the Clean Water Act, 85 MICH. L. REV. 1656, 1678 (1987) ; Boyer & Meidinger, Privatizing Regulatory Enforcement: A Pre- liminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFFALO L. REV. 833, 938-39 (1985); Schwartz & Hackett, Citizen Suits Aaainst Private Industry Under the Clean Water Act, 17 NAT. RESOURCES LAW 327, 332-35 (1984). ’ ’ , { . ‘ i ~~ | (is ) ( f vr) ’ nd i a | ) f } ! f { - t ra ry 1} ( ? ) } YY { { ‘ Pp ‘ { { } the Clean Air Act, 42 U.S.C. § 7604(a), which for injunctive relief only. Middlesex County, 453 t i8 n.27. Congress took a drastic step beyond thos« when it authorized penalties to be assessed in ) while denying citizens any right in their re- lisposition. The legislative history does not ex- nificant aberration,’ except that Congress did hat any penalties imposed would be deposited as neous receipts and not recovered by the complain- Indeed, Congress considered and specifically re- he option of allowing citizens to collect a share of nalties.” Citizens were not authorized to recover es elther. Middlesex County, 453 U.S. at 14. effect of $505 is to deputize “private attorneys ’ able to invoke federal jurisdiction to impos ( hut eckine anv personal stake in their assess i Mis ally Personal LaKe In thelr aSSessS- 1" VP} The citizen plaintiff’s role is to assert permit ns and to request that a fine be imposed; the / t personally he nefit from hi 1n07) ( thie "= "= * “The [citizen plaintiffs in a Clean } ] f , ros , ‘ ens ft ] for pe! ties - ‘ \ / Penaltie Linde the Cle 1 ‘ 1656, 1669 n.65 (198 MckKir ( > S f Linder the Cla iH ict, ‘(2 l KEV. | S (198 chw tz & Ha t ] ' l’nd t} ( n WV | 7 | 27, 331 (1984) i] V2 Ist Se 79, 97? 1 JEWS 3668, 3745. This Court has 1 ww » ( or + ) | ! (; f , t} l Chi 184 U.S 108 S.Ct. 376, 379 (1987); M t14n.25 HISTOR) \\ R Po { 1972, at 221-21 (197 Water Act suit] are suing as private attorneys gen- eral and they seek the enforcement of federal law. Although the statute provides that a citizen sues ‘on his own behalf’, ani pe nalties recovered from such an action are paid into the United States Treasury. Unlike in a qui tam action, where a volunteer plain- tiff can recover part of the penalty, in this action a plaintiff recovers nothing. Any benefit from the law- suit, whether injunctive or monetary, inures to the public or the United States. The citizen suit provi- sion was designed to supplement administrative en- forcement, not to provide a private remedy. * * *” Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1522 (Ith Cir. 1987) (italics added), quoting from Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F.Supp. 440, 449 (D.Md. 1985). Given the recent and well-documented “explosion” of citizen penalty suits under § 505,‘° the important but un- resolved question of Article III “redressability” should be addressed by this Court. The lack of a controlling deci- sion engenders a serious paradox in the administration of justice. Precisely because Congress denied citizens a per- sonal stake in the penalties assessed in § 505 suits, the prospect of huge awards earmarked for the Treasury serves as a powerful incentive for private parties to di- vert claimed penalties to uses unauthorized by Congress. Citizen suits typically begin with demands for maximum penalties at the outset, but end in settlements requiring the defendant to donate sums to an environmental project designated by the citizen-plaintiff, in preference to having the funds disappear into the Treasury. Consent decrees on such terms are approved routinely by federal courts. lo See. e.g., Thomr son, Citizen Suits and Civil Penalties Under the Clean Wate? Act, 85 Micu. L. Rev. 1656, 1658-59 LOS7 McKinney, Statute of Limitations for Citizen Suits Under the Clean Water Act, 72 CORNELL L. REV. 195 (1986): Fodil. Citizen S igainst Polluters: Picking Up the Pace, 9 Harv. ENVTL. L. RE\ 14 See, e.g., Friends of the Earth v. Eastman Kodak Co., 696 F.Supp. 518, 515 (W.D.N.Y. 1987) ($49,000 paid to private foundation in lieu of penalties to the Treas- ury). Surveys of consent decrees indicate that citizen suits under § 505 generate more funds for a handful of national environmental groups that is collected by the Treasury on behalf of the taxpaying public2! Although Congress recently acted to curtail such abuses,’* the over- arching question remains whether Congress strayed be- federal judiciary in forcing payments to the Treasury. By purporting to confer jurisdiction upon federal courts to impose penalties in citizen suits to which the United States is not a party, Congress has posed that very question. It is undeniable that the ‘“redressability” component of standing is an Article III limitation upon the jurisdiction of federal courts importantly related to the doctrine of separation of powers. Allen v. Wright, 468 U.S. 737, 752 (1984); Valley Forge, supra, 454 U.S. at 473-74. Congress may not by statute, including § 505, Gonzales v. Gorsuch, 688 F.2d 1263, 1267-68 (9th Cir. 1982), authorize a form of judicial relief which does not prevent or redress the citizen’s claimed injury: 1 This private gain phenomenon is explored in Austin, The Rise of Citizen-Suit Enforcement in Environmental Law: Recon- ciling Private and Public Attorneys General, 81 Nortuw. U.L. REv. 220, 240 (1987); Lewis, Environmentalists’. Authority To Sue In- dustry For Civil Penalties, 16 ENVTL. L. REP. 10101, 10102 (1986); Boyer & Meidinger, Privatizing Regulatory Enforcemevt: A Pre- liminary Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFFALO L. REV. 833, 932-93 (1985); Schwartz & Hackett, Citizen Suits Against Private Industry Under the Clean Water Act, 17 NAT. RESOURCES LAW. 327, 359-60 (1984). ‘The Clean Water Act was amended in 1987 to provide that consent decrees to which the U..ited States is not a party will not become final until 45 days after the Attorney General and the Ad- ministrator have received copies of the decree. Water Quality Act of 1987, Pub. L. No. 100-4, § 504, 1987 U.S. Cope ConG. & ADMIN. NEWS 7, 75, codified as 33 U.S.C. § 1365(c¢) (23). 15 * * * Congress may, by legislation, expand standing to the full extent permitted to Art. III, thus per- mitting litigation by one “who otherwise would be barred by prudential standing rules.” In no event, however, may Congress abrogate the Art. III minima. A plaintiff must always have suffered “a distinct and palpable injury to himself,” that is likely to be redressed if the requested relief is granted. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (citations omitted). The Article III “redressability” question is no less im- portant because it is capable of evading review. Because consent decrees avoid a judicial assessment of penalties, citizen suits are rarely litigated to final judgment. In fact, during the entire 16-year history of the Clean Water Act, only twice has a penalty judgment in a § 505 suit been subjected to appellate review. Both cases were de- cided by the Fourth Circuit in panel opinions by Chief Judge Winter. Apart from the present case, the other Fourth Circuit decision was vacated last term in Guwalt- ney of Smithfield v. Chesapeake Bay Found., Inc., 484 US. , 108 8.Ct. 376 (1987) (“Gwaltney”) This Court concluded in Gwaltney “that citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjein or otherwise abate an ongoing viola- tion.” 108 S.Ct. at 382. The present case raises the ques- tion which Gwaltney did not reach. Once a past violation has been abated and injunctive relief is no longer appro- priate, does a citizen have Article III standing to procure the assessment of penalties payable to the United States Treasury? In Gwaltney, in sharp contrast to the present case, no standing question was raised in the Fourth Circuit or in the petition for certiorari. Although this Court did not discuss the “redressability” component of standing, the Solicitor General did identify the Article III problem en- gendered by citizen suits for penalties: ieee a 16 * * * A citizen plaintiff who alleges that he is ad- versely affected by a company’s ongoing violation of its discharge permit and requests an injunction re- quiring compliance can satisfactorily demonstrate, at least at the pleading stage, both personal injury and redressability. However, a citizen who brings suit to obtain a judicial assessment of civil penalties for nonrecurring past violations would fail to meet Article III’s requirements; the mere assessment of civil penalties, which are payable only to the Treas- ury, would not redress in a meaningful sense the citizen’s alleged injuries. Cf. Linda R.S. v. Richard D., 410 US. 614 (1973). ** * Brief for the United States as Amicus Curiae in Guwalt- ney, No. 86-473 (Oct. Term, 1986) at 21 n.34 (italics added). We concur with the Solicitor General, hastening to add that Article III standing is not restricted to the pleading stage but must exist throughout the litigation including appeal. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) ; see id. at 551 (dissenting opinion). When injunctive relief is abandoned or becomes moot during litigation, a dependent elaim for penalties to the Treasury cannot satisfy the ‘“redressability’ component of citizen standing. Cf., Deakins v. Monaghan, 108 S. Ct. 923, 529 (1988). The decision below did not consider the essential nexus between injunctive relief and penalties. It advanced a deterrence rational for upholding the judgment for pen- alties in the complete absence of injunctive relief: % |T |he judicial relief of civil penalties, even if payable only to the United States Department of the Treasury, is causally connected to a citizen-plain- tiffs injury. Such penalties can be an important deterrence against future violations. Members of Sierra Club must show actual or threatened injury traceable to the wrong and a particularized interest 17 in deterring violations of the Act, but once they have done so, the imposition of civil penalties is causally connected to the injury. See Student Public Interest Research Group, Inc., v. AT & T Bell Laboratories, 617 F.Supp. 1190, 1200-01 (D.N.J. 1985) (money damages [sic] awarded in Clean Water Act citizen suit made payable to U.S. Treasury did redress plaintiff’s injury in the form of general deterrence). App. 8a (fn. omitted). The deterrence theory embraced by the Fourth Circuit, without further elaboration '* owes no allegiance to the decisions of this Court. The nisi prius opinion cited be- low, Student Public Interest Research Group, Inc. v. A.T. & T. Bell Laboratories, 617 F.Supp. 1190 (D.N.J. 1985), was never tested by appellate review.” Its deterrence ration- ale is incompatible with Article III precedents for mani- 18 In its footnote, the Fourth Circuit found it “interesting to note that Simkins commenced compliance with its reporting obligations under the Clean Water Act Shortly after Sierra Club notified Simkins in a letter dated August 31, 1984, * * * of its belief that Simkins was failing to comply with permit requirements.” App. 8a n.d (italics added). By that comment the Fourth Circuit contradicted an express finding of the District Court: “On August 29, 1984, the acting plant manager, Jim Grant, instructed Robert Frey, controller, to see that all applicable state and federal monitoring requirements were complied with.” App. 50a. That finding was not challenged on appeal. '*The deterrent effect of civil penalties was also stressed in Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 309-10 (4th Cir. 1986) (Winter, C.J.), vacated 108 S.Ct. 876 (1987), in an unpersuasive attempt to justify citizen suits for wholly past violations. '* After summary judgment was granted to the citizen-plaintiff on issues of liability, the parties settled the suit for $75,000, only preserving a dispute over attorney’s fees for further litigation. Student Public Interest Research Group of New Jersey, Inc. v. A.T. & T. Bell Laboratories, 643 F.Supp. 961, 962 (D.N.J. 1986), modified and remanded, 842 F.2d 1436 (3rd Cir. 1988). 18 fold reasons. First, deterrence rests upon the premise that penalties will force compliance if permittees “know they can be sued for past violations even if they cease discharges or come into compliance with their permits before they are sued.” Jd. at 1200. That premise was surely discredited by Gwaltney. Second, the notion “that Congress intended deterrence as a purpose of sanctions” (id. at 1201), simply begs the Article III question. Third, even if “the deterrent effect of civil penalties is not a remote possibility” because “the general public will benefit” (id. at 1202), that generalized benefit hardly es- tablishes a substantial likelihood that the citizen seeking a penalty assessment “personally would benefit in a tangi- ble way from the court’s intervention.” Warth v. Selden, 422 U.S. 490, 508 (1975). At bottom, the deterrence theory proves too much. Vir- tually every major standing question presupposes some claim to judicial relief which, if granted, would “dis- courage” a forbidden practice by others. See, e.g., Simon ». Eastern Kentucky Welfare Rights Org., 426 U.S. 28, 42 (1976). If deterrence alone were to satisfy the “re- dressability” component of standing, then Congress might as readily authorize citizens to initiate or intervene in criminal prosecutions against environmental violators." Of course, it is settled that “a private citizen lacks a judicially cognizable interest in the prosecution or non- prosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1974) (prosecution of father would not guarantee his child support payments). See also, Dia- mond v. Charles, 476 U.S. 54, 64 (1986) (physician lacks standing to exact compliance with anti-abortion law): Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 897 16 Congress has attempted to do just that. Under § 505(b) (1 )(B) of the Clean Water Act, a citizen may “intervene as matter of right” in any federal civil or criminal” prosecution of a violator. 98 U.S.C. § 1365(b)(1)(B). See also Deepwater Ports Act, § 16(b) (1)(B), 33 U.S.C. § 1515(b) (1) (B). 19 (1984) (employers “have no judicially cognizable inter- est in procuring enforcement of the immigration laws’ against aliens in their employ); Leeke v. Timmermen, 454 U.S. 83 (1981) (assault victim lacks standing to compel arrest of assailants). It is possible that citizens and environmental groups might derive satisfaction if violators are stung with large penalties, but that “is not the sort of benefit from which Article III standing is constructed * * *.” Safir v. Dole, 718 F.2d 475, 480 (D.C. Cir. 1983) (per Scalia, J.). Ab- sent a personal stake in the penalty assessment,'' the “emotional satisfaction from a ruling” that an adver- sary’s past acts were “wrongful” is not a redressable interest. Ashcroft v. Mattis, 481 U.S. 171, 172-73 (1977). The urgent need for definitive guidance on the con- tours of Article III redressability, as applied to § 505’s authorization of civil penalties in citizen suits, is under- scored by recent amendment of other environment meas- ures designed to confer like penalty authority upon pri- vate citizens.'* In spelling out conditions under which citizens may sue for penalties, the Gwaltney decision serves to fuel speculation that the “redressability” com- ponent of Article III standing is merely a prudential con- cern and does not apply when Congress allows citizens to stand in the shoes of the Treasury. The decision below reinforces that speculation and deserves review by this Court. 17 The ability of a citizen to recover attorney fees and costs in a suit resulting in successful abatement before verdict, Gwaltney, 108 S.Ct. at 386 n.6, does not enhance his stake in an award of penalties. See Diamond v. Charles, 476 U.S. 54, 70 (1986); White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 452 (1982). 18 Tdentical penalty authority was added to citizen suit provisions of the Resource Conservation and Recovery Act of 1984, 42 U.S.C. $ 6972(a)(2), and the Comprehensive Environmental Response, Compensation, and Liability Act of 1986, 42 U.S.C. § 9659(c). 20 II. In Its Review of a Summary Judgment Rendered in Direct Conflict With this Court’s Decision in Gwaliney, the Court of Appeals Erred by Finding a Continuing Violation of the Act Never Charged by Complaint or Motion and Negated by the Unchallenged Findings of Fact. This Court’s holding in Gwaltney discredited the Fourth’s Circuit’s theory allowing citizen suits under § 505 for wholly past violations of the Clean Water Act. The judgment of the District Court rested entirely upon that repudiated theory, but the Fourth Circuit upheld it anyway. The Fourth Circuit enswered the Gwaltney decision by ignoring the complaint and the findings of fact in order to revive its own pre-Gwaltney theory of the law. In so doing, it disagreed in principle with the Ninth Circuit decision in Sierra Club v. Union Oil Co. of Cali- fornia, 853 F.2d 667, 671 (9th Cir. 1988), that findings of fact by the District Court on the issue of ongoing vio- lations are necessary to support a judgment for penalties. In its strained attempt to circumvent Gwaltney and contrive a “continuing violation” where none existed, the Fourth Circuit could only cite pre-suit paperwork errors as the jurisdictional basis for $977,000 in penalties. It was obliged to rely on forced rationales while refusing to recognize Simkins’ immediate, diligent efforts to bring itself into full compliance with its permit as soon as it received 60-day notice. Simkins has remained in com- pliance ever since. The Fourth Circuit simply ignores basic law that “the purpose of notice to the alleged vio- lator is to give it an opportunity to bring itself into com- plete compliance with the Act and thus likewise render unnecessary a citizen suit.” Gwaltney, 108 S.Ct. at 382- 85. The notice achieved the exact purpose of Congress, but the Fourth Circuit disregarded that purpose. Its 21 cramped reading of Gwaltney strips Simkins of the bene- fit of timely compliance. In upholding a judgment rendered in direct conflict with Gwaltney, the Fourth Cireuit saw fit to (1) over- look the defective jurisdictional allegations of the com- plaint; (2) uphold summary judgment on a ground never presented to the District Court; (3) substitute its appel- late views of the record for the unchallenged findings of fact; (4) assess guilt for a violation never charged, and (5) refuse to remand the case for findings of fact re- sponsive to the supervening decision in Gwaltney. In each instance, the Fourth Circuit defied the precedents of this Court and created a substantial conflict with deci- sions from other circuits. The decision below was a ver- itable explosion of errors, profoundly implicating sub- ject-matter jurisdiction and procedural due process, which invites intervention by this Court. 1. Defective jurisdictional allegations. The decision below trivializes the holding in Gwaltney that § 505 con- fers jurisdiction only when the citizen-plaintiffs make “a good faith allegation” of continuing or intermittent vio- lation. Jd. 108 S.Ct. at 385. The “good faith allegation” must be tested by Rule 11, Federal Rules of Civil Pro- cedure, which requires the complaint to be based on a good faith belief that the allegations are “well grounded in fact.” Id. This Court remanded for a decision “whether respondents’ complaint contained a good-faith allegation of ongoing violation by petitioner.” Jd. 108 S.Ct. at 386 (italics added). The Sierra Club complaint, filed October 31, 1984, did not purport to satisfy this jurisdictional requirement. It merely alleged that Simkins “thas violated” its permit in the particular specified in a letter dated August 31, 1984, which was incorporated by reference (App. 74a). The 22 complaint did not allege that the past violations were on- going.’® However, in its opinion below, the ourth Circuit no- where mentioned the allegations of the complaint. It re- lied exclusively upon the recitals in the August letter as having “alleged in good faith a continuing violation of the Clean Water Act.” (App. 9a). It refused even to acknowledge the indisputable facts that the August letter (a) described a situation that had existed 60 days prior to filing the complaint and (b) did not constitute a plead- ing subject to the good faith requirement of Rule 11. The decision below nullifies the Gwaltney pleading cri- terion. It also contradicts this Court’s long-standing in- sistenee that jurisdiction must be distinctly alleged and may not be inferred argumentatively from the pleadings. See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 547 (1986). 2. Summary judqment. The decision below, recog- nizing that a citizen-plaintiff must prove a continuing violation, found it “beyond dispute that Sierra Club proved a continuing violation” within the meaning of Gwaltney. App. 9a. However, that issue was not sub- mitted to or adjudicated by the District Court. Simkins was never given a chance to dispute that issue. Having alleged that Simkins’ violations consisted of its past failures to file DMRs, Sierra Club moved for sum- mary judgment on the sole ground that Simkins “has violated the Clean Water Act” in that respect (J.A. 68). Sierra Club argued that “{wle are asking this Court to impose penalties for past violations” (J.A. 89) and that Simkins’ present compliance “has no bearing whatsoever on the issue of lability” (J.A. 92). The District Court 19 In contrast, the complaint in Gwaltney alleged that defendant “has violated * * * [and] will continue to violate its NPDES per- mit.” Gwaltney, 108 S.Ct. at 380. 23 agreed. It granted summary judgment on the ground that Simkins “has failed to file DMRs in the past” and present compliance “is irrelevant to plaintiff’s cause of action.” App. 39a, 40a. Gwaltney destroyed the legal basis for the summary judgment. Instead of vacating the judgment, however, the Fourth Circuit upheld it on a different ground neither raised by the motion for summary judgment nor consid- ered by the District Court. The appellate decision that a continuing violation was shown “beyond dispute” in- jected on appeal “a new issue as to which the opposite party had no opportunity to present a defense before the trial court.” Fountain v. Filson, 336 U.S. 681, 683 (1949). Indeed, if Simkins had been charged with a continuing violation, it could have developed the record to resist summary judgment on that charge and would have exercised its Seventh Amendment right to a jury decision of that issue. Tull v. United States, 107 S.Ct. 1831, 1839 (1987). The decision below contradicts the Fountain holding that it is erroneous to deprive a party opposing summary judgment of an opportunity to dispute the facts material to an issue not presented to the trial court. Fountain, 336 U.S. at 683. In addition, summary judgment may not be granted or affirmed on a ground raised for the first time on appeal. Recent decisions of other circuits so hold.’ The decision below stands in direct conflict with those holdings. 3. Appellate factfinding. This case seriously questions the authority of an appellate court, subject to Rule 52(a) of the Federal Rules of Civil Procedure, to find a con- tinuing violation where none was charged or found in the District Court. Faced with a judgment hopelessly at 20 See, e.g., John Deeve Co. v. American National Bank, 809 F.2d 1190, 1192 (5th Cir. 1987); McBride v. Merrell Dow & Pharmaceu- ticals, Inc., 800 F.2d 1298, 1212 (D.C. Cir. 1986): Williams v. City of St. Louis, 783 F.2d 114, 116 (8th Cir. 1986). 24 odds with Gwaltney as a matter of law, the Fourth Cir- cuit disregarded the trial judge’s finding of continuing compliance and weighed the evidence de novo in order to conclude that pre-suit violations continued beyond filing of the complaint. App. 10a-lla. Despite this Court’s re- peated admonitions, the Fourth Circuit chose “to ignore the dictates of Rule 52(a) and engage in impermissible appellate factfinding.” Amadeo v. Zant, 108 S.Ct. 1771, 1780 (1988). Simkins was adjudged liable for wholly past violations consisting of failing to file DMRs until it was notified of the violations. As Gwaltney teaches, “‘the purpose of notice to alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.” Jd. 108 S.Ct., at 382-83. During the 60-day period prior to suit, Sim- kins did everything possible to achieve compliance. Its efforts were recognized in the detailed findings of fact adopted by the District Court after a bench trial on the issue of penalties. App. 46a-53a. Based on the evidence, the District Court found explicitly that ‘“|c]ommencing with the report due in October, 1984, and continuing through the present |July 31, 1986], Simkins has filed quarterly discharge monitoring reports as required by its permit.” App. 5la. The Fourth Circuit completely disregarded these find- ings. While conceding it “is true that Simkins’ failure to sample occurred solely before Sierra Club filed suit” (App. lla), the Fourth Circuit impugned the compliance finding in two respects. First, it observed that the pre- suit DMRs filed on October 1, 1984, which reported sam- plings for September, “did not include sampling data for the months of July and August of 1984, and therefore did not include accurate quarterly averages.” (App. 10a). However, in submitting proposed findings to the District Court, Sierra Club did not suggest any deficiency in the October DMR or request a finding on the point. 25 Second, the Fourth Circuit observed: “Simkins did not file a complete DMR until January 15, 1985, almost three months after Sierra Club filed its suit on October 31, 1984.” App. 10a. Surely, this is a non-sequitur. Under its permit, Simkins was required to file DMRs on a quarterly basis, e.g., (October 1 to December 31, 1984), but those DMRs were not due until January 28, 1985 (J.A. 21). By filing the DMRs on January 15, Simkins was in total compliance for the entire quarter, including the date suit was filed. Furthermore, any charge of continuing noncompliance was negated by the findings of uninterrupted post-notice compliance. It is significant that the District Court re- tained jurisdiction of this case for more than two years, without any suggestion of recurring violations of the per- mit. Even if suit was properly brought initially, the demonstrated compliance initiated prior to suit and con- tinuing thereafter raises an unresolved mootness question. Gwaltney, 108 S.Ct. at 386; Atlantic States Legal Foun- dation v. Tyson Foods, Inc., 682 F.Supp. 1186, 1190 (N.D. Ala. 1988). What is most disturbing is the Fourth Circuit’s draw- ing of unwarranted inferences from the record, with no mention of the findings of the District Court. Once again, the question “is not whether the Fourth Circuit’s inter- pretation of the facts was clearly erroneous, but whether the District Court’s finding was clearly erroneous.” An- derson v. Bessemer City, 470 U.S. 564, 577 (1985). The Fourth Circuit identified no infirmity in the findings of fact; it ignored them entirely. This was not a viable option: * * * If the Court of Appeals believed that the Dis- trict Court had failed to make findings of fact es- sential to a proper resolution of the legal question, it should have remanded to the District Court to make those findings. If it was of the view that the findings of the District Court were “clearly erron- 26 eous” within the meaning of Rule 52(a), it could have set them aside on that basis. If it believed that the District Court’s factual findings were unassail- able, but that the proper rule of law was misapplied to those findings, it could have reversed the District Court’s judgment. But it should not simply have made factual findings on its own. * * * Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). The scope of Rule 52(a) is a basie concern to all fed- eral litigants. If the continuing violation of a permit is thought to raise an “ultimate fact”, then the decision below should be reversed summarily on authority of Pullman-Standard v. Swint, 456 U.S. 273, 286-87 (1982). If it is regarded as a mixed question of law and fact, then this Court should grant the writ to resolve the substan- tial conflict of decisions of this Court and among the circuits—a conflict which was carefully identified but not addressed in the Swint case. Id. 456 U.S. at 289-90n.19. When massive penalties hinge upon little more than ap- pellate factfinding, the proper construction of Rule 52(a) seems all the more imperative. 4. Uncharged violation. The Fourth Circuit was evi- dently unconvinced by its own analysis of the sole viola- tion charged in the 60-day notice and the complaint and adjudicated by the District Court—the wholly past fail- ures to file DMRs required by the permit. Incredibly, the Court seized upon a separate provision in the permit and concluded that “Simkins failed to maintain records of monthly sampling it was obligated to perform prior to September 30, 1984, as required by * * * the record re- tention provision of its permit.” App. 10a. Because Simkins was never charged with a “records retention” violation at any time before the Fourth Cir- cuit concocted it, without record support, Simkins stands penalized for unalleged misconduct for which no notice 27 or opportunity to defend was ever provided." It is a shocking abdication of due process to sustain a $977,000 penalty judgment on an appellate finding of a violation not alleged or adjudicated below. No punitive sanction may be imposed in these circumstances. Roadway Ex- press, Inc. v. Piper, 447 U.S. 752, 767 (1980). Moreover, while upholding Article III standing upon an affidavit averring injury traceable to reporting violations, the Fourth Circuit did not explain how Sierra Club acquired standing to enforce a “record retention” provision with- out alleging its violation. 5. Refusal to remand. Finally, the decision below creates an unnecessary conflict in principle with a later decision of the Ninth Cireuit. In Sierra Club v. Union Oil Co. of California, 853 F.2d 667, 671 (9th Cir. 1988), following its analysis of the Gwaltney decision, a panel of the Ninth Circuit noted record evidence of ongoing violations but declined to draw any conclusion because the district court had not made any factual findings on that issue. In Gwaltney itself, a different Fourth Cir- cuit panel remanded that case “to the district court for further findings as to whether, on the merits, plaintiffs proved at trial an ongoing violation.” Chesapeake Bay Found. Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171 (4th Cir. 1988). In remanding in Gwaltney, the Fourth Cireuit observed: “While the district court did make subsidiary findings pertinent to this issue, it did not make a direct finding as to whether citizen-plaintiffs proved the existence of intermittent or sporadic violations 21 Because the “missing records” would merely document wholiy past violations, a citizen suit predicated on such violations would bear no relation to current abatement, the sole justification for citizen suits cited in Gwaltney, 108 S.Ct. at 382-83. Moreover, the “continuing residual effects” of a permit violation do not transform it into a continuing violation. Hemker v. Diamond Shamrock Chemi- cal Co., 756 F.2d 392, 397 (5th Cir. 1985). In other contexts, the failure to file reports or maintain records does not constitute a continuing violation. See, e.g., Toussie v. United States, 397 U.S. 112, 115 (1970). 28 constituting an ongoing violation.” Jd., 844 F.2d at 172 (citation omitted; italics added). The Fourth Circuit all but disowned its Gwaltney dis- position when it perceived no need at all to remand this case to the District Court for further findings. App. 8a. It conceded: “The district court did not consider whether Simkins’ failure to maintain records and whether Sim- kins’ failure to file complete DMRs until after Sierra Club filed suit constituted continuing violations of the Act.” App. 10a n.7 (italics added). While noting that the District Court had authorized suit for past violations of the permit reporting requirements, App. 8a, the Fourth Circuit perversely disregarded the direct finding of con- tinuing compliance with those requirements before and after suit was filed. The Union Oi! decision underlines the self-contradictory and misguided attempt below to indulge in appellate fact- finding, especially on a sparse record left undeveloped be- cause of misplaced pre-Giwaltney reliance upon the past violation theory. Union Oil is faithful to the long line of precedents of this Court: “When an appellate court dis- cerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings.” Pullman-Standard v. Swint, 456 U.S. 278, 291 (1982), and authorities cited therein. See also Amadeo v. Zant, 108 S.Ct. 1771, 1780 (1988). The decision below, with its capricious refusal to re- mand for findings, stands in naked defiance of the rule. _ Given the “punitive nature of the relief” imposed below, Tull v. United States, 107 S.Ct. 1831, 1838 (1987), the Fourth Circuit compounded its unjustifiable disregard of the actual findings by its refusal to permit the District Court to make the “missing”’ findings. oo CONCLUSION For each of the foregoing reasons, this Court should grant the writ and reverse the decision below. Respectfully submitted, DAVID F.. ALBRIGHT HARLEY THOMAS HOWELL * SEMMES, BOWEN & SEMMES 250 W. Pratt Street Baltimore, MD 21201 (301) 5389-5040 * Counsel of Record ” Counsel for Petitioner October 19, 1988 APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 87-1600 SIERRA CLUB, Plaintiff-Appellee versus SIMKINS INDUSTRIES, INC., Defendant-A ppellant Appeal from the United States District Court for the District of Maryland Herbert F. Murray, District Judge—(CA-84-4018-HM) Argued November 4, 1987 Decided: May 31, 1988 BEFORE WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge. David F. Albright; H. Thomas Howell (Semmes, Bowen & Semmes on brief) for Appellant; John F. King WINTER, Chief Judge Simkins Industries, Inc., (Simkins) appeals from a judgment entered against 1 in a citizen suit brought by Sierra Club pursuant to ¢ 505 of the Clean Water Act, 29 1.S.C. $1365. The district court held that Simkins was — under the Clean Water Act for failing to comply with the terms and conditions of Simkins’ Na- tional "p ollutant Discharge Elimination System (NPDES) permit by failing to file qu arterly reports from August 1, 1981, to March 31. 1984, Sierra Club Vv. Simkins Indus- tries, Inc., 617 F. Supp. 1120 (D. Md. 1989) (granting partial summary judgment on liability), and assessed civil penalties ‘n the amount of $977,000 ($1,000 per day of viol: tion). Simkins argues on appeal that Clean Water Act citizen suits may not be properly founded on such reporting \ violations and that citizen-plaintiff Sierra Club has not established a continuing violation within the meaning of Gwaltney of Smithfield, Ltd. v. Chesa- peake Bay Foundation, Inc., .g. ——, 108 8. Ct. 276. 98 L. Ed. 2d 206 (Dec. 1, 1987). We disagree. We also perceive no merit in Simkins’ challenges to Sierra Club’s standing; the district court’s calculation of civil penalties ; and the district court’s denial of Simkins’ belated motion for recusal. We therefore affirm the dis- trict court’s judgment on liability and civil pe malties. co 1 Decision in this ap] eal was stayed pr nding the Supreme Court’s decision in Gwaltney (citizen-plaintiff suits pursuant to $505 of the Clean Water Act may not be based upon wholly past violations ) and again stayed by mouuon of the parties p nding ongoing settle- nt negotiations. Because we now have the benefit of the Supreme Court’s guidance in Gwaltney and because the parties have re] orted their inability to reach a S¢ ttlement, we proceed to decision. After oral argument, the United States moved for limited inter- vention to insure that any civil penalties assess d in this action be —— 9 oa I. The Clean Water Act (Act), 33 U.S.C. §§ 1251 et 8e9- (1982 and West Supp. 1988), originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, “to restore and maintain the chemical, physi- eal, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1261 (a). Section 301! a) of the Act, 33 US.C. §$1311(a), yenerally prohibits the discharge of pollutants into navigable waters unless the point source has ob- tained a permit from the Environmental Protection Agency (EPA). Under a procedure established by Con- gress in § 402 of the Clean Water Act, 33 U.S.C. § 1342, the EPA Administrator may delegate to a state the au- thority to administer the NPDES program with respect to point sources in that state, and the source state may set more stringent minimum effluent levels supplanting federal standards. A violation of an NPDES permit, whether issued by state or federal officials, is a violation of the Act exposing the permit holder to liability under 8505 of the Act. See Environmental Protection Agency vy. California e& rel. State Water Resources Control Board, 426 U.5. 200, 205 (1976) ; 33 US.C. § 1342(k). The State of Maryland is authorized by the EPA to administer the NPDES program for point sources in the State of Maryland. In_ particular, Maryland issues NPDES permits and is empowered to attach certain terms and conditions to these permits, including sampling and reporting requirements. Section 308 of the Clean Water Act, 33 U.S.C. § 1318, provides that recipients of such permits may be required to establish and maintain records, install monitoring equipment, and perform sam- pling, § 1318(a) (4) (A). It also authorizes the EPA Administrator or his or her authorized representatives a made payable to the United States Treasury. On April 22, 1988, we denied the government's motion without prejudice to another application if future circumstances demonstrate that it is necessary for the government to seek protection of its interests. 4a right of entry to an effluent source location or to premises where required records or monitoring equipment are kept, $ 1318(a)(4)(B). A citizen suit must allege viola- tion of “an effluent standard or limitation,” 33 U.S.C. § 1365(a) (1), defined, inter alia, to mean “a permit or condition thereof issued under section 1342... .,” § 1365 (f) (6). In 1981, the Office of Environmental Programs of the Maryland Department of Health and Mental Hygiene is- sued Simkins a permit pursuant to 33 U.S.C. § 1342 for its paper mill in Catonsville, Maryland, on the bank of the Patapsco River. Simkins’ paper mill manufacturers cardboard, and in the course of operation Simkins dis- charges treated waste from its plant into the Patapsco Liver. See 617 F. Supp. at 1123. The NPDES permit allowing Simkins to discharge this waste was conditioned upon maximum daily and quarterly averages in levels of oil and grease. The permit also required Simkins to moni- tor at locations near its plant the levels and volume of flow of oil and grease, as well as other effluents such as copper, total organic carbon, and total phenol. The per- mit required Simkins to sample on a monthly basis and to summarize and file accurate results with the Office of Environmental Programs in quarterly Discharge Moni- toring Reports (DMRs). See 40 C.F.R. §§ 122.41(/) (4) (i) ; 122.22(b), (d). It is undisputed that Simkins failed to sample and to file the quarterly DMRs for a period of over two years. The district court heard testimony that the plant man- ager’s supervisor did not regard sampling as a “prior- ity.” The Sierra Club filed its citizen suit on October 31, 1984. It sought declaratory relief, injunctive relief, and civil penalties of $10,000 per day of violation, alleging that Simkins’ failure to report constituted a separate vio- lation for each day it occurred. The district court 5a granted Sierra Club’s motion for partial summary judg- ment, and subsequently fixed civil penalties.’ IT. Simkins challenges Sierra Club’s Article III standing to sue as a private attorney general seeking enforcement of the Clean Water Act under the Act’s citizen suit pro- visions, 33 U.S.C. § 1365. In its complaint, Sierra Club alleged that health, recreation, aesthetic, and environ- mental interests of its members were and were going to be adversely affected by Simkins’ failure to comply with the terms and conditions of its NPDES permits. Sierra Club submitted the affidavit of member John Railey at- testing to his interest, as one regularly using and enjoy- ing the Patapsco River and surrounding land, in preserv- ing the environmental integrity of the river. Simkins 2 The district court deferred decision on liability, awaiting our decision in Gwaltney as to whether civil penalties under Section 309(d) of the Act, 33 U.S.C. §1319(d), can be assessed per day of violation. See Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 314-15 (4 Cir. 1986) (civil penalties may be assessed on a daily basis), vacated on other grounds, —— U.S. ——, 108 S. Ct. 376 (1987); § 1319(d) (“shall be subject to a civil penalty not to exceed $10,000 per day of such violation”). The district court then concluded that Simkins’ failure to comply with its NPDES permit exposed Simkins to a maximum penalty of $9,770,000, $10,000 for each day of violation, and exercised its discretion in assessing a penalty of $1,000 for each day of viola- tion. 3 Simkins’ suggestion that Mr. Railey’s affidavit was too vague to support summary judgment is not well-founded. The affidavit was sufficiently specific to allege Article III injury in stating: My interest, use or enjoyment of the Patapsco River and surrounding area includes preserving the health, safety and welfare of the river basin, preserving marine life and water integrity within the river, and eliminating odorous and un- sightly illegal pollution. I regularly hike along the river. My activities and interests with respect to the Patapsco River have been adversely affected physically, aesthetically and emotionally . ba argues that Sierra Club has not shown injury under Article III fairly traceable to Simkins’ failure to sample and file DMRs, and that Sierra Club’s citizen suit is violative of the Article III requirement that a plaintiff’s injury be redressed by the requested ~elief. We disagree with both contentions. A. Sierra Club maintains that its members have been in- jured by Simkins’ reporting violations because they are unable to know the full extent of pollution in the river near Simkins’ paper mill. Mr. Railey’s articulated inter- ests include aesthetic and environmental interest which can constitute injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972). Of course, Congress’ provision for citizens suits does not, in itself, establish Article III standing; Sierra Club must establish that one or more of its members use the Patapsco River and would be ad- versely affected by its pollution. See Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2d Cir. 1984) (to establish standing under § 505 of the Act, Sierra Club required to demonstrate actual injury within the meaning of Morton). John Railey’s affidavit adequately establishes injury and the threat of future injury,‘ stemming from both by Simkin’s [sic] Industries’ failure to comply with its NPDES permit and resulting illegal pollution. Finally, I have an interest in monitoring the discharge of effluents into the Patapsco River. A. 112. Simkins presents no reason to doubt the truth of Mr. Railey’s affidavit. The district court was not presented with such a challenge, and thus did not have occasion to review any evidence underlying Mr. Railey’s affidavit. Under these circumstances. we accept as true statements made in the affidavit. See Chesapeake Bay Foundation v. American Recovery Co., 769 F.2d 207, 209 n.1 (4 Cir. 1985) (ner curiam 'See Valley Forge Christian College v. Americans United For Separation of Church & State, Ine., 454 U.S. 464, 472 (1982 Ta Simkins’ failure to report concerning harmful effluents for which its permit contained maximum discharge levels and Simkins’ failure to report concerning the levels of other effluents for which it was not subject to discharge limitations. As a result of these violations, information on any harmful level of pollutants in the area of Simkins’ plant during this time period is forever lost to environ- mental planners and policymakers and those who might undertake to remedy the effects of any pollution. More- over, Simkins’ failure to report on levels of harmful ef- fluents subject to maximum discharge limitations threat- ens Mr. Railey’s prospective interest in protecting the environmental integrity of the Patapsco River and cur- tailing any ongoing unlawful discharges into its waters. The actual injury stemming from reporting and sam- pling violations, coupled with the threatened injury stemming from failure to report on maximum levels of harmful effluents, establishes injury traceable to Simkins’ actions. B. Simkins also contends that the Clean Water Act’s pro- vision for civil penalties unconstitutionally provides a remedy which does not address the Sierra Club’s injury, maintaining that Sierra Club has failed to establish “the causal connection between the alleged injury and the ju- dicial relief requested.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). It is true, as the Supreme Court has observed, that Congress’ provision for citizen suits in § 1365 necessarily includes . . . plaintiffs seeking to enforce these statutes as private attorneys general, whose injuries are “noneconomic” and probably noncom- pensable . . (threatened rather than actual injury can meet minimum Article [II standing requirements). oa Middlesex County Sewerage Authority v. National Sea Ciammers Association, 453 U.S. 1, 17 (1981). However. judicial relief of civil penalties, even if payable only e United States Department of the Treasury, is causally connected to a citizen-plaintiff’s injury. Such penalties can be an important deterrence against futur violations.” Members of Sierra Club must show actual or threatened injury traceable to the wrong and a par- ‘ularized interest in deterring violations of th Act but once they have done so, the imposition of civil penal- ties is causally connected to the injury. See Student Public Interest Research Group, Inc. v. AT & T Labora- tories, 617 F. Supp. 1190, 1200-01 D.N.J. 1985 money damages awarded in Clean Water Act citizen ut made payable to U.S. Treasury did redress plain- injury in the form of general deterrence ITT. Before the Supreme Court’s decision in Gwaltney. the court held that the Clean Water Act authorized en suits for imposition of civil penalties for past violations. 617 F. Supp. at 1126-27, 1121-32. In a sup- plemental memorandum filed after the (tf CISION ; pe ~ record, we think that onlv o1 I ~ Supreme Court’ contends that Gwaltner reversal of the district court’s decision. On in Gwaltney, Simkins ne conclusion is possible, a ‘ a matter of law, as to whether §$ 1365/a) encompasses this citizen suit, and accordingly neither reversal is in- dicated nor is there need to remand the case to the dis- court for further findings. Upon due consideration T! trict court was of course not obligated to fin - ( Ss lawsult had a specific, immediate deterrent ef rder to find that Article III standing ed. | ( veresting to note that Simkins commenced « mp! / { re] Cir obligatior nder the Clea Water A Sierra Club notified Simkir In a letter dated A l 184 int te U.S.A 1365(b)(1)(A f its | t Simk failing to comply with permit require 9a of the parties’ supplemental memoranda on Gwaltney’s application to this appeal, we conclude that Sierra Club 1as alleged in good faith and proved a continuing viola- tion within the meaning of Gwaltney. In Gwaltney, the Supreme Court held that citizen-suits could not be based upon wholly past violations, but dis- tinguished wholly past violations from allegations of in- termittent or sporadic violations. On remand from the Supreme Court, we have ruled that while the Supreme Court held that good faith allegations were sufficient to meet threshold jurisdictional challengers, the Supreme Court also stated that in order to prevail, a citizen- plaintiff must prove a continuing violation. See Chesa- peake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd.. ——- F.2d ——, No. 85-1873 (4th Cir. April 13, 1988). At the outset of this lawsuit, Sierra Club alleged in good faith a continuing violation of the Clean Water Act. In a letter dated August 31, 1984, and incorporated by reference in paragraph 14 of plaintiff’s complaint, Sierra Club alleged continuing reporting violations of the Clean Water Act. See 33 U.S.C. §$ 1318, 1365(a) (1) (A), 1365/f) (6).° It is also beyond dispute that Sierra Club proved a continuing violation of an effluent standard or limitation under 33 U.S.C. § 1865(a)(1)(A). Simkins was re- quired to ample on a monthly basis and maintain records of its sampling activities. The DMR Simkins filed in the 6In the August 31, 1984, letter, the so-called sixty-day letter U.S.C. § 1365(b), the Sierra Club placed Simkins on notice hat it believed Simkins “has violated and continues to viol: the terms of the permit, and proceeded to list reporting violations that had occurred to date. Sierra Club of course did not list report- ng violation that had not vet occurred and therefore were not + A “un to it. It was sufficient to allege a continuous series of re- porting violations coupled with an allegation that Simkins was yntinuing to violate its permit’s terms and conditions 10a 1984 did not include sampling data for the months of July and August of 1984, and therefore could not in- clude accurate quarterly averages. Simkins did not file a complete DMR until January 15, 1985, almost three i after Sierra Club filed its suit on October 31, nonth is 1984. More significantly, Simkins was required, as a general condition of its permit, to retain records of its sampling: Re cords Re té ntion All records and information resulting from the monitoring activities required by this permit, in- cluding all records of analyses performed, calibra- tion and maintenance of instrumentation, and orig- inal vanes from continuous monitoring instru- ment ion shall be ma ntained for a minimum of ae (3) years. This period shall be automatically xtended during the course of litigation, or when requested by DHMH [Department of Health and Mental Hygiene]. NPDES Permit No. MD0058033. general condition II] A)(7) (emphasis addedi. On and after October 31. 1984, the day the Sierra Club filed its citizen suit, Sim- kins failed to maintain records of monthly sampling it was obligated to perform prior to September 30, 1984, as required by 33 U.S.C. $ 1318 and the record retention provision of its permit.’ fhe district court did not consider whether Simkins fa maintain records and whether Simkins failure to file complete DMRs intil after Sierra Club filed suit constituted continuing violations of the Act. It calculated civil penalties based on reporting violations up until March 31, 1984. Sierra Club has not requested remand for extension of the time period the district court employed for dete) mining civil penalties, and we see no reason, in light of the dis- trict court’s decision to assess substantially less than the maximum possible civil penalties, to revise the district court’s cal lations. lla It is true that Simkins’ failure to sample occurred solely before Sierra Club filed suit, but Simkins’ moni- toring obligations were not designed to be a mere aca- demic exercise. Simkins was bound by the reporting and records retention requirements of the NPDES permit that are central to adequate administration and enforce- ment of limits on substantive discharges under the Clean Waiter Act. Unless a permit holder monitors as required by the permit, it will be difficult if not impossible for state and federal officials charged with enforcement of the Clean Water Act to know whether or not the permit holder is discharging effluents in excess of the permit’s maximum levels. Congress has provided that these rec- ords be made generally available, with some exceptions, to the Administrator, the public, and to Congressional committees. See 33 U.S.C. § 1318.5 Simkins cannot suc- cessfully defend against its failure to file complete DMRs or retain records by noting that the underlying data was never collected in the first instance. In this context, where the permit expressly establishes a continuing ob- ligation to retain records and file complete DMRs, to al- low such a defense to jurisdiction would effectively pro- vide a permit holder with the opportunity to escape liability under § 1365(a) by failing at the outset to sam- ple and to ereate and retain the necessary monitoring records on possibly harmful and unlawful effluent dis- charge levels. Because we conclude that Simkins’ violations con- tinued past the date Sierra Club filed its complaint, we do not reach the issue of whether they were intermittent or episodic violations which did not cease to be con- tinuous within the meaning of Gwaltney. 8 Required reports such as DMRs may be used as admissions in court to establish a defendant’s liability. See Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 451 (D. Md. 1985) 12a IV. In the district court, Sierra Club successfully main- tuined that Simkins’ undisputed failure to file quarterly DMRs for over thirty consecutive months violated the Act, 33 U.S.C. $$ 1318, 1365. Simkins challenges this holding, arguing that the phrase ‘an effluent standard or limitation” of § 1365(a) should be construed to exclude citizen suits that do not allege discharge of pollutants in violation of permit limitations. We disagree. Section 1365 defines an “effluent standard or limita- tion” to include “2 permit or condition thereof issued under section 1342 of this title.” § 1365(f) (6). As we said in Menzel v. County Utilities Corporation, 712 F.2d 91 (4 Cir. 1983): a discharger that fails to file [DMRs], or fails to file accurate reports, would be in violation of its NPDES permit and would be subject to citizens’ suit under 33 U.S.C. § 1365. Id. at 94: see also Pymatuning Water Shed Citizens for Hygienic Environment v. Eaton, 506 F. Supp. 902 (W.D. Pa. 1980) (awarding injunctive relief in citizens suit not alleging dischargers in violation of permit levels), aff'd, 644 F.2d 995 (3d Cir. 1981). Simkins’ reporting requirements are expressly made conditions of its per- mit. and therefore violations of these conditions, by op- eration of $1365(f) (6), are violations of an effluent standard or limitation of § 1865(a).° 9 Simkins’ efforts to distinguish substantive discharge limitations from reporting requirements therefore fails in light of the plain language of $1365(f)(6). Its argument is also unpersuasive be- cause, as above, the reporting requirements of the Act and Simkins’ NPDES permit are essential elements of the Clean Water Act’s enforcement procedures. Sampling data is useful, independent of ascertaining compliance with maximum discharge limitations, to enable goverment officials and others to monitor potentially harmful trends and adjust their future course of action accordingly. See 99 T.S.C. $1818(a)(4)(B) (Administrator shall have access to records at reasonable times); § 1318(b) (records shail be made 13a V. Simkins contends that the Sierra Club should be estopped from seeking civil penalties in excess of the approximate cost of an environmental survey, $130,000, which counsel for Sierra Club mentioned at trial. We dis- agree. Sierra Club requested $10,000 per day of viola- tion in its complaint, and we have held that such daily penalties can be imposed. See Gwaltney, 791 F.2d at 913-15. Sierra Club’s complaint, not the informal com- ments of its counsel at trial, constitute the formal re- quest for damages. More importantly, the district court has wide discretion in determining civil penalties which cannot be limited by trial counsel’s oral arguments. Simkins further argues that Sierra Club should be judicially estopped from money damages greater than its purported trial request for only $130,000 in damages because the Sierra Club used this request to prevail in a dispute over the admission of certain expert testimony on the actual level of pollutants in the Patapsco River near Simkins’ paper mill. It is not clear that Sierra Club’s mention of lower money damages than the eivil penalties requested in the complaint or awarded by the district courts is accurately characterized as a formal request to limit the magnitude of civil penalties.” It is available upon request to the public with limited exceptions) ; § 1318(d) (records shall be made available upon request to com- mittees of Congress). For example, Simkins’ permit required it to collect information on the levels of copper at certain monitoring locations despite the absence of a maximum quarterly, monthly, or daily average on copper in the NPDES permit. At the trial on damages, plaintiff presented evidence of unsafe levels of copper in the river near Simkins’ plant. 10 We are not convinced that Sierra Club counsel sought to limit his client’s request for civil penalties by arguing to the district court as follows: {Your Honor has! the power, we submit, to assess penalties in the amount of $130,000. We are not asking that. We are only asking that you provide monies ... for... the survey .-- to determine what the impact of this industry’s functioning on l4a clear that the district court did not rule on admissibility of the expert testimony on the basis of Sierra Club’s mention of a hypothetical number. The district court properly concluded, in the exercise of its broad discretion as to the admission of evidence, that testimony concern- ing the actual level of pollutants was relevant to its determination of what penalty should be imposed. Its ruling was not dependent upon the amount Sierra Club mentioned during oral argument as a possible assess- ment." See Simkins, 617 F. Supp. at 1131 (current com- pliance with Act may be considered in assessing amount of penalties). VI. The district judge, Judge Murray, had joined the Sierra Club in 1969, but he resigned in 1971 upon his appointment to the bench, maintaining no further con- that river site has been during the period of time they have not reported. A. 155-54. By way of summation of its admissibility argument, Sierra Club argued that it would be “entirely reasonable for the Sierra Club to ask that the industry at least pay that amount...” A. 154 (emphasis added). Sierra Club’s use of the number $130,000 appears to be not an effort to buy admissibility of its testimony by lowering its money damages request, but rather a hypothetical number used in its argument that the testimony was relevant to the district court's civil penalties determination. 11 Additionally, Simkins contends that the district court im- properly included the first 93 days of the period of noncompliance, arguing that at worst it was in noncompliance with its quarterly | reporting requirements beginning October 28, 1981. Simkins’ obli- gations under the NPDES permit extended beyond filing of quar- terly reports to the actions necessary to make filing of the DMRs possible, including installation and regular use of sampling equip- ment and the maintenance of records recording the results of moni- toring. The district court found that from the date the NPDES | permit was effective, July 27, 1981, Simkins failed from the time | the permit was made effective to comply with the permit’s specified | conditions. Thus the district court did not abuse its broad discretion in finding that the period of noncompliance commenced July 27, 1981. 15a tact with the organization. Judge Murray’s prior asso- ciation with plaintiff’s organization thus ended thirteen years before this case commenced. Judge Murray was commendably forthright in informing the litigants in pretrial conference of his prior membership in the Sierra Club. His ensuing offer to recuse himself from the case was not accepted by Simkins’ counsel. Simkins now contends that the district court erred in denying its post-trial motion for recusal, arguing that a reasonable person, knowing reasonably ascertainable facts, would harbor doubts about Judge Murray’s impartiality, see United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984), and that the district court erred in failing to make its offer of recusal on the record. We conclude that the district court’s impartiality may not be fairly questioned in this case and that the court did not err in failing to make its offer of recusal on the record. A. We agree with the district court’s holding that such prior association does not, in itself, form a reasonable basis for questioning a judge’s impartiality. See Maier v. Orr, 758 F.2d 1578, 1581 (Fed. Cir. 1985) (trial judge’s former association with Air Force does not rea- sonably raise appearance of partiality) ; Brody v. Presi- dent & Fellows of Harvard College, 664 F.2d 10, 11 (1 Cir. 1981) (trial judge’s graduation from defendant uni- versity does not in itself constitute reasonable basis for recusal motion), cert. denied, 455 U.S. 1027 (1982). As the Brody court persuasively reasoned, litigants are en- titled to a judge free of personal bias, but not to a judge without any personal history before appointment to the bench. Simkins seeks to distinguish Maier and Brody on the basis that, unlike the Air Force or a university, the Sierra Club has been “judicially noticed out” as a single- issue advocacy group. The Judicial Conference of the 16a United States has suggested that judicial officers resign from organizations such as the Sierra Club, the Anti- Defamation League of B’nai B’rith, and the National Association for Advancement of Colored People, as groups which “regularly engage in adversary proceed- ings” in federal court.’? However, it does not follow that federal judges who are former members of one of these groups may not preside in disputes in which the group is a party. To the contrary, one can infer that resigna- tion is deemed appropriate in order generally to allow former members to preside in federal court proceedings involving these expansive organizations. We have no dif- ficulty concluding that-a brief association with the Sierra Club terminated over a decade before adversary proceed- ings commenced does not form a basis for reasonably questioning a district judge’s impartiality. B. Simkins sought recusal through new counsel after an adverse judgment had been entered. arguing that Sim- kins should not be bound by its former counsel’s waiver of Judge Murray’s offer of recusal. Simkins presented evidence that its counsel had told it before the pretrial conference that the judge may have been associated with the Sierra Club and that, were this to be the case, counsel would seek the district judge’s recusal. Simkins contends that when it heard no more from its former counsel on this matter, it reasonably relied upon counsel’s silence as an indication that the judge was not a former mem- ber. It argues that its former counsel’s alleged error was compounded by the district court’s failure to make its offer of recusal on the record. This line of argument is without merit for two rea- sons. First, Simkins argument is that it reasonably relied on its former counsel’s failure to communicate the '. See Judicial Conference of the United States, Advisory Comm. on Judicial Activities, Ady. Op. 40 (Jan. 10, 1975). 17a fact of the district judge’s prior affiliation with plaintiff as an indication that the judge was not a former mem- ber. However, Simkins wishes not to be bound by its reliance on its former counsel’s tactical decision not to accept the judge’s offer to recuse himself. Ordinarily civil litigants are bound by their lawyers’ tactical deci- sions, and we see no reason to depart from this rule in this case. Especially is this so because Simkins’ motion for recusal was made after entry of adverse judgment, so that the equities do not militate in favor of Simkins. Secondly, Simkins’ assumption that the district judge was required to offer to recuse himself on the record is ineorrect. Subsection 455(e) does provide that acceptance of a litigant’s waiver of a § 455(a) offer of recusal must be preceded by a “full disclosure on the record of the basis for disqualification.” However, $ 455(a) by its terms is applicable only when a judge’s impartiality ‘might reasonably be questioned.” As we have said, we do not think the district judge’s impartiality may be rea- sonably questioned on the basis of the trial judge’s brief membership in the Sierra Club over a decade before this case was tried. His disclosure of his prior affiliation with plaintiff was therefore not required under § 455(a). It follows that the on-the-record requirement for accept- ance of waivers under § 455(e) is not applicable. Affirmed. APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil No. HM84-4019 SIERRA CLUB We SIMKINS INDUSTRIES, INC. Civil No. HM&4-4919 SIERRA CLUB Ve NEUVA ENGINEERING, INC. Civil No. HM84-4020 SIERRA CLUB V. KEYSTONE AUTOMOTIVE PLATING Co. MEMORANDUM AND ORDER iff Sierra Club has filed three citizens’ su sults pur- suant to $ 505 of the Clean Water Act. 33 U.S.C. § 1365, against defendants Simkins Industries, (hereinafter Simkins) : Ine., Civil No. HMS84-4019 Ine., Civil No. HMS84-4018 Neuva Enginee: (hereinafter Neuva): and Keystone Automotive Plating Co., Civil No HM84-4020 (hereinafter Keystone). rs acti aha yroac nree actions cnarges eeanex ifig’, The complaint in each of the the defendant with violating “the iC eo’ ° '™ s 19a terms and provisions of its National Pollutant Discharge Elimination System (NPDES) permit” in violation of the Clean Water Act, 33 U.S.C. § 1251, et seg. Specifi- cally, plaintiff alleges that the defendants’ discharge of treated wastes into the Patapsco River pursuant to NPDES permits violates the waste water discharge lim- its contained in such permits and thus violates § 301 (a) of the Clean Water Act, 33 U.S.C. § 131l(a). As relief for the alleged violations, plaintiff seeks a declaratory judgment that defendants have violated the Clean Water Act, 33 U.S.C. §§$ 1311 and 1342; an injunction prohibit- ing defendants from further violating their NPDES per- mits; a mandatory injunction requiring defendants to provide to plaintiff a copy of all future reports submitted by defendants to the state or federal government regard- ing defendants’ NPDES permits; an assessment of civil penalties of $10,000 per day for each violation against each defendant; and an award of costs, including attor- ney, witness and consultant fees. Various motions are presently pending before the courts; namely: (1) Defendant Simkins’ Motion for Entry of Judg- ment on the Pleadings; (2) Defendant Neuva’s Motion to Dismiss and/or Motion for Judgment on the Pleadings; (3) Defendant Keystone’s Motion to Dismiss; (4) Plaintiff’s Motions for Partial Summary Judg- ment as to each defendant; (5) Plaintiff's Motion for Leave to File Amended Complaint; and (6) Defendant Neuva’s Motion for Continuance. The court held a hearing on these motions on May 3, 1985, and has reviewed the memoranda submitted and is now prepared to rule. SL Backg rou nd Plaintiff Sierra has brought these actions against de- fendants Simkins, Neuva and Keystone pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. 1365. That provision provides: (a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on is own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permit- ted by the eleventh amendment to the Constitu- tion) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Adminis- trator or a State with respect to such a stand- ard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to per- form any act or duty under this chapter which is not discretionary with the Administrator. The district court shall have jurisdiction, without regard to the amount in controversy or the citizen- ship of the parties, to enforce such an effluent stand- ard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be and to apply any appropriate civil penalties under section 1319(d) of this title. This court, per Judge Young, has recently discussed the statutory scheme of the Federal Water Pollution Control Act ‘hereinafter the Clean Water Act or the Act), 33 U.S.C. $ 1251 et seqg., in Chesapeake Bay Foundation, et al, U. Betile hie m Steel Corporation, Civil No. Y 84-1620, pp. 4-6 (D. Md. May 6, 1985), and will not repeat it herein. Relevant portions of the Act having bearing on the issues at bar will be discussed where appropriate. 21a As required by § 505(b) (1) (A) of the Act, 33 U.S.C. $ 1865 (b) (1) (A), plaintiff gave notice on Aug. 31, 1984, of the alleged violations and of its intent to file suit, to the Administrator of the United States Environmental Protection Agency; to the Regional Administrator, Re- gion 8, United States Environmental Protection Agency; to the Assistant Secretary of Environmental Programs, Department of Health and Mental Hygiene; to the Direc- tor of Water Management Administration, Office of En- vironmental Programs; and to the defendants herein. After the lapse of 60 days from plaintiff’s giving of notice and after neither the Environmental Protection Agency (hereinafter EPA) nor the state commenced prosecution to redress the alleged violations, plaintiff brought the instant actions. Plaintiff Sierra Club is a national, non-profit corpora- tion with its principal place of business in San Francisco, California and with members in the Chesapeake Bay area. It is a public interest organization dedicated to protecting and conserving natural resources. Defendant Keystone, a corporation organized under the laws of the State of California, operates a business consisting of re- pairing damaged automobile bumpers. Defendant Sim- kins, a corporation organized under the laws of the State of Connecticut, operates a papermill which manufactures cardboard. Defendant Neuva, a corporation organized under the laws of the State of Maryland, operates a busi- ness consisting of the engineering, manufacturing and sale of electronic systems, components and equipment. Each of the defendants discharges treated wastes from its operations into the Patapseo River pursuant to NPDES permits issued by the Maryland Department of Health and Mental Hygiene, Office of the Environmental Programs, and authorized by the Administrator of the KPA under § 402(a)(b) of the Act, 33 U.S.C. § 1342 (a)-(b). The instant actions against defendants charge that defendants have violated the waste water discharge lim- &).) “aca its of their NPDES permits in violation of § 301(a) of the Act, 33 U.S.C. § 1311(a). Plaintiff also charges the defendants with failure to report in violation of the act. Each defendant has moved to dismiss the actions on vari- us grounds. Plaintiff has moved for partial summary judgment as to liability. The court will now examine } . ak : each ot these motions. l. Nig rod Clih v. Ke yustone A uton oriae Plating } Presently pending before the court in the above- captioned case are plaintiff’s Motion for Leave to File Amended Complaint, Defendant’s Motion to Dismiss. and Plaintiff's Motion for Partial Summary Judgment. A discussion of each motion follows. A. Plaintiff's Motion for Leave to File Amended Com- pla rit Plaintiff files the instant motion requesting the court to grant it leave to file an amended complaint. In sup- port of the motion, plaintiff contends that since it filed its original complaint charging defendant Keystone with violations of the Clean Water Act between April 1, 1976 and September 20, 1983, it has discovered additional vio- lations of the Act by defendant occurring between Octo- ber 1, 1983 and June 30, 1984. The amended complaint, in essence, only differs from the original complaint in that it alleges additional violations of the Act. Plaintiff thus requests that all of the alleged violations be tried rether in the interest of judicial economy. Defendant Keystone has not filed opposition to the motion. ‘ule 15 of the Federal Rules of Civil Procedure per- party to amend his pleading by leave of the court and requires the court to grant such leave to amend vhen justice so requires. The court believes that justice judicial economy, in the instant case. mandate per- mitting plainiiff to amend its complaint in light of the imilarity of the issues and parties. There is no reason ’ | 23a to subject identical parties to separate trials regarding the same alleged permit violations. Plaintiff’s Motion for Leave to File Amended Complaint is therefore Granted. B. Defendant’s Motion to Dismiss Defendant Keystone initially filed its Motion to Dis- miss on January 16, 1985. However, in response to plain- tiff’s Motion for Leave to File Amended Complaint filed on February 4, 1985, defendant Keystone filed a second Motion to Dismiss on February 27, 1985. Defendant Keystone seeks dismissal of the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12(b) permits dismissal for failure to state a claim upon which relief can be granted. Dismissal is not proper, however, unless it appears beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. See Jenkins v. McKeithen, 395 U.S. 411, 422 (1969) - Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court will now turn to examine de- fendant Keystone’s grounds for dismissal in light of these principles. 1. Statute of Limitations In support of its Motion to Dismiss, defendant asserts that the one-year statute of limitations provision set forth in $ 5-107 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code applies in the instant case and bars 403 of Sierra’s 453 claims that defendant violated its permit between April 1, 1976 and June 30, 1984. Keystone claims that 403 of the alleged permit violations are time-barred because they occurred more than one year prior to the filing of the suit by plaintiff. Keystone asserts also that 50 of the alleged violations occurred within the year prior to the filing of the suit and, therefore, are not barred by the statute of limitations; however, only 8 of the 50 concern allegedly illegal discharges for which relief may be sought. See 24a Memorandum in Support of Motion to Dismiss, pp. 6, 9-10. Alternatively, Keystone argues that if the court finds the one-year statute is inapplicable, then Mary- land’s three-year statute of limitation applicable gen- erally to civil actions would govern plaintiff’s claim. /d. at 11. In opposition to defendant’s Motion to Dismiss, Sierra argues that 28 U.S. § 2462, the statutory period appli- cable in government actions to recover civil penalties, applies to the citizen suit provision of the Clean Water Act. Plaintiff argues that because it is seeking the same relief as would the government, specifically, civil penal- ties for past violations and future compliance, the same statute of limitations should apply to plaintiff’s action as would apply to an action by the government. Because the interest of the government and plaintiff citizen are identical, plaintiff contends that the five-vear statute of limitations, as set forth in 28 U.S.C. § 2462, is applicable and not the state statute of limitations as urged by de- fendants. Plaintiff's Memorandum in Opposition to De- fendant’s Motion to Dismiss, pp. 3-5. The issue before the court is whether, in the absence of a limitations provision in a federal statute, a federal court should apply the analogous state statute of limita- tions or a federal statute of limitations to a citizen suit instituted under § 505 of the Clean Water Act. This court recently has decided this precise issue. On April 30, 1985, Judge Young of this court, in Chesapeake Bay Foundation v. Bethlehem Steel Corpora- tion, Civil No. Y84-1620 (D. Md. May 6, 1985), held that 28 U.S.C. $ 2462 applies to citizen suits for civil penalties as well as government actions for penalties under the Clean Water Act.' The court noted that where 128 U.S.C. § 2462 provides: Except as otherwise provided by Act of Congress, an action. suit or proceeding for the enforcement of any civil fine, penalty 25a a federal statute fails to provide a limitations period, federal courts generaily apply the period of limitations most appropriate under state iaw; however, where appli- cation of a state statute would frustrate a federal policy underlying the cause of action under consideration, the general rule concerning application of an appropriate state statute of limitations should not apply. Chesapeake at 15-16, 17 (citing Johnson v. Railway Express Agency, 421 U.S. 454, 462, 465 (1925)). The court reasoned that application of a state statute of limitations would frustrate several policies of the Clean Water Act because such application would produce non-uniform citizen suit enforcement from state to state and would also produce non-uniform enforcement as between citizens and the government. Chesapeake, at 18-22. The court then ruled that even though 28 U.S.C. § 2462 was designed to apply to suits brought by the government, the five-year limita- tions period set forth in the statute is equally applicable in a citizen suit for civil penalties under the Clean Water Act. The court reasoned: The plaintiffs are suing as private attorneys general, and they seek the enforcement of federal law. Al- though the statute provides that a citizen sues “on his own behalf,” any penalties recovered from such an action are paid into the United States Treas- ury.... [I]n this action a plaintiff recovers noth- ing. Any benefit from the lawsuit, whether injunc- tive or monetary, inures to the public or to the United States. The citizen suit provision was de- signed to supplement administrative enforcement, not to provide a private remedy. Under these cir- cumstances it seems most appropriate that the same or forfeiture, pecuniary or otherwise. shall not be entertained unless commenced within five (5) years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. = | J 26a statute of limitations applies to a citizen action as to a federal administrative action. Chesapeake at 24-25. Accord Friends of the Earth, et al. v. Facet Enterprises, Inc., Civil No. 84-857T (W.D. N.Y. ec. 28, 1984). Compare Chesapeake and Friends of the Earth, supra, (applying five-year federal stat- ute of limitations found in 28 U.S.C. § 2462) with Student Public Interest Research Group of New Jersey, et. al. v. Tenneco Polymers, 602 F. Supp. 1394, 1398-99 (D. N.J. 1985) (refusing to apply both state statute of limitations and federal statute of limitations). The court agrees that the five-year federal statute of limitations in 28 U.S.C. $ 2462 applies to this instant citizen suit for civil penalties and relies upon the ra- tionale articulated by Judge Young of this court in Cheaspeake.* 2. Section 505(b) In further support of its Motion to Dismiss, Keystone asserts that $ 505(b) of the Clean Water Act also bars plaintiff’s suit because the state has commenced and is diligently prosecuting administrative proceedings against Keystone based upon the alleged violations of Keystone’s NPDES permit. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, pp. 11-18, 15. In response, plaintiff argues that §505(b) of the Clean Water Act does not bar the present suit because the state’s admin- istrative proceeding was commenced after plaintiff filed its complaint. Plaintiff filed suit on October 31, 1984 and the State of Maryland issued its “Notice of Viola- tion” on December 13, 1984. Moreover, plaintiff asserts that even if the state’s action preceded plaintiff’s suit, plaintiff's suit still would not be barred because the * The court instructs plaintiff to file a memorandum by August 1, 1985 indicating which claims, if any, are time-barred by the five- year statute of limitations. tia cel 27a state’s administrative hearing is not tantamount to a “diligent prosecution” in a court within the meaning of $ 505(b). Id. at 6-8. Section 505(b) of the Clean Water Act, 33 U.S.C. $ 1365(b), provides that no citizen suit can be main- tained “if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.” Prelimi- narily, the court notes that it finds the state’s adminis- trative proceeding was instituted after plaintiff com- menced its action. Significantly, plaintiff filed its com- plaint on October 31, 1984 and the state filed its Notice of Violation on December 31, 1984. Defendant argues that the state’s administrative proceeding was instituted two months prior to plaintiff’s filing of its Amended Complaint on February 4, 1984. The court finds this argument unpersuasive. The dispositive date is that on which the original complaint was filed, not the date on which the plaintiff sought amendment of the complaint. Plaintiff’s suit was instituted prior to the state’s institu- tion of administrative proceedings aganst defendant Key- stone and, therefore, is not barred by §505(b) of the Clean Water Act. Secondly, the court also notes that it does not find the state’s administrative proceeding equivalent to a diligent prosecution in a court for purposes of § 505(b) of the Clean Water Act. The court recognizes that under cer- tain circumstances an administrative proceeding may be considered the equivalent of court action and thus bar citizen suits, see Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 961 (1979); however, in order to be accorded court status, a state agency must possess the full remedial powers inherent to traditional judicial courts. In the instant case, plain- 28a tiff seeks a declaratory judgment, injunctive relief, civil penalties and costs. Keystone notes that the state in an administrative proceeding has the power to revoke a dis- charge permit, impose civil penalties, issue orders requir- ing corrective action within a specified time and execute a consent order. However, Keystone also notes that the state agency may only seek injunctive relief from a court. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, p. 14. The state agency, therefore, does not possess the full remedial powers available to a court but must seek the injunctive relief plaintiff requests in a court. The state court proceeding possibly may be in- adequate to fully protect the plaintiff herein and there- fore would not be so diligent as to preempt the citizen suit. The court thus believes that it would not be appro- priate to denominate the state agency as a court within $505(b) and, accordingly, will not bar plaintiff’s suit. Cf. Student Public Interest Research Group of New Jer- sey, Inc. v. Monsanto Company, 600 F. Supp. 1479, 1482 (D. N.J. 1985). See also Student Public Interest Re- search Group of New Jersey v. Fritzsche, Dodge & Ol- cott, 759 F.2d 1131 (3d Cir. 1985): Brewer v. City of Bristol, 577 F. Supp. 519 (E.D. Tenn. 1983). 3. Civil Penalties Keystone asserts that $505 of the Act entitles Sierra as a citizen plaintiff to prospective relief only for con- tinuing violations of the Act and not civil penalties for alleged permit violations occurring prior to the filing of the suit. Defendant Keystone’s Memorandum in Support of Motion to Dismiss, pp. 15-19, 27. Plaintiff, in turn, contends that the language of the Act, the legislative history of the Act, and court constructions of the Act Support the proposition that citizens may recover civil penalties for past permit violations. Plaintiff’s Response to Motion to Dismiss, pp. 8-14. Moreover, plaintiff con- tends that it has sufficiently alleged continuing violations to warrant injunctive relief. 29a Whether civil penalties for past violations may be awarded in a citizen’s suit under the Clean Water Act has not been addressed by this court. However, a num- ber of other federal courts have addressed the issue and have determined that courts. in fact, may assess civil penalties for violations of the Act alleged to have oc- curred prior to the filing of the case. See Illinois v. Out- board Marine, Inc., 680 F.2d 473, 480-81 (7th Cir. 1982); Student Public Interest Research Group of New Jersey v. Monsanto, 600 F. Supp. 1474, 1476-77 (D. NJ. 1985); Sierra Club v. Aluminum Company of America, 585 F. Supp. 842, 853-54 (N.D. N.Y. 1984); Friends of the Earth v. Facet Enterprises, Civil No. 84-357T (W.D. N.Y. 1984). These courts have rejected defendants argu- ment that plaintiff’s recovery should be limited to pros- pective relief and have conclusively held that § 1365(a) of the Clean Water Act authorizes citizen suits for im- position of civil penalties for past violations. The court agrees with the ruling of these cases and adopts their reasoning in full. The court also notes that it finds the cases cited by defendant in support of its position in- apposite because such cases involved the recovery of dam- ages and not the recovery of civil penalties. For the foregoing reasons, the court finds that defend- ant has failed to show beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Defendant Keystone’s Motion to Dis- miss is therefore Denied. C. Plaintiff's Motion for Partial Summary Judgment Plaintiff seeks summary judgment on the issue of liability contending that defendant has not complied with its NPDES permit. In support of its motion, plaintiff contends that defendant has violated a condition of its NPDES permit and, thus has violated the Act, specifi- eally, $$ 301 and 402 of the Act, 33 U.S.C. §§ 1311, 1342; that plaintiff has standing to bring the instant action; 30a the defendant has admitted in its DMRs? its ‘violations of its NPDES permit for which liability may attach; and that plaintiff is entitled to judgment as a matter of law because no genuine issue as to any material fact about liability exists in light of Keystone’s admissions. In opposition to plaintiff’s motion for partial summary judgment, defendant Keystone argues that the majority of Sierra’s claims are barred by the applicable statute of limitations: that Sierra’s instant proceedings are barred by § 505(b) of the Clean Water Act because the State of Maryland has commenced and is diligently prosecuting Keystone for alleged violations of its permit; and that Sierra is not entitled to the imposition of civil] penalties for past permit violations, Moreover, defend- ant argues that further proceedings by Sierra are barred by the defendant’s entry into a consent decree with the State whereby the defendant agreed to remit to the state a penalty in the amount of $10,000 for alleged violations of Keystone’s NPDES permit. Defendant further argues that Sierra’s claims of permit violations amount to al- legations of improper recording or technical violations and not substantive Violations by defendant of its NPDES permit. Finally, defendant argues that Sierra has not demonstrated that it has standing to prosecute its claims against Keystone, Summary judgment is appropriate only if the plead- ings “show that there is no genuine issue as to any ma- terial fact and that the moving party is entitled to a judgment as a matter of law.” The court believes that Keystone’s pleadings do not raise material factual dis- putes and that the law weighs in favor of plaintiff Sierra Club. Both the factual] and legal bases for the court’s findings are set forth infra, The essential facts in the instant case are uncon- troverted. The Maryland Water Resources Administra- 3 Discharge Monitoring Reports. 3la tion issued NPDES permit number MD0025046 to de- fendant in accordance with § 402 of the Act on January 29, 1976. The permit authorizes defendant to discharge limited amounts of the treated waste from its operations into the Patapsco River in accordance with the provisions of the permit. The permit also requires defendant to file periodic Discharge Monitoring Reports (DMRs) indicat- ing the contents and quality of its wastewater discharge. Both Keystone’s current NPDES permit and DMRs have been authenticated. The DMRs indicate that Keystone has committed excessive discharges and has failed to report in various instances. Having found no genuine issue as to a material fact, the court will now examine the law bearing on the issue at bar. As this court stated in Chesapeake, “Tslection 308 of the Act, 33 U.S.C. § 1318, provides that the Administra- tor of the EPA shall require all NPDES permit holders to monitor their discharges. Permit holders must main- tain records of the results of this monitoring and report the results to the relevant state or federal] agency in DMR. 40 C.F.R. 122.41(1) (4) (i). Permit holders must certify the accuracy of information contained in their DMRs, 40 C.F.R. 122.22. The DMRs must contain a complete and accurute record of pollutant monitoring by the permit holders. 40 C.F.R. ss 122.22(d), 122.41(1) (4) (1).” Chesapeake Bay Foundation v. Bethlehem Stee! Corp., Civ. No. Y84-1620, p. 29 (D. Md. May 6, 1985). Courts generally have held that reports or records which -e required to be kept by law, may be used to establish a defendant’s liability. Chesapeake, Supra, at 30; Stu- dent Public Interest Research Group o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0307%3A1. Public record. Not legal advice.