Amicus Curiae Brief — Simkins Industries, Inc. v. Sierra Club

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(+. Supretie Court, U.S. |

In the Supreme Court of the Uniter States

OCTOBER TERM, 1988

SIMKINS INDUSTRIES, INC., PETITIONER

SIERRA CLUB

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

ANNE S. ALMY

AMELIA S. SALZMAN

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether Section 505 of the Clean Water Act, 33

U.S.C. 1365, which allows a private citizen to bring a civil

action to enforce the Act’s effluent limitations and to seek

imposition of appropriate civil penalties, violates Article

III’s standing requirement.

2. Whether the court of appeals erred in concluding

that petitioner was in violation of the Clean Water Act.

(1)

TABLE OF CONTENTS

Page

Statement a eine ri ri l

Oe eee 7

Conclusion ........ 18

TABLE OF AUTHORITIES

Cases:

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 1]

Allen v. Wright, 468 U.S. 737 (1984) . s

Amadeo v. Zant, 108 S. Ct. 1771 (1988) ........ Pe 15

Anderson v. Bessemer City, 470 U.S. 564 (1985) ....... 15

Chesapeake Bay Foundation, Inc. yv. Gwaltney of Smith-

field, Ltd., 791 F.2d 304 (4th Cir. 1986), vacated and re-

manded, 108 S. Ct. 376 (1987), on remand, 844 F.2d 170

(4th Cir. 1988), on remand, 688 F. Supp. 1078 (E.D.

VA. 1988), appeal pending, No. 88-1317 (4th Cir.) . Z, 3,

6, 10, 12, 13, 14, 15, 16

Conley v. Gibson, 355 U.S. 41 (1957) ....... Pes 16

Dandridge v. Williams, 397 U.S. 471 (197 0) Pars 14

Data Processing Service v. Camp, 397 U.S. 150 ( 1970) . Y

Fountain v. Filson, 336 U.S. 681 (1949) . 14

Friends of the Earth v. Eastman Kodak Co., 834 F.2d

295 (2d Cir. 1987) ..... vbghy ene 3

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91

J. ee weeer 8

Hallstrom v. Tillamook County, cert. granted, No. 88-42

(Mar. 20, 1989) vhf 3

Hamker v. Diamond Shamrock Chemical Co., 756 F.2d

392 (Sth Cir. 1985) ........ 5

Helvering v. Gowran, 302 U.S. 238, (1937) 14

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709

(). | ee are es . 15

Jaffke v. Dunham, 352 U.S. 280 (1957) 14

Langnes v. Green, 282 U.S. 531 (1931) 14

Meese v. Keene, 107 S. Ct. 1862 (1987) 8

Middlesex County Sewerage Authority v. National Sea

Clammers Ass’n, 453 U.S. 1 (1981) 3, 43

Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807

F.2d 1089 (Ist Cir. 1986), cert. denied, 108 S. Ct. 484

Li) eee 12

(111)

Cases — Continued: Page

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ 15, 17

Sierra Club v. Morton, 405 U.S. 727 (1972) ........ 8,9, 11, 13

Sierra Club v. Union Oil Co., 853 F.2d 667 (9th Cir.

WE een pian cant Ceca OOo Las ee 15

Simon v. Eastern Kentucky Welfare Rights Organization,

a Ris I hi er eis Boe ae 8

Student Public Interest Research Group, Inc. v. AT&T

Bell Laboratories, 617 F. Supp. 1190 (D.N.J. 1985) ... 12

Thigpen v. Roberts, 468 U.S. 27 (1984) .......0......... 14

Tully. United States, 481 U.S. 412 (1987) .............. 10

United States v. American Ry. Express Co., 265 U.S. 425

SG aaa Sr ie Be ha ee nC Reta rn aD me na 14

United States v. New York Telephone Co., 434 U.S. 159

JL LiL) Gea ITY tert Pe Meth Sete y poy Eat e drargeege) Sy aanaes WN Codes 14

United States v. Phosphate Export Ass’n, 393 U.S. 199

Lo | EAR ARSS teare pOe OL ara he a6 A Me Aka Renn ekg PRR tL ee 11

United States v. W.T. Grant Co., 345 U.S. 629 (1953) ... ll

Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464 (1982) .. 8

Warth v. Seldin, 422 U.S. 490 (1975)... 2 .00002.00..... 8,9

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1981)... .. 10

Constitution, statutes and regulations:

Clean Water Act, 33 U.S.C. 1251 ef seq.:

ASRS ae P| rs

eS tw. eR | | a

§ 308(a)(4)(A), 33 U.S.C. 1318(a)(4)(A) 2.2008...

ERS Oe eS) | es

MER ® eg en

Sos, 2S USC SIIB)... . once ve esc russ

eo ME BEF Oe 6) -

5 Sarees, 28 US BID) © cic te Be

S Sere a ee, UI i fe ee SOc.

SF ns ee Oe RR ee Sc oi hk he ee

§ 402(aX!), 33 U.S.C. 1342faMi) ............

§ 402(a)(2), 33 U.S.C. 1342(a)(2) .. 2.2...

yMaiIvy NM Nw Ww tv

—_ —

—

mM ivnmw ©

Statutes, regulations and rule — Continued: Page

§ 402(b)(7), 33 U.S.C. 1342(b)(7) .. i ee eee 2

2305, 33 Uh. tee s: mf? Seer SS

13, 14, 15

650). 335 U.S.C. £965) 2... cnc ec. he eee

§ $05(b), 33 U.S.C. 1563(b) ....... Perrrr eras 3

5 Ses, 29 GA. BOE oc eo eee 3, 12

Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat.

| Re ore rye Ere eee re Ror ere |

08 UO Oe 00 sec ne eo ees ee 5

Be me a ey arr ee er era eee ore, 10

Resource Conservation & Recovery Act of 1976, 42

3A. Sree ces ces 2k podses ree 3

DORIS A... SR 6 ence e eens reed AAP»

40 C.F.R. Pt. 122, Subpt. C:

Sectiog 122.41... ... Oe Ne aie, etn eee geen ne rr 2

Section 422.4i4a) ... 24.245. . Aaa ee 2

Section 122.41(j) ..... Se pe pies 2

Section 122.41(l) ........ OTe 2

Sectege $23.29 ....... 2

Sup. Ct. R. 21.1(a) . eens RA Any Nant fica gtar sacar 17

Miscellaneous:

C. Wright, A. Miller & M. Kane, Federal Practice and

Procedure (1983) ...... ee nd ee eS 14

6 J. Moore, Moore’s Federal Practice (1988) ............ 4. 35

Comment, The Rise of Citizen-suit Enforcement in En-

vironmental Law: Reconciling Private and Public

Attorneys General, 81 N.W.U.L. Rev. (1987) ....... 10

Jn the Supreme Court of the Cnited States

OCTOBER TERM, 1988

No. 88-660

SIMKINS INDUSTRIES, INC., PETITIONER

SIERRA CLUB

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order inviting the

Solicitor General to express the views of the United States.

STATEMENI

Petitioner Simkins Industries, Inc., operates a paper mill in

Catonsville, Maryland. Pursuant to the Clean Water Act, 33

U.S.C. 1251 et seqg., the State of Maryland issued Simkins a per-

mit that allows the company to discharge waste water into the

Patapsco River. Respondent Sierra Club determined that

Simkins was in violation of its permit requirements and com-

menced this action for injunctive relief and civil penalties under

the Clean Water Act’s citizen enforcement provisions. 33

U.S.C. 1365(a)(1). The district court concluded that Simkins

had violated its permit requirements and assessed a civil penalty

of $977,000. The court of appeals affirmed that judgment.!

' After this suit was filed, Congress enacted the Water Quality Act of 1987,

Pub. L. No. 100-4, 101 Stat. 7, which extensively amended the Clean Water

Act. The amendments have not yet been incorporated into the official version

of the United States Code. All reterences to 33 U.S.C. shall be to 33 U.S.C. as

amended by the Water Quality Act

1. Congress enacted the Clean Water Act “to restore and

maintain the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. 1251(a). This Court’s decision in

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,

Inc., 108 S. Ct. 376 (1987), describes the Act’s enforcement

mechanisms. Section 301(a) prohibits the discharge of any

pollutant into navigable waters except as authorized by other

specific sections of the Act. 33 U.S.C. 1311(a). Section 402

establishes the National Pollutant Discharge Elimination

System (NPDES) and authorizes the Environmental Protection

Agency (EPA) or a State that has instituted an EPA-approved

permitting program to issue permits allowing the discharge of

pollutants. 33 U.S.C. 1342.

NPDES permits typically require the permittee to meet

specific quantitative effluent parameters based on daily and

monthly averages. They also impose self-monitoring and infor-

mation reporting requirements. See 33 U.S.C. 1318(a)(4)(A),

1342(a)(1) and (2). EPA has promulgated regulations identify-

ing conditions applicable to all NPDES permits. See 40 C.F.R.

122.41, 123.25. The regulations provide that a permittee musi

comply with the permit (40 C.F.R. !22.41(a)), retain records of

all monitoring information for at least three years (40 C.F.R.

122.41(j)), and disclose monitering results in discharge monitor-

ing reports (DMRs) (40 C.F.R. 122.41(1)). DMRs are generally

available to the public. See 33 U.S.C. 1318(b).

Section 309 of the Clean Water Act provides that a violation

of any condition of an NPDES permit constitutes a violation of

the Act. See 33 U.S.C. 1319(a). Section 309 further provides

that the EPA may correct permit violations by issuing ad-

ministrative compliance orders and imposing administrative

civil penalties (33 U.S.C. 1319(a) and (g)), by requesting the At-

torney General to bring civil actions for injunctions or civil

penalties (33 U.S.C. 1319(b) and (d)), or by seeking criminal

sancuions (33 U.S.C. 1319(c)). The States that are authorized to

issue NPDES permits may seek or impose similar sanctions in

accordance with state law. See 33 U.S.C. 1342(b)(7). The per-

mittee’s DMRs generally are admissible as evidence of permit

violations. See, e.g., Friends of the Earth v. Eastman Kodak

Co., 834 F.2d 295, 298 (2d Cir. 1987).

Section 505 of the Clean Water Act further declares that, in

the absence of federal and state enforcement, a private citizen

may commence a civil action against any person “alleged to be

in violation of” the conditions of its NPDES permit (33 U.S.C.

1365(a)), provided that — among other requirements —the citizen

has “an interest which is or may be adversely affected” (33

U.S.C. 1365(g)). In Gwaltney, this Court concluded that Sec-

tion 505 does not allow a private person to commence a citizen

suit based on a wholly past violation; instead, his complaint

must contain “a good-faith allegation of continuous or intermit-

tent violation.” 108 S. Ct. at 385. If a citizen prevails in his ac-

tion, Section 505 specifically authorizes district courts to en-

force the permit requirements and to impose appropriate civil

penalties under Section 309(d), which are payable only to the

United States Treasury. 33 U.S.C. 1365(a). See Gwaltney, 108

S. Ct. at 379, 383; Middlesex County Sewerage Authority v. Na-

tional Sea Clammers Ass’n, 453 U.S. 1, 14 0.25 (1981).

2. On August 31, 1984, the Sierra Club notified Simkins,

the Administrator of EPA, and the Maryland State Department

of Health and Mental Hygiene of its intention to commence a

Clean Water Act citizen suit against Simkins. Pet. App.

76a-79a.2 The notice alleged that Simkins “has violated and con-

tinues to violate ‘an effluent standard or limitation’ under Sec-

tion §05(a)(1)(A) of the Act” by failing to comply with its state-

issued NPDES permit. Pet. App. 76a. The notice specifically

alleged that for a period of 32 months, extending from August

1, 1981, to March 31, 1984, Simkins violated its permit by fail-

ing to file required DMRs. /d. at 76a-78a.

2 Section 505 generally requires a person to provide 60 days’ notice of his in-

tent to Sue and prohibits the perso trom bringing a citizen suitit the EPA oF a

State is diligently prosecuting a compliance acuion. 33 U.S.C. 1365(b). This

Court recently granted a petition for a writ of certiorari to determine whethe!

a citizen’s failure to comply with a similar 60-day notice requirement contained

in the Resource Conservation and Recovery Act of 1976, 42 U.S.¢

6972(b)(1), requires dismissal of the acuon. See Alal/stromy. Tillamook Coun

fy, cert. granted, No. 88-42 (Mar. 20, 1989)

Sixty-one days later, the Sierra Club commenced its citizen

Suit against Simkins. See Pet. App. 7la-75a. The Sierra Club’s

complaint alleged that the interests of the organization’s

members “have been, are being and will be adversely affected by

the failure of Defendant, Simkins Industries, Inc., to comply

with its NPDES permit requirements” (id. at 73a). It further

alleged that Simkins “has violated its 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 Ex-

hibit A and incorporated by reference herein” (id. at 74a). Sierra

Club requested the district court to declare Simkins to have

violated the Clean Water Act, to enjoin Simkins from operating

its plant “in such a manner as will result in further violation of

Defendant’s NPDES permit,” to require Simkins to provide the

Sierra Club with a copy of all future DMRs, and to assess civil

penalties and attorneys’ fees (id. at 74a-7Sa).

Simkins moved for entry of judgment on the pleadings, con-

tending: (1) the Sierra Club’s members are not injured by

Simkins’ failure to file DMRs; (2) the complaint failed to state a

claim because it did not allege a violation of an effluent stand-

ard or limitation; (3) the action was foreclosed by Simkins’

prompt corrective action; and (4) because Simkins had begun to

submit DMRs, the request for injunctive relief was moot and

the court, therefore, could not assess civil penalties. C.A. App.

33-34. Shortly thereafter, the Sierra Club moved for partial

summary judgment on the ground that there is no genuine issue

of fact concerning whether Simkins had violated the Clean

Water Act. Jd. at 68.

The district court denied Simkins’ motion for judgment on

the pleadings and granted the Sierra Club’s motion for partial

summary judgment. Pet. App. 37a-4la. The court first con-

cluded that the Sierra Club had standing to bring the action (id.

at 38a-39a) based on an affidavit that the organization had sub-

mitted at argument on the motions (C.A. App. 85).3 The court

’ The affidavit consisted of the sworn testimony of John Railey, one of the

Sierra Club’s members, stating in relevant part:

My interest, use or enjoyment of the Patapsco River and surrounding

area includes preserving the health, safety and welfare of the river basin,

‘nm

further concluded that Simkins had repeatedly violated the

Clean Water Act by its admitted failure to file DMRs and that

the Sierra Club could maintain a suit based on past violations

(Pet. App. 39a). The court acknowledged a prior decision

dismissing a citizen suit based on a past violation (/bid., citing

Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392

(Sth Cir. 1985)). But the court read that case “to stand for the

proposition that a court lacks jurisdiction to impose penalties

for a single past violation ended long before the filing of the

suit” (Pet. App. 39a). It found that here the “defendant is not a

one-time violator of the Act but a multiple violator of its

NPDES permit” (id. at 40a). The court observed that Simkins

“has admitted that it failed to file DMRs as required by its per-

mit” (ibid.) and concluded that “[s]}ummary judgment as to

liability is therefore appropriate” (/d. at 41a). The court subse-

quently conducted a bench trial on the appropriate remedy, and

entered a memorandum opinion and order reaffirming its prior

order of partial summary judgment, assessing a civil penalty

against Simkins of $977,000, and granting the Sierra Club an

award of attorneys’ fees. /d. at 42a-57a. In calculating an ap-

propriate civil penalty, the court observed that Simkins had

failed to file DMRs during the 977-day period set forth in the

Sierra Club’s complaint and that the Clean Water Act author-

ized a penalty of up to $10,000 per day. /d. at 55a.* The court

assessed a penalty of $1,000 per day, concluding that “this

assessment will serve as a sufficient deterrent, will adequately

preserving marine life and water integrity within the river, and

eliminating odorous and unsightly illegal pollution. | regularly hike along

the river. My activities and interests with respect to the Patapsco River

have been adversely attected physically, aesthetically and emotionally 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.

C.A. App. 112.

+ The Water Quality Act of 1987 amended the Clean Water Act’s civil penal-

ty provisions to increase the maximum penalty to $25,000 per day. See § 313,

I | d

101 Stat. 45.

compensate for defendant’s past actions, and will protect the in-

terests of all the parties” (/bid.).°

The court subsequently rejected Simkins’ motion for recon-

sideration and other post-trial relief (Pet. App. 58a-67a).

Simkins then appealed, contending, inter alia, that Sierra Club

lacked standing under Article Ill of the Constitution to seek

assessment of civil penalties payable to the U.S. Treasury and

that the district court erred in assessing civil penalties for purely

past violations. See Pet. 7. The court of appeals postponed

resolution of the matter pending this Court’s decision in

Gwaltney and thereafter affirmed the district court’s decision.

Pet. App. la-1!7a.

The court of appeals first held that the Sierra Club had met

Article III’s requirement that a plaintiff allege an injury fairly

traceable to the alleged wrongdoing and likely to be redressed by

a tavorable decision. Pet. App. Sa-8a. The court concluded that

the Sierra Club had adequately demonstrated, through the at-

fidavit submitted to the district court (see note 3, supra), that

Simkins’ violations injured the organization’s members. Pet.

App. 6a-7a. The court further concluded that the judicial

remedy —imposition of civil penalties— would redress that in-

jury by deterring future violations. Pet. App. 7a-8a.

The court then addressed whether the district court’s state-

ment that a citizen may maintain a suit based on past violations

> The Sierra Club’s complaint had included a request that the court

“{eJnjoin defendant trom operating its hazardous waste treatment plant [sic]

*** in such a manner as will result in further violation of Defendant's

NPDES permit” (Pet. App. 75a). The Sierra Club apparently did not seek that

relief at trial. See C.A. App. 140-145 (opening statement); id. at 253-270,

296-301 (excerpts of closing argument); id. at 359-374 (proposed findings of

fact and conclusions of law). The Sierra Club instead requested that the civil

penalties be paid to the State of Maryland for “cleaning up the Chesapeake

Bay and its estuaries” and that the assessment include a sum of approximately

$52,000 to conduct a survey to determine pollution levels in the river bed sedi-

ment. /d. at 373 & n.2; see also id. at 143-144, 153-154, 172-177, 267-268. The

district court noted testimony concerning the need for an environmental

survey (Pet. App. S5la-52a); but the court’s order gave no directions concern-

ing Where the civil penalties Would be paid or how they would be used (id. at

57a). See also id. at 2a-3a n.1.

required reversal in light of this Court’s decision in Gwaltney,

which prohibited citizen suits based upon wholly pasi viola-

tions. Pet. App. 8a. The court of appeals determined, based on

the district court record and the parties’ supplemental

memoranda, that “Sierra Club has alleged in good faith and

proved a continuing violation within the meaning of Gwaltney”

(id. at 9a). The court interpreted the complaint as alleging an

ongoing violation (/bid.) and further concluded that Simkins’

inability at the time of suit to submit a complete DMR and to

produce required records of past monitoring established an

Ongoing state of noncompliance (/d. at Ya-11a).

The court of appeals rejected Simkins’ other arguments (Pet.

App. 12a-17a) and later denied the company’s petition for

rehearing and suggestion for rehearing en banc (/d. at 69a-70a).

DISCUSSION

Simkins seeks review of the court of appeals’ decision on two

grounds. Simkins first contends that “Section 505 of the Clean

Water Act abridges the Article II requirement of ‘redressability’

by authorizing private citizens to seek a judicial award of

penalties to the United States Treasury” (Pet. 10). Simkins next

argues that the court of appeals erred in concluding that the

Sierra Club had alleged and proved that Simkins was in continu-

ing violation of its NPDES discharge permit. Neither argument

presents an issue warranting this Court’s review. Simikins’ first

argument rests largely on a mistaken understanding of the rela-

tionship between this Court’s standing decisions and Section 505

of the Clean Water Act. Simkins’ second argument, which turns

on the record in this case, does not present a question of general

applicability or importance. In any event, the court of appeals’

resolution of these matters appears basically correct and does

not contlict with any decision of this Court or another court of

appeals.

1. Article Il] of the Constitution confines the federal courts

to adjudicating actual “cases” or “controversies.” This Court

has defined that limitation through a number of doctrines, in-

cluding the “standing” requirement, that preserve the “separa-

tion of powers” and “ ‘the proper —and properly limited —role

of the courts in a democratic society.’ ” Allen v. Wright, 468

U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490,

498 (1975)). See Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464,

471-476 (1982).

The standing inquiry includes elements that are compelled by

Article II] and elements that this Court has adopted in the exer-

cise of prudent judicial self-restraint. See, e.g., Allen, 468 U.S.

at 750-751; Valley Forge, 454 U.S. at 474-475. This Court has

described the “core” constitutional element, which directly im-

plements Article III’s “case” or “controversy” requirement, as

follows:

A plaintiff must allege personal injury fairly traceable to

the defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief.

Allen, 468 U.S. at 751. See Meese v. Keene, 107 S. Ct. 1862,

1869 (1987); Valley Forge, 454 U.S. at 472; Gladstone, Realtors

v. Village of Bellwood, 441 U.S. 91, 100 (1979); Simon v.

Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38

(1976). Congress may not confer standing to sue where the Arti-

cle III requirement has not been met. See Gladstone, 441 U.S. at

100; Simon, 426 U.S. at 38-39; Sierra Club v. Morton, 405 U.S.

727, 732 n.3 (1972). Simkins asserts that Congress has violated

that principle in the Clean Water Act by authorizing private

plaintiffs to seek assessment of civil penalties.°

¢ Simkins contended below that the Sierra Club had failed to satisty the Ar-

ticle IIL requirement that the “plaintiff must allege personal injury fairly

traceable to the defendant’s allegedly unlawful conduct.” Ad/en, 468 U.S. at

751. The Sierra Club’s vague and conclusional affidavit (see note 3, supra) is

arguably insufficient to satisfy that constitutional requirement. Of course, the

reporting requirement immediately at issue in the case is not an end in itself,

but is a means of assuring compliance with the Act’s effluent limitations

(which is presumably the Sierra Club’s interest). In any event, Simkins has not

raised the question of injury-in-fact in its petition, so it is not before this

Court. Moreover, that fact-specific issue would not warrant this Court's

review.

Simkins acknowledges that Article III’s standing requirement

does not prevent Congress from authorizing a person to bring a

civil action under Section 505 of the Clean Water Act to enjoin

Ongoing violations of the Act that cause him injury. See Pet.

11-12. Indeed, it is clear beyond dispute that a person who uses

a navigable waterway for recreation or other purposes can

establish his Article III] standing by showing that: (1) he is in-

jured because the ongoing violations interfere with his use of the

river; and (2) enjoining the violations will likely redress his in-

jury by forcing the violator to discontinue its injurious conduct.

See Sierra Club v. Morton, 405 U.S. at 734-741.’

Simkins contends, however, that Article III standing is lack-

ing when the awarded relief consists only of penalties payable to

the Treasury because “[a] citizen who sues on his own behalf for

penalties, which he is not entitled to share, cannot demonstrate

‘that he personally would benefit in any tangible way from the

court’s intervention.’ ” Pet. 11 (quoting Warth, 422 U.S. at

508). We disagree. A citizen plaintiff may directly benefit from

the imposition of a civil penalty — even if he does not receive the

proceeds — because the assessment, like an injunction, deters the

violator from continuing the violations that prompted the plain-

tiff to file the suit. That benefit, which rectifies the plaintiff's in-

jury, is sufficient to satisfy Article III’s “redressability” require-

ment.

’ This Court indicated in Sierra Club vy. Morton, supra, that Congress mzy

confer standing on persons to assert aesthetic, conservational and recreational

interests, provided that “the party seeking review be himself “.nong the in-

jured.” 405 U.S. at 734-735, 738. See also id. at 741 n.1 (Douglas, J., dissent-

ing) (“no doubt exists that ‘injury in fact’ to aesthetic’ and ‘conservational’ in

terests is here sufficiently threatened to satisfy the case-or-controversy

clause”); Data Processing Service v. Camp, 397 U.S. 150, 154 (1970) (“stand

ing may stem trom [noneconomic values] as Well as from the economic injury

on which petitioners rely here”)

* Contrary to Simkins’ repeated assertions (Pet. 10-15), there is no Article

IIT significance in this context to the fact that the civil penalties are payable to

the Treasury. If a court attempted to secure compliance through the issuance

of an injunction, the court would similarly rely on the threat of monetary

penalties payable to the Treasury (in the form of contempt sanctions) to assure

that the injunction were obeyed. Thus, the injunctive remedy and the civil

Congress has satisfied Article II] by authorizing citizens to

secure exactly that type of redress. As this Court explained in

Gwaltney, Section 505 of the Clean Water Act authorizes

private persons to bring judicial actions to compel compliance

with the Act. See 108 S. Ct. at 381, 382, 383-384. And, as the

Court observed in another private enforcement action,

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), “[a]n in-

junction is not the only means of ensuring compliance” (/d. at

314). The Clean Water Act “provides for fines and criminal

penalties” (/bid., citing 33 U.S.C. 1319(c) and (d)) and “permits

the district court to order that relief it considers necessary to

secure prompt compliance with the Act” (456 U.S. at 320).?

In the case of citizen suits, the Clean Water Act provides the

citizen with both an injunctive remedy and the right to seek “ap-

propriate civil penalties” (33 U.S.C. 1365(a)) as alternative or

supplementary methods to induce the violator to abate ongoing

violations that interfere with the citizen’s use and enjoyment of

water resources.'® Congress has made an empirical judgment

penalty remedy ultimately rely on the same sort Of monetary sanctions to

redress the citizen’s injury.

¥ This Court recently reiterated that civil penalties under the Clean Water

Act are intended, in large part, to deter a violator from committing tuture

violations. See Tull v. United States, 481 U.S. 412, 422-424 (1987). See also

Comment, The Rise of Citizen-suit Enforcement in Environmental Law:

Reconciling Private and Public Attorneys General, 81 Nw. U.L. Rev. 220,

237-238 (1987). As the Court noted (481 U.S. at 422-423 n.8), Congress, in its

recent amendments to the Clean Water Act (Water Quality Act of 1987,

§ 314(a), 101 Stat. 47), has instructed the courts to consider a number of tac-

tors relevant to deterrence —including the seriousness of the violation, the

economic benefit resulting from the violation, any good faith efforts to com-

ply, and the economic impact of the penalty on the violator —in determining

the amount of the civil penalty. See 33 U.S.C. 1319(d).

‘0 Simkins seems to concede that, even under its theory, there would be no

Article III difficulty in this case if the district court had issued an injunction in

addition to assessing civil penalties. See Pet. 16. But the issuance of an injune-

tion is not an Article II] or statutory prerequisite, provided that the citizen can

show injury and the need for relief. As Gwaltney observed, the citizen suit

provision “suggests a connection between injunctive relief and civil penalties”

(108 S. Ct. at 382) because both remedies are designed to rectify the violator’s

state of noncompliance. See sbid. (a citizen “may seek civil penalties only in a

that a citizen who can show injury can obtain effective redress

through the imposition of civil penalties that induce a violator

to achieve and to maintain a state of compliance. That

quintessentially legislative determination is reasonable and en-

titled to respect. Cf. Sierra Club v. Morton, 405 U.S. at 732 n.3.

Indeed, as in Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975), “if [violators] faced only the prospect of an injunctive

order, they would have little incentive to shun practices of

dubious legality” (id. at 417).

The existence of Article II] standing here is also consisteat

with this Court’s discussion in Gwaltney of the related Article

Ill concept of mootness. As this Court explained, a defendant

may seek dismissal of a citizen abatement action on mootness

grounds, if prior to a judicial finding of noncompliance, the

defendant eliminates all prospect that the violations will recur.

See 108 S. Ct. at 386. But the defendant bears the heavy burden

of demonstrating “that it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur’ ”

((bid.). In other words, a citizen plaintiff has a live Article III

“case” or “controversy” provided that he continues to face a

possibility of remediable injury. Lhose are essentially the same

circumstances in which, we submit, the plaintiff would have Ar-

ticle III standing to seek imposition of civil penalties.!!

suit brought to enjoin or vfherwise abule an ongoing violation” (emphasis

added)).

'! As this Court has recognized, the mere cessation of illegal conduct after

the institution Of a suit does not make the case moot, even it “the likelihood of

turther violations is sufficiently remote to make injunctive relief unnecessary.”

United States v. Phosphate Export Ass'n, 393 U.S. 199, 203-204 (1968). See

United States v. W.T. Grant Co., 345 U.S. 629, 632-633, 635-636 (1953). In

the case of Clean Water Act citizen suits, the commencement of compliance,

even if accompanied by the initiation of new procedures or the installation ot

new equipment, would not, as a general matter, completely moot a case

because, for example, the same neglecttul behavior that led to the violations

may still recur in the form of neglecttul adherence to the new procedures or

neglectful operation and maintenance of the new equipment. Accordingly, we

submit, a finding of mootness would generally be inappropriate absent a

showing that the prospect of neglectful behavior itself is eliminated by, tor ex-

Nor is Simkins persuasive in contending that the “deterrence

rationale is incompatible with Article III] precedents” (Pet.

17-18). Simkins primarily argues that a citizen cannot assert Ar-

ticle II] standing based on his supposed interest in encouraging

potential violators, who are not parties to the suit, to comply

with the Act (id. at 17-19). That may well be true, but the Court

has no occasion to reach that particular constitutional question

here. Neither the court of appeals nor the district court based

the imposition of the civil penalty solely on “general” deter-

rence.'? Moreover, the Court may never need to reach that con-

stitutional question because the Clean Water Act’s statutory

provisions do not appear to authorize citizen suits brought sole-

ly for “general” deterrence.'3

ample, the permanent closing of the facility or the permanent cessation of all

discharges. See, e.g., Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807

F.2d 1089 (Ist Cir. 1986), cert. denied, 108 S. Ct. 484 (1987) (defendant com-

pleted tie-in with a municipal treatment facility and ceased discharging under

its NPDES permit). In the absence of such a showing, Article III standing

would continue as well.

'2 As Simkins observes (Pet. 16-17), the court of appeals cited approvingly

(Pet. App. 8a) a pre-Gwaltney district court decision suggesting that a citizen

plaintiff's interest in general deterrence could satisfy Article <a Standing re-

quirements. See Student Public Interest Research Group, Inc. v. AT&T Bell

Laboratories, 617 F. Supp. 1190, 1200-1201 (D. N.J. 1985). Thee itieiaald Was

not evential to the court of appeals’ decision, however, since the court also

relied on the concept of “specific” deterrence, stating that the request for civil

penalties was “causally connected to a citizen-plaintiffs injury” because

“penalties can be an important deterrence against future violations” (Pet.

App. 8a). See also id. at 8a n.5 (describing Simkins’ commencing of com-

pliance). The district court, which made no mention of “general” deterrence

and calculated “appropriate civil penalties” (33 U.S.C. 1365(a)) based on tac-

tors relevant to deterring SimXins’ continued violations (such as the gravity of

Simkins’ violations, the company’s financial status, the economic benefits

from noncompliance, and the company’s past and present conduct), appeared

to rely exclusively on a “specific” deterrence rationale. See Pet. App. 55a; see

generally id. at 45a-5Sa.

'3 As we have explained, Section 505(g) defines a citizen as a person who has

“an interest which is or may be affected” (33 U.S.C. 1365(g)). “It is clear from

the Senate Conference Report that this phrase was intended by Congress to

allow suits by all persons possessing standing under this Court’s decision in

Simkins acknowledges the Sierra Club’s contention that a civil

penalty would specifically “deter Simkins” from violating its

permit (Pet. Reply Br. 2), but it does not respond to that argu-

ment except to say that “judicial relief which serves no con-

ceivable interest apart from its raw potential for deterrence”

does not satisfy Article III] (id. at 4). As we have explained, a

citizen obtains Article III “redress” because the penalty abates

Ongoing violations by inducing the violator to achieve and to

maintain a state of compliance. Indeed, the district court’s

assessment of a civil penalty against Simkins seems to have

achieved exactly that result in this case.!+

In short, Simkins is mistaken in suggesting that Section 505’s

civil penalty provisions present a question of “fundamental con-

stitutional magnitude” (Pet. 11). Those provisions satisfy con-

stitutional standing requirements because they provide citizen

plaintiffs with a remedy to abate specific injurious violations.

Nor does the court of appeals’ particular application of those

Sierra Club v. Morton, 405 U.S. 727 (1972).” Middlesex County Sewerage

Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 16 (1981). The Sierra

Club decision, which interpreted the Administrative Procedure Act’s standing

requirements, held that a person asserting aesthetic or recreational interests in

a public resource must show that his actual use of the resource would be

significantly affected. See 405 U.S. at 734-736. It unequivocally rejected the

notion that a person might assert standing simply as a“ ‘representative of the

public’ ” (405 U.S. at 736).

'4 Simkins mistakenly reads the United States’ aiucus curiae brief in

Gwaltney as supporting its view that citizen plainutts lack standing to seek

civil penalties. Pet. 15-16. The United States’ brief urged (as this Court later

held) that Section 505 requires a citizen plaintiff to allege ongoing non-

compliance with the Clean Water Act’s requirements. The brief suggested

that, given Section 505’s goal of abating water pollution, an action brought

“simply to obtain a judicial assessment of civil penalties for nonrecurring past

violations would fail to meet Article III’s requirements,” because the payment

of civil penalties to the Treasury for those violations would not “redress in any

meaningful sense the citizen’s alleged injuries.” 86-473 U.S. Br. 21 n.34 (em-

phasis added). Obviously, the United States’ concern regarding standing was

limited to the situation Where the citizen plainutt did not tace any prospect of

tuture injury. Indeed, it was implicit in our submission that a citizen plaintiftt

who did allege ongoing noncompliance could satisty Article II’s standing re-

quirement.

provisions in this case warrant this Court’s review. First, as we

have explained, the court of appeals’ decision 1s basically cor-

rect. Moreover, this Court’s decision in Gwaltney has already

provided significant guidance on the subject, and there is at this

time no conflict among the courts of appeals to be addressed. '*

2. Simkins also contends (Pet. 20-28) that this Court should

review the court of appeals’ conclusion that the company was

subject to civil penalties, in accordance with this Court’s deci-

sion in Gwaltney, based on Simkins’ ongoing state of non-

compliance. Simkins essentially argues that the court of appeals

erred in affirming the district court’s judgment on grounds other

than those advanced by that court. We submit, however, that

the court of appeals acted within its powers and did not abuse

its discretion. Moreover, this matter, which does not present a

substantial or novel legal question and turns On an assessment

of the particular record in this case, does not present any issue

warranting this Court’s review.

As this Court has explained, a reviewing court “may affirm

on any ground that the law and the record permit and that will

not expand the relief granted below.” Thigpen v. Roberts, 468

U.S. 27, 30 (1984). See, e.g., United States v. New York

Telephone Co., 434 U.S. 159, 166 n.8 (1977); Dandridge v.

Williams, 397 U.S. 471, 475 n.6 (1970); Jaffke v. Dunham, 352

U.S. 280, 281 (1957); Helvering v. Gowran, 302 U.S. 238, 245

(1937); Langnes v. Green, 282 U.S. 531, 538-539 (1931); United

States v. American Ry. Express Co., 265 U.S. 425, 435-436

(1924). The courts of appeals uniformly follow that practice.

See 6 J. Moore, Moore’s Federal Practice 4 56.27{1], at

56-858-859 (1988); 10 C. Wright, A. Miller & M. Kane, Federal

Practice and Procedure § 2716, at 658-660 (1983) (collecting

cases).'®

'S As Simkins itself points out, although citizen plaintiffs have brought a

substantial number of citizen suits in recent years (Pet. 13), “only twice has a

penalty judgment in a § 505 suit been subjected to appellate review” (id. at 15)

“Both cases” — Gwaltney and this dispute —“were decided by the Fourth Cir-

cuit in panel opinions by [former] Chief Judge Winter” (ibid.).

this Court’s per curiam decision in Fountain v. Filson, 336 U.S. 681 (1949).

See Pet. 23. Fountain involved a distinctly different situation. There, the court

of appeals had reversed the district court’s summary judgment and entered

summary judgment in favor of the appellant. See 336 U.S. at 682. See also 6 J

The court of appeals properly followed settled practice in this

case. As the court explained,

In Gwaltney, the Supreme Court held that citizen-suits

could not be based upon wholly past violations, but

distinguished 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 challenges, the Supreme

Court also stated that in order to prevail, a citizen-plaintiff

must prove a continuing violation.

Pet. App. 9a (citing Chesapeake Bay Foundation, Inc. v.

Gwaltney of Smithfield, Ltd., 844 F.2d 170 (4th Cir. 1988)).!’

The court of appeals therefore found it necessary to evaluate the

district court’s pre-Gwaltney decision in light of this Court’s and

iis Own intervening decisions. The court concluded that,

although the district court believed that Section 505 permitted

imposition of civil penalties based on a series of past violations,

affirmance was nevertheless warranted because the record

demonstrated that the “Sierra Ciub has alleged in good faith and

Moore, Moore’s Federal Practice § 56.27{2] (1988). Simkins also contends that

the court of appeals’ decision in the present case amounts to impermissible ap-

pellate factfinding, citing Aymadeo v. Zant, 108 S. Ct. 1771, 1780 (1988); Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986); Anderson vy.

Bessemer City, 47@ U.S. 564, 577 (1985); and Puliman-Standard v. Swint, 456

U.S. 273, 286-287 (1982). See Pet. 23-26. But all of those cases involved situa-

tions where the court of appeals had overturned the district court’s findings

and reversed its judgment — neither of which occurred here.

'? The Fourth Circuit’s Gwaliney decision specifically stated that such proof

could be made by either (1) proving that the violation had actually continued

after the filing of the complaint, or (2) “adducing evidence from which a

reasonable trier of fact could tind a continuing likelihood of a recurrence in in-

lermiltent Or sporadic violations. Intermittent or sporadic violations do not

cease to be ongoing until the date when there is no real likelihood of repeti-

tion.” 844 F.2d at 171-172. Accord Sierra Club v. Union Oil Co., 853 F.2d

667, 671 (9th Cir. 1988). The court of appeals remanded Gwaltney to the

district court to determine whether plaintiffs had proved their allegations. The

district court has since determined that the plaintuitts had met their burden of

proot (688 F. Supp. 1078 (E.D. Va. 1988)). The case is once again on appeal

before the Fourth Circun (No. 88-1317)

proved a continuing violation within the meaning of Gwaltney”

(Pet. App. 9a).

The court of appeals’ assessment of the record involved no re-

jection of any finding by the district court and appears correct.

First, there can be little doubt that the complaint alleged an

ongoing violation. As the court of appeals explained (Pet. App.

9a), the Sierra Club’s 60-day notice letter announcing its inten-

tion to sue unambiguously alleged that Stmkins “has violated

and continues to violate” its NPDES permit (/d. at 76a). The

complaint, in turn, specifically incorporated that letter by

reference (id. at 74a). In addition, the complaint specifically

stated that “[t}he interests of Sierra Club’s members have been,

are being and will be adversely affected by” Simkins’ violations

(id. at 73a), and it sought an injunction against Simkins’ “fur-

ther” violation, as well as copies of all Simkins’ “future” reports

relating to its permit (/d. at 75a). Given these allegations and re-

quests for relief, the court of appeals properly concluded that

the Sierra Club’s complaint, read in its entirety, alleged an on-

going state of noncompliance. See Conley v. Gibson, 355 U.S.

41, 47-48 (1957).

The court of appeals’ conclusion that the Sierra Club had

proved an ongoing state of noncompliance also finds adequate

support in the record. As the court explained, although Simkins

apparently initiated actions to come into compliance shortly

after the Sierra Club gave notice of its intention to sue (Pet.

App. 8a n.5), it did not file its first legally sufficient DMR until

nearly three months after the Sierra Club filed its complaint (/d.

at 10a). The court reasonably concluded from the record, which

showed that Simkins had blatantly ignored its reporting obliga-

tions for three years prior to the filing of that DMR, that Sierra

Club had proved a continuing violation that justified a judicial

remedy to assure future compliance. See id. at 9a-lla.'®

'§“A good or lucky day is not a state of compliance. Nor ts the dubious

state in which a past effluent problem is not recurring at the moment but the

cause of that problem has not been completely and clearly eradicated.”

Gwaltney, 108 S. Ct. at 387 (Scalia, J., concurring). indeed, the district court

itself seemed to apply that principle in granting summary judgment. See Pet

App. 39a (observing that while a citizen plaintiff may not seek penalties “for a

Simkins contends that the court of appeals should have

vacated the district court’s judgment and remanded for further

factual development. The court of appeais certainly had the

discretion to do so. And in many —if not most — instances that is

perhaps the better course. See Puli/man-Standard v. Swint, 456

U.S. 273, 291-292 (1982). But the court of appeals did not abuse

its discretion in affirming the district court’s decision here,

where the district court first entered its order of partial sum-

mary judgmeni nearly four years ago, Simkins had a full oppor-

tunity to address the relevant issues, and ihe resulting record

supported affirmance.'? In any event, the question whether the

court of appeals abused its discretion on this particular record

does not present a question of general importance warranting

this Court’s review. ?°

single past violation,” the violator whe “stops polluting the day, the hour, o1

the minute before the suit is tiled” is not necessarily insulated from such

relief). In addition to the reporting violations, the court of appeals concluded,

based on evidence in the record, that Simkins’ failure to retain records as re-

quired by its permit also established an ongoing state of noncompliance. See

Pet. App. 10a-lla. See generally C.A. App. 15-31 (Simkins’ NPDES permit);

id. at 37-67 (Simkins’ DMRs).

'Y Simkins’ contention that it did not have an opportunity to tender relevant

facts (Pet. 22; Pet. Reply Br. 6) is incorrect. Simkins consistently argued

before the district court that it Was in present compliance with its permit. See,

e.g., Pet. App. 38a; C.A. App. 379-381. It accordingly had a full opportunity

to develop a record in support of that assertion.

70 Simkins has stated that it “reserves the right to argue” an additional mat

ter —namely, whether the tailure to file a DMR 1s a violation of “an effluent

standard or limitation” (33 U.S.C. 1365(a))—1n the event that its petition ts

granted. See Pet. 1. Since Simkins has not presented that question as a basis

for this Court’s review, we do not address it here. See Sup. Ct. R. 21.1 (a).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.