# Amicus Curiae Brief — Simkins Industries, Inc. v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0307%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 992 ## Text (+. Supretie Court, U.S. | In the Supreme Court of the Uniter States OCTOBER TERM, 1988 SIMKINS INDUSTRIES, INC., PETITIONER v. 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 J $y t - 5 s : 7 f » . : i 7 “ t % : é ’ ‘ SS } ~ fi ; j : - - « , 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 © SR SE ELA: SD a oe ales sane icee sera as 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 V. 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) =~ 4 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. 6 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. 9 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 10 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 1] 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- 12 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