Petition for Writ of Certiorari — Work v. Tyson Foods, Inc.
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. /;) | Supreme Court, U.S,
Oder i762 FILED
MAY 15 199]
In The
Supreme Court of the United States” MM “sk
October Term, 1990
7
LEWIS STEPHEN WORK, et al.,
Petitioners,
VS.
TYSON FOODS, INC.; CITY OF GREEN
FOREST, ARKANSAS; and UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
¢
Petition For Writ Of Certiorari
To The United States Court Of
Appeals For The Eighth Circuit
— “
PETITION FOR WRIT OF CERTIORARI
’
James Bruce McMatH
(Counsel of Record)
THE McMatnH Law Firm, P.A.
711 West Third Street
Little Rock, AR 72201-2201
(501) 376-3021
James G. LINGLE
LINGLE & Cor ey, P.A.
P.O. Box 652
Rogers, AR 72757-0652
(501) 636-7899
SAMUEL E. LEDBETTER
NicHois, Wortrr & Leppetter, P.A.
1650 Worthen Bank Building
200 W. Capitol Avenue
Little Rock, AR 72201
(501) 372-5659
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
(A) Whether a citizen suit brought under 33 U.S.C.
(B)
(C)
§ 1365 can be precluded by the entry of a consent
decree between the EPA and a polluter in an action
initiated by the EPA after the citizens’ suit was filed.
Whether civil penalties assessed against Tyson and
the City under the CWA were properly determined.
(a) Whether it is permissible under the Seventh
Amendment for a trial court to “construe” an
inherently ambiguous jury verdict in order to
determine an issue of fact.
(b) Whether a trial court has absolute discretion in
assessing penalties under the CWA, or is
obliged to apply the criteria set forth in § 309 of
the Act.
Whether a circuit court can summarily and without
explanation deny attorneys’ fees and costs to citizen
plaintiffs who have substantially prevailed in a citi-
zens’ suit brought pursuant to 33 U.S.C. § 1365.
ii
PARTIES
Petitioners are Luke Anderson, Mary Anderson, John
David Bailey, Jo Ann Bailey, Kim Suzette Bailey, Clay G. _
Battin, Graydon Bullock, Gwendolyn Bullock, Kenneth
Cochran, Doris M. Cochran, Harold Carroll Collins,
Mabel Maxine Collins, Patrick Henry Collins, David G.
Combs, Harold Gene Combs, Glenna Ruth Combs, Arthur
Harold Dillwith, Claris W. Dillwith, Joe Erwin, Wanda
June Erwin, Russell Harold French, Barbara Lee French,
Jerry D. Goen, Jane Marie Goen, Sara Beth Goen, Todd
Lee Goen, David M. Granger, Shirley A. Granger, Jason
Paul Granger, Edward K. Grisham, Sue Grisham, Roger
Hurley Hall, Tommie Jean Hall, Michael Chad Hall,
Aaron Brian Hall, Virgil Hammons, Clythy Hammons,
Roy F. Hayhurst, Cecilia Hayhurst, Terry Hayhurst, Patri-
cia Jean Hudson, Ashley Nicole Hudson, Justin David
Hudson, Janice Ann Knight, Fred M. Massengale, Freddie
Mae Massengale, Loman Maybee, Arlis Elbert McGehee,
Patti Lynn McGehee, Justin Heath McGehee, Eric Shane
McGehee, Brandon Cliff McGehee, Clifford Fornie
McGehee, Georgia Maxine McGehee, Fred McGehee,
Edith McGehee, Delta Peden, Ira Owen Peden, William
Lee Pittenger, Tommie Jean Pittenger, John Arvil Proctor,
Carolyn Proctor, Arthur Everett Ratzlaff, Ann Linda Rat-
zlaff, Marvin Claude Russell, Theta Shipman, Eugene
Shipman, Henry L. Shudy, Betty R. Shudy, Allen Paul
Slavens, Cybil R. Slavens, Roy Lee Smith, Velvia Joy
Smith, Kenny L. Smothers, Blinda Faye Smothers, Kelly
Larence Smothers, J.R. Snow, Farye Snow, Jae Lea Snow,
Liz Snow, Ivan Swor, Beneva Blossom Swor, Eugene
Underdown, Lois Underdown, Kyle Arthur Wallace,
iii
PARTIES - Continued
Mary Ann Wallace, Clarence L. Wheaton, Carolyn Glen
Wheaton, Charles E. Whitney, Viola C. Whitney, Danny
Frank Wilson, Treva Ann Wilson, Justin Frank Wilson,
Angela Michelle Langston, Danny Paul Wilson, Jay Frank
Wilson, Rena M. Wilson, Joe Charles Wilson, Noah Fred
Wilson, Lema Bea Wilson, Elizabeth Ann Wilson, Lewis
Stephen Work, Margaret Work, John Work, Ralph Zizza
and Frances B. Zizza, (hereafter “Work, et al.”, “plain-
tiffs”, or “petitioners”), who are citizens and residents of
The State of Arkansas, residing in or near the City of
Green Forest, Arkansas.
The respondents are Tyson Foods, Inc.; the City of
Green Forest, Arkansas; and the United States Environ-
mental Protection Agency.
iv
TABLE OF CONTENTS
APPENDIX
A. Opinion of the Eighth Circuit Court of Appeals,
B.
Sie
(December 18, 1990; modified February 20,
i! SEPP rere ree rr err esr Tere er rer Tory App.
Judgment of the Eighth Circuit Court of Appeals
(December 16, 1990). .....0cccssccsesesees App.
Order Denying Petitioners’ Attorneys’ Fees,
Expenses and Costs under 33 U.S.C. § 1365
(dated February 25, 1991)..........60.55.. App.
Memorandum Opinion of the District Court
CE Ws BI ow cea eectspessneanroyes App.
Page
I. Questions Presented for Review............... i
es F 4 rer er en err rrr er errr. eT ii
SR. ee Oe I oo os kecuedendctusesuawsanwen iv
Pe, Ce le III oo os txts cuncevanensnens vii
a) I I oie dow sa coneeas saps vabkcneweeo 1
PS ot so ck candid perwebkhareuenes 1
pp er err re re 2
VIEL. ‘ ORRRIOEE OF Cie GOOO....c . 2 no cee ccc ce ccass 2
IX. Reasons for Granting the Writ............... 11
TEs OV euL ace ct arene coke 2a eee abn 11
SE ay aaa aa4 sb turn ken aches + ee Ke RS 18
gg PRR ere ren reer rere. 24
a; MICS rahe ccdncaaeuns oh cence eae eaaees 28
41
43
44
TABLE OF CONTENTS - Continued
Page
E. Consent Decree of the District Court, EPA v. City
of Green Forest (March 24, 1989).......... App. 61
F. Order of District Court approving consent decree
and denying Petitioner’s Intervention in EPA v.
City of Green Forest (March 22, 1989)...... App. 76
G. Order of the District Court Granting Summary
Judgment Against Petitioners on their Clean
Water Act Claim Against the City of Green For-
8! BR err er eeerrr rere App. 78
H. Order Denying Petition for Rehearing and Sug-
gestion for Rehearing En Banc (February 14,
OG URSIN carts as SERRE Wo SSeS is AE OS eo ae App. 81
I. Order Denying Reconsideration or Clarification
of Order Denying Attorneys’ Fees & Costs (March
ia 65 ook ds CFE d wee nnd cone keuse® .App. 82
J. Letter to Hon. A.L. Powell, Mayor of City of
Green Forest, Arkansas; from John L. Haney, P.A.,
Air and Water Program Division, EPA (August 1,
og Sr eee rrr rer rere eee Tree Perr eee App. 83
K. Letter to Hon. T.E. Larimer, Mayor of City of
Green Forest, Arkansas; from Robert E. Blanz,
Engineer, Div. of Water Pollution Control, EPA
Co ges rr ee App. 86
L. Letter to 6ASA, EPA; from Clarence A.
Edmondson, Chemist, Ada Branch (April 19,
M. Letter to Hon. James R. Eldridge, Mayor of City
of Green Forest, Arkansas; from Robert E. Han-
nesschlager, Municipal Design, EPA (August 4,
UK eee hak cota selva teeneea esses App. 90
FO VO
vi
TABLE OF CONTENTS - Continued
Page
Letter to Dr. Ben M. Saltzman, Director,
Arkansas State Dept. of Health, Little Rock, AR;
from James B. Blair, General Counsel, Tyson
Foods, Springdale, AR (May 14, 1987).... App.
33 U.S.C. Bieewnacuee sess cases s cs App.
33 U.S.C Bee App.
33 USA. Tae eevee eee eee ee baw e's App.
AmenGenee Faia vices Pe CRT ORV hae csdawes App.
92
95
114
134
138
vii
TABLE OF AUTHORITIES
CASES:
Atlantic States Legal Found., Inc. v. Koch Refining
Co., 681 F. Supp. 609 (D. Minn. 1988).........
Atlantic States Legal Found., Inc. v. Tyson Foods, Inc.,
Ger Fam. lize (iith Cir. 1990).......... 59, 22,
Chesapeake Bay Found., Inc. v. American Recovery
Co., Inc., 769 F.2d 207 (4th Cir. 1985)..........
Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield
Ltd., Inc., 791 F.2d 304 (4th Cir. 1986).........
Connecticut Fund for the Environment v. Job Plating
Co., Inc., 623 F. Supp. 207 (D. Conn. 1985)....
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
To, oe, ae Gls WP CEOUO)... W526 6. cess.
Hensley v. Eckerhart, 461 U.S. 424 (1983).........
Johnson v. Georgia Highway Express, Inc., 488 F.2d
ee
Maher v. Gagne, 448 U.S. 122 (1980).............
Norman v. Housing Authority of Montgomery, 836
ee a eee
Northcross v. Memphis Bd. of Educ., 412 U.S. 427
Ns aL iaU ey vheeeo¥k tenkehandietanene’s
Oldham v. Ehrlich, 617 F.2d 163 (8th Cir. 1980)...
Pennsylvania v. Delaware Valley Citizens Council For
Clean Air, 478 U.S. 546 (1986).......... auras
24, 26
viii
TABLE OF AUTHORITIES - Continued
Page
Sierra Club v. Coca-Cola Corp., 673 F. Supp. 1555
St ee I EG Mai nen canis cc aes seneens aes 16
Sierra Club v. Simkins Indus., Inc., 617 F. Supp. 1120
ce PET Peer eer Pree rer Tete 15
Texas State Teachers Assn. v. Garland Indep. School
ay TU ED Sa Aidt eee succsnedsececs 25
Tull v. United States, 481 U.S. 412 (1987)...... 18, 23, 24
United Handicap Fed'n v. Andre, 622 F.2d 343 (8th
Oe BS pep ree ry reer ee re ee 26
United States v. City of Miami, 664 F.2d 435 (5th Cir.
PO has ks Chirke DEAE EN b orale an baa es evens uh 16
LecisLativE AND/OR Statutory AUTHORITY:
Clean Water Act (“CWA”)
Se eer a &
og eS ee eee ee ee eres eee eT eee ee 2
SOF SP Is bok de vacadnacxewhineeanededen passim
U.S. Code Cong. and Ad. News pp. 3745-3746....... 14
Constitution of the United States - Seventh
IE 6 6 CNG os nckanebeasens babeheses kanes 2, 21
OPINIONS BELOW
The opinions and orders of the United States District
Court in Work, et al. v. Tyson Foods, Inc., et al., 720 F. Supp.
132 (W.D. Ark. 1989), which appear in Appendix at App.
44. The opinion of the United States Circuit Court of
Appeals for the Eighth Circuit is reported in 921 F.2d 1394
(8th Cir. 1990), and appears infthe Appendix at App. 1.
Petition for rehearing and stiggestion for rehearing en
banc was denied, and the Eighth Circuit Court of
Appeals’ Order Denying Petition for Rehearing and Sug-
gestion for Rehearing En Banc appears in the Appendix at
App. 81. The order of the United States Circuit Court of
Appeals for the Eighth Circuit denying petitioners’ attor-
neys’ fees, costs and expenses appears in the Appendix at
App. 43. The order of the United States Circuit Court of
Appeals for the Eighth Circuit denying petitioners’
motion for clarification and/or reconsideration of peti-
tioners’ claim for attorneys’ fees, costs and expenses
appears in the Appendix at App. 82.
&.
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JURISDICTION
The opinion of the United States Court of Appeals for
the Eighth Circuit was entered on December 18, 1990
(Chief Judge Lay concurred in part and dissented in
part). The judgment of the United States Court of
Appeals for the Eighth Circuit was entered on December
18, 1990. Appendix at App. 41, infra. Petitioners’ motion
for attorneys’ fees, costs and expenses was denied by
Court’s Order entered on February 25, 1991. Ap,endix at
App. 43, infra. Petitioners’ motion for clarification and/or
reconsideration of that Order was denied by the Court’s
1
2
Order entered March 27, 1991. Appendix at App. 82.
Petitioners’ timely petition for rehearing was denied by
Order of the Court of Appeals entered on February 14,
1991. Appendix at App. 81, infra. This Petition is filed
within 90 days of said Order. This Court’s jurisdiction is
involved under 28 U.S.C. § 1254(1).
Lp.
_-
STATUTES INVOLVED
33 U.S.C. § 1319 (see, Appendix at App. 95).
33 U.S.C. § 1342 (see, Appendix at App. 114).
33 U.S.C. § 1365 (see, Appendix at App. 134).
Seventh Amendment to the Constitution of the
United States (see, Appendix at App. 138).
STATEMENT OF THE CASE
Lewis Work, et al., petitioners, reside east of the
small town of Green Forest, in the Ozark Mountains of
northwest Arkansas. This case arises from pollution dis-
charged from a wastewater treatment plant (“POTW”)
owned by respondent City of Green Forest (“City”), into
a stream known as Dry Creek that flows through the area
where petitioners reside.! The principal source of pollu-
tion is organic waste discharged from a chicken process-
ing plant owned and operated by respondent, Tyson
Foods, Inc. (“Tyson”).
' The geology of the area is karst topography, which
means that the principle structures are limestone. Limestone is
water soluble and thus quite porous. In such areas, groundwa-
ter aquifers are in close contact with surface water. Dry Creek
is a “losing stream”, which means that much of its flow goes
into underground aquifers.
3
The history of pollution in Dry Creek from the City’s
POTW dates back into the late 1960’s. Tyson was then and
is now the only major industrial contributor to the City’s
POTW. In the early 1970’s, due to deteriorating condi-
tions in Dry Creek, evidence of possible adverse impact
on the groundwater supplies in the area, and resulting
complaints of citizens east of the City, the City applied
for and received a federal grant through the EPA to build
a new POTW. Pursuant to the grant application process,
the EPA approved the plans and specifications for the
new POTW and set certain conditions, among which were
that the City prohibit discharges from Tyson’s chicken
processing plant in excess of 400 milligrams per liter
(“mg/L”) of biochemical oxygen demanding waste
(“BOD”), and 302 mg/L total suspended solids (“TSS”),
and a maximum daily BOD loading of 3,730 lbs. (Appen-
dix at App. 83). Waste which exceeded these parameters
would overload the design capacity of the City’s POTW
and prohibit it from achieving its designed level of treat-
ment. To meet these parameters, it was necessary for
Tyson to “pre-treat” its waste before discharging it to the
City’s POTW.
In May 1973, the City requested a National Pollution
Discharge Elimination System (“NPDES”) permit, as
required by the Clean Water Act (“CWA” or “the Act”),
33 U.S.C. § 1342, indicating in its application that the
POTW should be capable of meeting secondary treatment
standards.2 The permit was issued in 1974. The City,
2 “Secondary Treatment Standards” were defined by the
EPA as 30 milligrams per liter for 30 day average BOD, or 85%
TSS removal. See, 40 C.F.R. § 133.102.
4
however, never modified its ordinances to prohibit dis-
charges from Tyson in excess of the limits referenced
above, and Tyson did not pretreat its waste or otherwise
produce an effluent meeting the established criteria. It is
unclear from the records whether the new POTW ever
achieved Secondary Treatment Standards, but the quality
of its discharge and the condition of Dry Creek greatly
improved.
With the construction of the new plant, a suit against
Tyson’s then-subsidiary, Franz Foods, being prosecuted
by citizens residing east of the City, was settled. In the
settlement Tyson agreed not to discharge waste into the
City’s POTW so as to alter the conditions of Dry Creek or
which would constitute a violation of any City ordinance,
state or federal law.
As time passed Tyson expanded its operations, and
the quality of wastewater discharged by the City’s POTW
deteriorated. Over the next decade there were periodic
inspections, correspondence, and warnings issued by the
EPA and Arkansas Department of Pollution Control &
Ecology (“ADPC&E”). By the early 1980’s the City’s
POTW was discharging waste stronger than domestic raw
sewage. The agencies specifically stated to the City on
several occasions that these conditions were related to the
failure of the City to require Tyson to pretreat its waste.
One EPA inspector observed that the City’s failure to
require Tyson’s pretreatment was due to the political and
economic duress imposed upon the City by Tyson.
Appendix at App. 86, 88 and 90.
Despite this, no enforcement action was taken against
the City or Tyson by any agency, other than the periodic
issuance of administrative orders (“AO’s”), which only
served to grant the City higher and higher interim limits.
5
A City employee testified at trial that by 1983/1984
the City was ‘doctoring’ POTW samples, taking them on
the weekends when Tyson was shut down, and pumping
sludge around the final clarifiers, directly into Dry Creek.
In an effort to keep the POTW from going septic, the City
skimmed sludge off the clarifiers and hauled it in tank
trucks for land-application which, in itself, represented a
risk to area groundwater aquifers.
Tyson loaned the City trucks for the sludge-hauling
and land-application. At trial, Tyson’s environmental
engineer testified he was aware of pretreatment technolo-
gies suitable for this plant, and was aware of the CWA
prohibitions against interference and pass-through. He
also testified that, in the spring of 1984, he had calculated
the loading Tyson was placing on the City’s POTW. Ear-
lier correspondence demonstrated awareness by Tyson of
the City’s inability to meet its permit levels.
In August 1984, after a sinkhole opened in Dry Creek
downstream from the POTW, the Health Department
determined that residential waterwells in the Dry Creek
basin were being adversely impacted by the POTW’s
discharge. Subsequently, the Health Department estab-
lished an Imminent Health Threat Zone in the area east of
the City, and a Proclamation was issued by the Governor
on October 18, 1984 declaring it a Disaster Area. The EPA
sent Mr. Reeves, one of its chief engineers, to inspect the
City’s operation. He found that the City’s POTW was
grossly overloaded by Tyson’s waste.
In November 1984, ADPC&E notified the City that it
appeared from a recent diagnostic evaluation (Mr.
Reeves’ study) that “a high strength biological waste
discharged by Tyson” was “interfering with the ability of
the POTW to meet its permitted effluent limits.” He
6
directed the City to implement a pretreatment program
with Tyson that would insure the cessation of the inter-
ference.
On February 5, 1985, EPA’s Director of Wastewater
Management Div., Region VI, wrote the City indicating
the EPA was concerned about water quality problems in
the Green Forest area that were apparently due to the
continued overloading of the City’s POTW by Tyson. He
pointed out to the City its obligation under its NPDES
permit to control Tyson’s effluent, and since the POTW’s
problems were apparently the result of failure on the part
of the City to do so, EPA had determined that the City’s
interim limits were inappropriate and that the City would
be placed on their final limits, as contained in the permit
then in effect.
All the facts recited in these two letters from the EPA
and ADPC&E to the City had been true since 1974.
In June 1985, Tyson completed a pretreatment facility
as required in an administrative order entered into
between the City and the ADPC&E. The City’s POTW
effluent improved dramatically, exceeding secondary
treatment standards. However, Tyson continued to be the
principal load on the City’s POTW which, in turn, contin-
ued to violate its permit limits. These violations notwith-
standing, Tyson announced plans to expand its Green
Forest facilities and production capacity.
3 By this time “final limits” had been set for the City’s
POTW which were more stringent than Secondary Standards.
Those limits were established based on water quality require-
ments mandated by the CWA.
7
In November 1985, EPA issued a new AO to the City
that set a specific construction schedule for the comple-
tion of a new tertiary treatment facility.
In January 1986, the Health Department notified the
City of a second expansion of the Imminent Health Threat
Zone, which then encompassed an area of 15.7 square
miles.
On June 15, 1986 the POTW “went septic,” resulting
in a large quantity of poorly treated waste being dis-
charged into Dry Creek and causing a large fish kill
downstream. This septic condition at the POTW and
resultant fish kill coincided with a shutdown of Tyson’s
pretreatment facility, and the City’s wastewater superin-
tendent initially concluded that the condition was a result
of Tyson’s operation, as did the local ADPC&E inspector.
An ADPC&E engineer concluded to the contrary.
Also in 1986, Tyson expanded its operation by fifty
percent. The City continued to violate its NPDES permit,
and failed to meet several deadlines in its construction
schedule. At this time Tyson was also land-applying
sludge a semi-liquid waste from its pretreatment facility
— in the area of the Imminent Health Threat Zone, and in
the proximity of Anderson Springs, the source of the
City’s drinking water supplies. Anderson Springs itself
had, by that time, become a water supply for some of the
petitioners who, under a remedial action program, were
being extended city water lines.
On November 10, 1986, petitioners sent notice to all
parties, as required by 33 U.S.C. § 1365(a)(1)(A), of their
intent to sue Tyson and the City under the CWA.
8
On November 28, 1986 EPA issued another AO to the
City reflecting its non-compliance with deadlines previ-
ously established for receiving bids and commencing con-
struction on the new tertiary treatment plant; noting the
City’s continued violation of its existing permit limits;
and requiring the City to show cause why EPA should not
take further enforcement action.
In 1987, Tyson’s production capacity reached 840,000
lbs. of chicken per day at the Green Forest plant, and had
plans for further expansion.
Petitioners filed suit against the City and Tyson on
March 3, 1987, invoking the District Court’s jurisdiction
under 33 U.S.C. § 1365 and 28 U.S.C. § 1331.
On August 10, 1987 EPA cited the City in an AO for
several operational permit violations, including improper
sludge disposal which was permitting its entry into the
waters of the United States. On September 28, 1987, EPA
filed its own suit against the City pursuant to 33 U.S.C.
§ 1319. On November 25, 1987, petitioners moved to
intervene in or consolidate the EPA suit with their origi-
nal action; that motion was denied. In March 1988 the
Arkansas Health Department again expanded the area of
the Imminent Health Threat Zone east of the City of
Green Forest.
Subsequent to the filing of petitioners’ suit, Tyson
voluntarily ceased land application of sludge from its
pretreatment plant in the Green Forest area. The City’s
plant construction got on schedule and was completed in
June 1988, after which no further permit violations
occurred.
Just prior to trial of this action, the City and EPA
sought approval of a consent decree in the EPA case. In
light of the proposed consent decree, the petitioners
9
again sought to consolidate and/or an opportunity to
intervene to oppose the settlement. On March 24, 1989
these motions were also denied, and the trial court, with-
out conducting a hearing on the adequacy of the consent
decree, approved settlement of the EPA action on March
29, 1989, in which the City paid a fine of $15,000.
The trial of this action began April 4, 1989. On April
12, 1989 the trial court entered summary judgment
against petitioners on their CWA complaint against the
City, holding the City’s settlement with EPA was res
judicata as to their claim. During the final days of the
trial, in May 1989, the POTW was again upset and Dry
Creek was polluted. The jury returned a verdict on May
12, 1989, against Tyson on petitioners’ common law
claims, and found Tyson guilty of forty-three (43) viola-
tions of the CWA.
On April 18, 1989, petitioners filed a Notice of
Appeal from the order denying them intervention in the
EPA action.
On June 16, 1989, petitioners moved for assessment
of CWA penalties against Tyson and for injunctive relief.
On June 29, 1989 Tyson moved for judgment NOV. On
August 24, 1989 the trial court denied Tyson’s motion for
judgment NOV and entered judgment for civil penalties
of $43,000 against Tyson under the CWA. On September
7, 1989 Tyson moved for reconsideration of its request for
judgment NOV and/or for a new trial; those motions
were denied November 28, 1989. Petitioners filed their
Notice of Appeal on September 25, 1989. Tyson appealed
on October 10, 1989.
On December 28, 1989 Tyson appealed from the trial
court’s denial of its motion to reconsider, and petitioners
10
filed a cross-appeal on January 3, 1990. On appeal, peti-
tioners’ case against the City and Tyson was consolidated
with petitioners’ appeal of the trial court’s failure to
allow intervention of the EPA action against the City.
The Eighth Circuit, in its opinion, reversed the trial
court on a number of issues related to the petitioners’
common law claims against respondents, including the
failure of the trial court to grant petitioners a punitive
damage instruction, the exclusion by the trial court of a
substantial portion of the potential evidence related to
the history of the situation, and a number of directed
verdicts granted by the trial court concerning some of the
petitioners’ common law claims. The appellate court also
ruled that the damage instruction as related to peti-
tioners’ property was erroneous and reversed that aspect
of the case against both defendants.
The court agreed with petitioners that the trial court
erred in failing to instruct the jury that a violation of a 30-
day average permit requirement was equivalent to thirty
(30) separate daily violations, but concluded it was harm-
less error. Judge Lay dissented on this issue. The court
also rejected petitioners’ argument that the amount of
fines levied by the trial court against the City and Tyson
were inconsistent with the statute and the evidence. The
court agreed with petitioners that the trial court should
have granted petitioners right of intervention in the EPA
action but held that petitioners’ objections to the consent
decree were considered by the trial judge and hence the
error was harmless. The court concluded that the consent
decree entered in the EPA action was res judicata as to
petitioners’ claim against the City, even though that claim
was properly filed prior to the EPA’s action under the
CWA’s citizen suit provision, but ordered a remand with
1]
regard to the CWA action as related to the City in order
for the trial court to determine petitioners’ attorneys’ fees
under the CWA.
The court rejected all of Tyson’s arguments on appeal
concerning the CWA. These included an argument by
Tyson that petitioners lacked a good faith basis for alleg-
ing future violations of the Act; that petitioners’ claim
was mooted or was otherwise precluded by virtue of the
failure of the EPA to bring an action against Tyson, which
Tyson attempted to equate with a determination that it
was not guilty of pass-through or interference; that settle-
ment between the EPA and the City had mooted or was
otherwise res judicata to the petitioners’ claim against
Tyson; that the administrative order entered into between
the City and ADPC&E, in which the City agreed to
require pretreatment on the part of Tyson, constituted
prior enforcement; that Tyson’s compliance with dis-
charge limits set forth in the aforementioned state admin-
istrative order entitled it to assert a “local limit” defense;
and, finally, that the terms “pass-through” and “inter-
ference”, as used in the Act, were inadequately defined
and, hence, prohibitively arbitrary to be enforced.
Lp.
4
REASONS TO GRANT THE WRIT
1.
WHETHER A CITIZEN SUIT BROUGHT UNDER 33
U.S.C. § 1365 CAN BE PRECLUDED BY THE ENTRY OF
A CONSENT DECREE BETWEEN THE EPA AND A
POLLUTER IN AN ACTION INITIATED BY THE EPA
AFTER THE CITIZENS’ SUIT WAS FILED.
Petitioners contend that the settlement of an enforce-
ment action by the EPA under the CWA, subsequent to
12
the proper initiation of a citizens’ suit under 33 U.S.C.
§ 1365 of the CWA, does not have a res judicata effect on
the citizens’ suit action.
This issue has not been previously addressed by this
Court. It has been addressed by at least one other circuit
and other district courts, all of which have found con-
trary to the appeals court below.
The appellate court erroneously concluded that the
entry of a consent decree in an enforcement action com-
menced subsequent to the filing of a citizens’ suit pur-
suant to 505(a) of the CWA [33 U.S.C. § 1365(a)]
precluded the prosecution of a previously filed citizens’
suit. Section 505(a) provides that:
... 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 limitation under this chapter . .
This right is only limited by subparagraph (b), which
provides:
(b) No action may be commenced -
(1) under subsection (a)(1) of this section —
(A) prior to sixty days after the plain-
tiff has given notice of the alleged viola-
tion (i) to the Administrator, (ii) to the
State in which the alleged violation
occurs, and (iii) to any alleged violator
of the standard, limitation, or order, or
(B) if the Administrator or State has
commenced and is diligently prosecut-
ing 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
13
any citizen may intervene as a matter of
right.
This Court has recognized that Congress intended for
the EPA to have the primary role in enforcing the Act.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49 (1987). It is clear, however, that Congress
intended for EPA to either exercise its role as primary
enforcer or yield to the citizen’s enforcement mechanism.
This is borne out by the plain language of the statute, its
legislative history, and relevant case law.
The Act requires that prior notice be afforded the
EPA before a suit can be initiated by the citizen. The
reason for requiring such notice is set forth in the legisla-
tive history.
In order to further encourage and provide for
agency enforcement, the Committee has added a
requirement that prior to filing a petition with
the court, a citizen or group of citizens would
first have to serve notice of intent to file such
action on the Federal and State water poilution
control agency and the alleged polluter.
* * *
The Committee has provided a period of time
after notice before a citizen may file an action
against an alleged violator. The time between
notice and filing of the action should give the
administrative enforcement office an oppor-
tunity to act on the alleged violation.
It should be emphasized that if the agency had
not initiated abatement proceedings following
notice or if the citizen believed efforts initiated
by the agency to be inadequate, the citizen
might choose to file the action.
* * *
14
It is the Committee’s intent that enforcement of
these control provisions be immediate, that citi-
zens should be unconstrained to bring these
actions, and that the courts should not hesitate
to consider them.
U.S. Code Cong. and Ad. News pp. 3745-3746.
The statute prohibits the commencement of an action
if the appropriate governmental agency is diligently
enforcing the Act. However, in the absence of govern-
mental enforcement, the citizen’s role becomes central.
Had Congress not intended this result it could have eas-
ily stated, “No action may be commenced or main-
tained . . . if the Administrator has commenced and is
diligently prosecuting” an action. Congress chose not to
include this limiting language in the original bill, nor has
it adopted such language in any of its subsequent CWA
amendments.
The appellate court’s decision effectively creates a
new limitation on a citizen’s right to maintain an action —
a limitation which Congress chose not to include. Under
this holding, citizen suits would be prohibited from pro-
ceeding when the Administrator subsequently commences
and settles an enforcement action. Thus, EPA’s failure to
take action upon receiving the citizens’ sixty-day notice
of intent to file suit, an event which Congress clearly
intended to either encourage agency action or trigger the
citizen’s right to commence and prosecute an enforce-
ment action, no longer guarantees the citizen that his suit
will be prosecuted to finality.
Other language in the Act suggests that the Eighth
Circuit’s holding is contrary to Congress’ intent. Section
505(c) [added with the 1987 CWA amendments (P.L.
100-4)] allows the EPA the right of intervention in a
li
15
citizen suit. 33 U.S.C. § 1365(c)(2). This demonstrates that
once the jurisdictional requirements of 505(b) are met,
Congress contemplated that the government’s role would
become secondary to that of the citizen. Had Congress
intended otherwise, then this provision would be super-
fluous. EPA would have no need for a right of interven-
tion had Congress intended for it to file a separate action,
independent of the citizen’s action, and exercise what
amounts to a veto power over a properly initiated citi-
zen’s suit.
The 1987 amendments also provided for EPA to
review and comment on proposed consent decrees
between a citizen-plaintiff and the polluter. 33 U.S.C.
§ 1365(c)(3). Again, this contemplates EPA playing a sec-
ondary role once it declines to initiate its own enforce-
ment action in response to the citizen’s notice.
Congress clearly intended to give EPA the first right
to enforce. Thus, the sixty-day notice requirement was
included. If EPA takes appropriate action upon receiving
its notice, then citizens may only intervene. If the EPA
fails to enforce and the citizens file their action, then EPA
is allowed to intervene in the citizen’s action and to
comment upon any consent decree between the citizen
and the violator. The effect of the decision below is to
alter this scheme in that a citizen may not prosecute his
action to a conclusion if the EPA belatedly acts.
Both Sierra Club v. Simkins Indus., Inc., 617 F. Supp.
1120 (D.C. Md. 1985), and Connecticut Fund for the Envi-
ronment v. Job Plating Co., Inc., 623 F. Supp. 207 (D. Conn.
1985), addressed the argument that a subsequent state
administrative enforcement action is diligent prosecution
for purposes of § 1365(a)(1)(B). Both courts held that only
16
prior enforcement action constitutes ‘diligent prosecution’
that would preclude the filing of the citizen suit.
In Atlantic States Legal Found., Inc. v. Koch Refining
Co., 681 F. Supp. 609 (D. Minn. 1988), the court, in dealing
with a motion to dismiss based on a subsequently filed
EPA enforcement action, found the plain language of
§ 1365 to be conclusive. It also found that, “[e]very court
which has considered the issue has concluded that sec-
tion 1365 precludes dismissal of a properly filed citizen
suit as a result of subsequent governmental enforcement
action.” (citations omitted). Id., at 613.
In Sierra Club v. Coca-Cola Corp., 673 F. Supp. 1555
(M.D. Fl. 1987) the citizens’ group filed suit and shortly
thereafter the EPA instituted its enforcement action. The
cases were consolidated on the citizens’ group’s motion
(as petitioners herein requested), and the EPA and the
violator sought to resolve the action through the entry of
a consent decree, which the citizens’ group opposed.
While noting that Congress intended for the EPA to be
the primary enforcer of the Act, the court recognized that
this could not change the rule that a consent decree could
not affect the rights of a non-consenting party. [See,
United States v. City of Miami, 664 F.2d 435 (5th Cir. 1981)].
Thus, the citizens’ action was allowed to survive the
entry of the consent decree.
Finally, in Chesapeake Bay Found., Inc. v. American
Recovery Co., Inc., 769 F.2d 207 (4th Cir. 1985) the Fourth
Circuit held that a subsequently filed government action
did not bar the citizen’s action. The appeal was held to be
moot, but only because a proposed consent decree
between the government and the polluter was sanctioned
by the plaintiff, who characterized it as a “’good’ settle-
ment to which it had no objections.” 769 F.2d at p. 209.
17
Absent the citizen’s express approval of the proposed
consent decree, the previously filed suit would have been
allowed to continue notwithstanding the consent decree.
In short, there is no authority under any case that has dealt
with this issue for the holding below.
Here, a consent decree to which the citizens objected
was allowed to have a preclusive effect on their previ-
ously initiated action, without affording them a hearing
in which to present their position and arguments.* The
citizens prosecuted their case against the City for more
than two years, and produced evidence of over a thou-
sand CWA violations, upon which they had previously
moved for summary judgment. The EPA took no action to
enforce the Act for almost fifteen years, and only filed suit
after the plaintiffs were properly in court.
4 After denying petitioners an opportunity to intervene in
the EPA action, and entering the consent decree without
affording a hearing, the trial judge gave the decree res judicata
etfect on the petitioners’ CWA action against the City. The
Eighth Circuit agreed it was error not to permit the interven-
tion, but held the error harmless on the grounds that the trial
court had considered petitioners’ position in rejecting their
intervention. The petitioners contend that the opportunity to
file objections is not equivalent to a hearing on the merits. This
is particularly true where the trial court clearly was acting
under the misimpression that petitioners were not appropriate
parties to the proceeding, and that he “lacked subject matter
jurisdiction to hear petitioner objections” (Appendix at App.
76).
While petitioners contend that the appellate court erred in
holding the district court’s failure to allow intervention harm-
less, this error is overshadowed by the greater error herein
addressed. Obviously, had the trial court not given res judicata
effect to the consent decree, any error in failing to permit
intervention would in fact have been harmless.
18
To allow a consent decree which provided for a mere
$15,000 in civil penalties to terminate petitioners’ action
undermines Congress’ intent behind allowing citizens to
enforce the Act. If this decision stands on review, this
critical aspect of the CWA will remain in conflict, and the
viability of the citizen suit as an enforcement tool under
the Act will be in question.
2.
WHETHER CIVIL PENALTIES ASSESSED AGAINST
TYSON AND THE CITY UNDER THE CWA WERE
PROPERLY DETERMINED.
(a) WHETHER IT IS PERMISSIBLE UNDER THE SEV-
ENTH AMENDMENT FOR A TRIAL COURT TO
“CONSTRUE” AN INHERENTLY AMBIGUOUS
JURY VERDICT IN ORDER TO DETERMINE AN
ISSUE OF FACT.
The issue of whether the CWA has been violated and,
if so, how many violations there have been, is a jury
question. Tull v. United States, 481 U.S. 412 (1987). In this
case the Court of Appeals has in effect sanctioned the
trial court’s determination of this issue by permitting him
to “construe” an ambiguous jury verdict.
Due to the overwhelming scope and duration of the
CWA violations involved in this case, petitioners at trial
focused on the principal permit criteria, i.e., monthly
average violations of BOD and TSS.5 Under the CWA, an
indirect discharger — such as Tyson in this case — can be
guilty of pass-through or interference only if the permit
> There were also violations of document keeping, labora-
tory testing procedures, failure to provide various forms of
information to the regulatory agencies, etc. There were addi-
tional violations, such as seven-day average violations.
19
holder (the City) is in violation of its permit as a result of
such interference or pass-through. The foundational
record of the number of violations is the Discharge Mon-
itoring Reports (“DMR’s”), filed monthly with the regula-
tory agencies. These reports set forth violations only in
terms of 30-day and 7-day averages.®
A violation of a 30-day average amounts to 30 sepa-
rate daily violations for the purposes of the Act. Atlantic
States Legal Found., Inc. (“ASLF”) v. Tyson Foods, Inc., 897
F.2d 1128, 1139 (11th Cir. 1990); Chesapeake Bay Found., Inc.
v. Gwaltney of Smithfield Ltd., Inc., 791 F.2d 304, 314 (4th
Cir. 1986). In view of the nature of the evidence before the
jury, the petitioners sought an instruction from the trial
court explaining to the jury that a 30-day average viola-
tion should be considered as 30 separate daily violations.
The trial court declined this instruction. The majority
opinion below agreed this was erroneous, but held that
the jury could have discerned the number of daily viola-
tions on their own. However, the trial court did not
instruct the jury to determine the number of daily viola-
tions, but simply instructed the jury to determine the
number of violations. Clearly, without independent
knowledge that the issue was the number of “daily”
violations, the jury could not know that a single 30-day
average violation constitutes 30 separate violations.
As a result of this error, the trial court had to “con-
strue” the decision of the jury to mean “violations on 43
separate days”, 720 F. Supp. 133, 138, Appendix at App.
44, 58. This, in spite of the fact that a clear reading of the
6 Contrary to the assertions of the majority opinion below,
there was no documentation presented to the jury which
reflected the number of permit violations on a daily basis.
20
DMR’s reflects that the number of actual violations fal-
ling within the statute of limitations would be somewhere
in excess of 1,200.
As Chief Judge Lay stated in his dissenting opinion:
The district court refused to give plaintiffs’ pro-
posed instruction that would have explained to
the jury that each monthly average violation
must be construed as 30 individual daily viola-
tions. The majority concedes that the court erred
in refusing to give this instruction, which is
firmly rooted in the text of the Act. The jury
found 43 violations, an erroneous figure that
does not correspond to any view of the evi-
dence. The district court admitted the verdict
was ambiguous when the [trial] judge stated he
had to “construe” the verdict to mean there
were violations on 43 separate days.
No doubt the faulty instruction confused the
jury. There is nothing in the record that makes
me confident that they determined the correct
number of violations. Perhaps too eager to avoid
relitigation of this case, the majority simply
declares the error harmless and attempts no
analysis or explanation for its decision. The
majority goes on to affirm the [trial] judge’s
penalty calculations, relying on the fact that the
calculations are discretionary. The [trial] judge’s
discretion to set the amount of the penalty, how-
ever, does not carry over into the jury's province to
determine the number of violations. (emphasis
added)
921 F.2d 1394, 1412; Appendix at App. 39, 40.
The Eighth Circuit’s majority opinion in allowing the
trial judge to “construe” such an ambiguous finding was,
in effect, allowing the trial judge to determine the
number of violations. Indeed, in their opinion, Appendix
at App. 28, in discussing the trial court’s construction of
the jury’s verdict, the majority opinion states:
21
The [trial] court stated that it had heard and had
the benefit of the entire record in the case. Id., at
137. The opinion indicates, moreover, that the
[trial] court considered the law applicable to the
assessment of penalties. For example, in the sec-
tion addressing Gwaltney, the [trial] court
referred to the Fourth Circuit’s holding that
each violation of monthly averages for dis-
charge of pollutants amounts to a violation for
each day of the month. Id., at 135.
921 F.2d 1407.
The Eighth Circuit, in its opinion, goes on to state
that the majority would have been more comfortable with
the jury instructions had they clearly articulated the rule
with respect to the monthly average permit violations.
It is not sufficient that the trial judge heard the
evidence, or that he understood the necessary law. It is
the jury which must be properly instructed on the law
such that it can reasonably be assumed they applied it. As
the case currently stands, all one can say is that a jury
participated in the fact-finding process. However, it is
clear on both courts’ records that the jury did not make
the findings — the trial court did.
A truly harmless error in instructing a jury would not
require the trial court to “construe” the verdict, or leave
the appellate court uncomfortable and relying upon the
trial judge’s interpretation of the facts based on his
knowledge of the record. Stating this issue differently, the
question is to what extent a trial court can call upon its
own knowledge of a case and controlling law to cure a
defect in the instruction to the jury and not violate the
Seventh Amendment to the Constitution. Petitioners
assert this is a significant issue worthy of this Court's
consideration.
22
(b) WHETHER A TRIAL COURT HAS ABSOLUTE
DISCRETION IN ASSESSING PENALTIES
UNDER THE CWA, OR IS OBLIGED TO APPLY
THE CRITERIA SET FORTH IN § 309 OF THE
ACT.
The consent decree between EPA and the City pro-
vided for the City to pay civil penalties of $15,000. The
district court assessed civil penalties against Tyson of
$43,000. Both amounts were affirmed on appeal. This
represents 10% of the total penalties which could have
been assessed against Tyson, based on the trial court’s
construction of the jury’s verdict as meaning 43 daily
violations, and an infinitesimal percentage of the City’s
potential liability, based on the number of undisputed
violations appearing on the face of the DMR’s.”
This Court, in Tull v. United States, 481 U.S. 412
(1987), made clear that economic gain and restoration of
the status quo is not the only basis on which penalties
should be awarded under the CWA. The EPA penalty
policy is an important guide, as recognized by this Court
in Tull. Petitioners submitted this Penalty Policy and
requested that the district court follow its guidance, as set
forth in Tull.
7 If the jury actually determined 43 monthly violations by
Tyson this would equal 1,290 separate daily violations, and
Tyson’s maximum penalty would have been $12.9 million. The
1987 CWA amendments [P.L. 100-4, at 33 U.S.C. § 1319(d)]
provide additional guidance to determine civil penalties, say-
ing the court should consider the seriousness of the viola-
tion(s), the economic benefit (if any) resulting from the
violation(s), any history of such violation, any good-faith
efforts to comply with applicable requirements, economic
impact of the penalty on the violator, and such other matters as
justice may require.
23
The Eleventh Circuit, applying Tull, set forth the
following procedure for assessing civil penalties:
Upon remand, the district court should first
determine the maximum fine for which Tyson
may be held liable. If it chooses not to impose
the maximum, it must reduce the fine in accor-
dance with the factors spelled out in § 1319(d);
clearly indicating the weight it gives to each of
the factors in the statute and the factual findings
that support its conclusions. While the court
may find the EPA’s Penalty Policy helpful in
determining the appropriate fines, the court’s
primary focus should be on the language of
§ 1319(d).
ASLF v. Tyson Foods, Inc., 897 F.2d at 1142.
In affirming the trial court’s penalty assessment in
this case, the Eighth Circuit has ignored the direction of
the Tull decision and, in effect, granted the district court
near absolute discretion in assessing penalties. Indeed, in
regard to the penalties assessed against the City, the
record reflects that the trial court did not perform a
penalty analysis at all, since it was operating under the
erroneous impression that the petitioners had no stand-
ing in the proceedings, that the court lacked subject mat-
ter jurisdiction to consider the proposed consent decree
reached in the EPA’s action against the City, and that this
decree was res judicata on the petitioners’ citizens’ suit.
Such facts as the City collecting an average of $10,520 per
month from Tyson at certain times was not considered.
With regard to Tyson, few if any of the factors set out
in § 1319(d) were considered. Testimony of Tyson’s own
employee revealed that Tyson saved approximately $1
million per year by not complying with its obligations
under the Act, and their violations dated back to the date
the Act was passed. Tyson declined to comply with its
24
obligations under the Act until the Governor declared a
disaster area. The violations resulted in the contamina-
tion of a 56-square-mile area of groundwater. The net
worth of Tyson and its ability to pay the fine was cer-
tainly never considered. There was, in fact, absolutely no
justification recited in the trial court’s opinion for assess-
ing less than the maximum penalty allowed for the 43
violations that the trial court “construed” from the jury’s
verdict.
In affirming the trial court’s assessment of penalties,
the Eighth Circuit has clearly departed from the holdings
of Tull, 481 U.S. 412, and the Eleventh Circuit’s recent
decision in ASLF v. Tyson Foods, Inc., 897 F.2d 1128.
3.
WHETHER AN APPELLATE COURT CAN SUM-
MARILY AND WITHOUT EXPLANATION DENY
ATTORNEYS’ FEES AND COSTS TO CITIZEN PLAIN-
TIFFS WHO HAVE SUBSTANTIALLY PREVAILED IN
A CITIZENS’ SUIT ACTION BROUGHT PURSUANT
TO 33 U.S.C. § 1365.
After the petitioners brought their citizens’ suit
action in this case, Tyson ceased land-applying sludge in
the Green Forest area, thereby abating a continuing risk
to the groundwater and surface waters in the Imminent
Health Threat Zone where the petitioners resided. Con-
struction of the City’s new POTW was finally completed
and it became operational. In spite of numerous errors
committed by the trial court, the petitioners succeeded in
principle on their common law actions against Tyson,
which were associated with its unlawful conduct, and
established that Tyson was guilty of violating the CWA
25
and, presumably, encouraged the EPA to take at least
some action against the City under that Act.
On appeal, petitioners successfully resisted
numerous legal assaults by which Tyson sought to escape
legal responsibility under the CWA, and established their
right of intervention in the EPA action and thus their
right to have attorneys’ fees and costs assessed with
regard to their efforts under the Act, associated with the
City’s violations. As such, at the conclusion of the appeal
in this case, the petitioners clearly stood in the position of
a “prevailing party”, as that term has been defined in
connection with statutorily established attorneys’ fee
claims.
Specifically, it has been held that a party need not
prevail upon all issues or an entire claim in order to be
entitled to attorneys’ fees. Texas State Teachers v. Garland
Indep. School Dist., 489 U.S. 782 (1989). Rather, if the
petitioners prevail on any significant issue in this litiga-
tion which achieves some of the benefits the parties
sought in bringing the action, they have prevailed suffi-
ciently to be entitled to a fee assessment. Hensley, infra. It
has also been held that a party prevailing upon causes of
action closely associated with those for which attorneys’
fees awards are statutorily established can be deemed to
have prevailed. Hensley v. Eckerhart, 461 U.S. 424 (1983);
Maher v. Gagne, 448 U.S. 122, 132 n.15 (1980); Oldham v.
Ehrlich, 617 F.2d 163 (8th Cir. 1980). Further, conduct on
the part of a defendant brought about by litigation can
satisfy the prevailing party requirement so as to justify
the award of statutory attorneys’ fees. United Handicap
Fed'n v. Andre, 622 F.2d 343 (8th Cir. 1980).
These proceedings at the Eighth Circuit represented
the consolidation of two separate cases. In its appellants’
26
brief Tyson raised six issues, all dealing with the CWA.
Petitioners raised twelve issues, and the City and the EPA
raised an additional four issues to which petitioners had
to reply. Altogether there were nearly 300 pages of briefs
filed in this matter, and the combined appendices
exceeded 1,500 pages. Petitioners documented over five
hundred hours combined effort expended on appeal by
the three law firms representing the petitioners.
In spite of the complexity and difficulty of the case,
the effort expended, and the fact that petitioners pre-
vailed on CWA issues (and, indeed, most of the issues on
appeal in general), the Eighth Circuit summarily, and
without explanation, or even waiting to hear from Tyson,
denied petitioners’ prayer for an award of attorneys’ fees
under 33 U.S.C. § 1365(b). When petitioned to reconsider
and/or clarify its order denying attorneys’ fees, the
Eighth Circuit declined to do so.
Heretofore, the opinions of this Court and other
courts have been to the effect that, absent some special or
unusual circumstance, statutory schemes such as the one
in question which provide for attorneys’ fees entitle a
“prevailing party” to an award of a reasonable attorneys’
fee, Hensley, 461 U.S. 424. As stated by the Eleventh
Circuit in ASLF v. Tyson Foods, Inc., 897 F.2d 1128, 1143:
The award of fees is within the discretion of the
district court; however, the sound exercise of
that discretion will not allow the court to deny
fees and costs absent good cause. In a case like
the instant one, where a citizens group has suc-
ceeded on the merits, we cannot conceive of any
grounds that would justify a denial of fees and
costs.
In this case, there is no such ‘special circumstance’
obvious on the face of the record. And, as indicated, the
appeals court articulated none.
27
While the appropriateness of an attorneys’ fee award
inherently involves the use of discretion on the part of
the assessing court, and is to be judged on that basis, the
process should nevertheless be a reasonable one, based
upon the appropriate considerations, and not arbitrary.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717
(Sth Cir. 1974). As the court stated in that case:
The reasonableness of the award is to be judged
by the abuse of discretion standard of review.
Weeks v. Southern Bell Tel. & Tel. Co., supra; Cul-
pepper v. Reynolds Metals Co., supra. But in uti-
lizing this standard we must carefully review
the basis upon which the District Court made its
award.
It is at this juncture that we have difficulty with
the district court order. The judgment does not
elucidate the factors which contributed to the
decision and upon which it was based. No cor-
relation to the facts and figures submitted by the
plaintiffs is visible.
It has been observed that one of the principle pur-
poses behind the attorneys’ fee criteria which this Court
has evolved has been to remove the subjective process
which otherwise would prevail with likely disparate
results. Pennsylvania v. Delaware Valley Citizens Council,
478 U.S. 546 (1986) at 3096; Norman v. Housing Authority of
Montgomery, 836 F.2d 1292, at 1299 (11th Cir. 1988).
The Eighth Circuit’s response to petitioners’ claim in
this case is even more puzzling than was the district
court’s finding in Johnson, supra.
As it currently stands, this case raises the question as
to whether a court is free to essentially ignore a petition
for attorneys’ fees, filed by a prevailing party, under a
statutory scheme which contemplates the award of attor-
neys’ fees for a prevailing party. Petitioners assert that
the appellate court’s decision in this regard is clearly
28
contrary on its face to the intent of the Act and this
Court’s decisions construing attorneys’ fee provisions.
This decision has serious implications for the viability not
only of the citizens’ suit provision of the CWA but in
other federal statutory schemes providing for the award-
ing of attorneys’ fees, since this Court has held that
similar attorneys’ fee provisions should be interpreted
pari passu. Northcross v. Memphis Bd. of Educ., 412 U.S. 427
(1973).
The citizens’ suit provision of the CWA and other
federal environmental regulatory schemes are potentially
powerful enforcement adjuncts to the activities of the
relevant government agencies. The appellate court’s
response to petitioners’ fee application implies yet
another element of risk for attorneys representing citizen
plaintiffs. Not only must counsel consider the inherent
difficulties of the litigation itself, along with other factors
of risk, but, under the precedent set in this case, counsel
may find no compensation at the end, even if successful;
nor, indeed, even an explanation.
y
v
CONCLUSION
All three issues addressed above are appropriate for
review by this Court, and have a significance beyond the
interests of the parties to the suit. However, the real
significance of this case, in light of the Eighth Circuit’s
opinion, cannot be adequately gleaned from an analysis
of the individual issues enumerated above alone.
This case represents the type of citizen suit which
Congress doubtless had in mind when it conceived of
§ 1365; a suit prosecuted by the citizens who were being
29
directly affected by the violator’s conduct. The peti-
tioners herein endured a decade and a half of abuse as a
result of conscious conduct on the part of the City of
Green Forest and Tyson Foods, while the governmental
agencies charged with enforcement cf the Clean Water
Act took little or no action.
At this point, the penalties assessed in this case are a
paltry fraction of those called for under the Act; the
petitioners have had their right to enforce the Act against
the City all but completely denied; and have been told
that they or their attorneys must bear the costs of the
appeals process which they prosecuted to enforce the Act
in this case.
These results issue from holdings by the Appellate
Court which are either in conflict with the holdings in
other circuits or with this Court’s prior decisions. In part,
the errors in question may be the result of the large
number of trial court errors which the Court of Appeals
had to review. See, Appellate Court opinion, Appendix at
App. 2. Or, they may be the result of too great a concern
for “judicial economy” as Judge Lay suggested in his
dissent. Whatever the reasons, if these errors are not
corrected this case will have an adverse impact on the
viability of the citizen suit enforcement mechanism of the
Clean Water Act, especially as it applies to citizen victims
such as the petitioners herein. Further, the role of the
citizen suit as related to subsequently filed EPA actions
will remain in dispute.
30
Wherefore, petitioners pray that their petition for a
writ of certiorari to the United States Court of Appeals to
the Eighth Circuit be granted.
Respectfully submitted,
James Bruce McMatn 75090
(Counsel of Record)
THe McMatn Law Firm, P.A.
711 West Third Street
Little Rock, AR 72201-2201
(501) 376-3021
James G. LINGLE
Lincte & Cor ey, P.A.
P.O. Box 652
Rogers, AR 72757-0652
(501) 636-7899
SamuEL E. Lepsettrer
Nicuots, Worrr & Lepsetter, P.A.
1650 Worthen Bank Building
200 W. Capitol Avenue
Little Rock, AR 72201
(501) 372-5659
Attorneys for Petitioners
App. 1
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 89-1661-WA
UNITED STATES :
ENVIRONMENTAL .
PROTECTION AGENCY, *
Appellee, * a
* Appeal from the United
_ <e " ee __ -* States District Court for
CITY OF GREEN FOREST, * the Western District of
ARKANSAS, * Arkansas
Appellee, ~°
LEWIS STEPHEN WORK, ,
et al., ‘
Appellants/Intervenors +
Nos. 89-2549-WA, 89-2636-WA,
90-1011-WA & 90-1041-WA
App. 2
Argued: October 10, 1990
Filed: December 18, 1990
Before LAY, Chief Judge, BRIGHT, and TIMBERS,” Circuit
Judges.
TIMBERS, Circuit Judge:
Appellants Lewis Stephen work, et al. (the citizens or
Work) appeal from two orders entered December 3, 1987
and March 24, 1989 in the Western District of Arkansas,
Oren Harris, Senior District Judge. The first denied inter-
vention in a government environmental enforcement
action or consolidation of that action with an earlier
citizens’ action. The second denied another motion for
intervention in the Environmental Protection Agency
(EPA) action. The citizens appeal also from final judg-
ments entered June 19, 1989 and August 24, 1989 after
trial of the citizens’ action. Appellee/cross-appeilant
Tyson Foods, Inc. (Tyson) appeals from the final judg-
ments. Tyson also appeals, and the citizens cross-appeal,
from the denial of Tyson’s motion for reconsideration
filed November 28, 1989. All appeals have been consoli-
dated.
Work commenced the citizens’ action against Tyson
and the City of Green Forest (the City or Green Forest) on
March 3, 1987, asserting claims pursuant to both the
Clean Water Act (the Act or CWA), 33 U.S.C. §§ 1250-1387
* Of the Second Circuit, sitting by designation.
App. 3
(1988), and common law. On September 28, 1987, the EPA
commenced an action against Green Forest and the State
of Arkansas pursuant to the CWA. The government
enforcement action resulted in a consent decree. The citi-
zens’ action proceeded to trial, resulting in a verdict
against Tyson under the CWA; against Tyson and for the
citizens on the common law claims; and for Green Forest
on the citizens’ remaining claims. The court previously
had granted partial summary judgment for the City, dis-
missing the CWA claims against it. The court assessed
penalties against Tyson pursuant to the CWA, payable to
the United States Treasury.
On appeal, Work sets forth a laundry list of claimed
errors by the district court: (1) in denying their motion to
intervene and/or denying their motion to consolidate; (2)
in dismissing their claims against Green Forest under the
CWA; (3) in calculating the penalties assessed against
Tyson under the CWA; (4) in various evidentiary and
instruction-related matters; and (5) in dismissing medical
claims of ten employees, directing a verdict against Patri-
cia Hudson, and directing a verdict to deny an award of
punitive damages.
On cross-appeal, Tyson also claims that the district
court erred in various other respects, including: (1) in its
instruction to the jury on discharger liability; (2) in failing
to grant Tyson’s motion for a directed verdict; and (3) in
failing to grant Tyson’s motion to dismiss.
For the reasons set forth below, we reverse the sec-
ond order of the district court denying intervention in the
government enforcement action and remand for the lim-
ited purpose of assessing attorneys’ fees; we affirm the
App. 4
final judgment entered in the citizens’ action with respect
to the CWA claims; and we affirm in part and reverse in
part with respect to the common law claims.
I.
We summarize only those facts and prior proceedings
believed necessary to an understanding of the issues
raised on appeal. We also summarize briefly the statutory
background of the CWA.
(A)
The CWA, enacted in 1972, creates a comprehensive
program “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). As part of that program, § 301(a) of the Act, 33
U.S.C. § 1311(a), prohibits all discharges of pollutants
into navigable waters except those made in compliance
with other sections of the Act, including § 402, 33 U.S.C.
§ 1342, which establishes the National Pollution Dis-
charge Elimination System (NPDES).
Section 402(a) provides that the EPA shall issue
NPDES permits authorizing effluent discharges in strict
compliance with conditions specified in the permit. 33
U.S.C. § 1342(a). Section 402(b) allows each state to
develop and administer its own permit program, pro-
vided that the program meets federal requirements. 33
U.S.C. § 1342(b). And Section 402(c) provides that the
EPA shall suspend issuance of federal permits upon
determining that a state has adequate authority to imple-
ment and enforce the permitting program within the
state. 33 U.S.C. § 1342(c).
App. 5
The Act directed the Administrator of the EPA to
promulgate regulations setting limits on the pollution
that can be discharged, delineated by three general types
of “point sources,” id. at § 1362(14): sources that dis-
charge pollutants directly into navigable waters (direct
dischargers); publicly owned treatment works (POTWs),
which engage in the treatment of industrial sewage or
industrial wastewater, id. at § 1292(2); and sources that
discharge their pollutants not into navigable waters but
into the POTWs (indirect dischargers). National Ass’n of
Metal Finishers v. EPA (NAMF), 719 F.2d 624, 633 (3d Cir.
1983) (discussing statutory framework of the CWA), rev'd
on other grounds sub nom. Chemical Mfrs. Ass'n v. N.R.D.C.,
Inc., 470 U.S. 116 (1985). “Congress recognized that the
pollutants which some indirect dischargers release into
POTWSs could interfere with the operation of the POTWs,
or could pass through the POTWs without adequate treat-
ment.” Id. Section 307(b)(1) of the Act provides that:
“The Administrator shall . . . publish pro-
posed regulations establishing pretreatment
standards for introduction of pollutants into
[POTWs] for those pollutants which are deter-
mined not to be susceptible for treatment by
such treatment works or which would interfere
with the operations of such treatment works. .. .
Pretreatment standards under this subsec-
tion . . . shall be established to prevent the
discharge of any pollutant through [POTWs],
which pollutant interferes with, passes through
or otherwise is incompatible with such works.”
33 U.S.C. § 1317(b)(1).
For POTWs, the Administrator was to set effluent
limitations based on “secondary treatment,” id. at
§§ 1311(b)(1)(B) and 1314(d)(1). These limitations were to
App. 6
be applied through the NPDES permit for each POTW. Id.
at § 1342; NAMF, supra, 719 F.2d at 633.
The Act authorizes several different enforcement
actions if a NPDES permit holder fails to comply with the
specified permit conditions. Section 309 authorizes the
United States to enforce a federal or state permit through
a variety of administrative, civil, and criminal mecha-
nisms. 33 U.S.C. § 1319. A state may take similar action,
under appropriate state law, in response to a state-issued
permit. Id. at § 1342(b)(7). In addition, section 505(a)(1) of
the Act permits private citizens to commence a civil
action in certain situations against anyone “who is
alleged to be in violation of .. . an effluent standard or
limitation under this chapter,” id. at § 1365(a)(1), which
includes a federal or state NPDES permit or condition
thereof, id. at § 1365(f). No such action, however, may be
commenced under the following circumstances:
“(A) prior to the sixty days after plaintiff
has given notice of the alleged violation (i) to
the Administrator, (ii) to the State in which the
alleged violation occurs, and (iii) to any alleged
violator of the standard, limitation, or order, or
(B) if the Administrator or State has com-
menced 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 inter-
vene as a matter of right.”
Id. at § 1365(b)(1)(b). The CWA specifically provides that
statutory and common law rights are not restricted:
“Nothing in this section shall restrict any right which any
person... may have under any statute or common law to
. » cxccanaall
App. 7
seek enforcement of any effluent standard or limitation or
to seek any other relief... .” Id. at § 1365(f).
(B)
Green Forest is a small town in the Ozark Mountains
of northwest Arkansas. It is located in Carroll County,
which has a topography known as “karst”. Karst is per-
meable limestone readily penetrated by surface water.
Streams frequently submerge and re-emerge. Streams
having an intimate contact with the groundwater system
through sinkholes or other means are called “losing
streams.”
In 1953, the City constructed its POTW at its present
location on Dry Creek, a losing stream. Dry Creek flows
through the area where Work and the other citizens who
commenced the citizens’ action live. It is into Dry Creek
that the POTW discharges.
In 1959, a poultry processing plant, Franz Foods, was
constructed and began discharging a growing waste load
into the POTW. Franz Foods was acquired by Tyson in
1968.
In December 1968, the City sought federal funding to
construct a new POTW capable of meeting secondary
treatment standards. In the grant application process, the
EPA approved plans and specifications for the new
POTW subject te conditions, including limitations on
Tyson discharges. In May 1973, the City requested an
NPDES permit, as required by the CWA, to operate its
new POTW and discharge into Dry Creek, indicating the
POTW should be capable of secondary treatment of
App. 8
waste. The limitations on Tyson discharges however were
not enforced. Tyson did not pretreat its waste or produce
an effluent meeting the required criteria until 1985.
During the early 1970s, residents east of the City
(including several of the citizens involved in this case)
sued Tyson’s subsidiary, Franz Foods, for maintaining a
public nuisance. That action was settled in 1976 after the
City’s new POTW was completed; Franz Foods agreed
not to discharge any waste that would alter Dry Creek’s
existing condition visually or chemically, or that constitu-
ted a violation of any City ordinance, or county, state or
federal law.
The loading on the POTW continued to grow, and the
POTW failed to meet the standards of its original permit.
At the trial of the citizens’ action, Tyson’s expert witness
admitted that, without pretreatment, there would be no
way that a waste from a poultry-processing plant like
Tyson’s could comply with the POTW’s design criteria.
The City received periodic warnings from environ-
mental agencies regarding permit violations and other
problems. When the POTW permit expired on May 1,
1977, a new permit was drafted. The Arkansas State
Department of Pollution Control & Ecology wrote to the
Mayor, stating the need for the City to negotiate a sched-
ule of compliance with Franz Foods. In 1978, on a single-
shift operation, Tyson processed approximately 260,000
pounds of chicken per day. In 1979, Tyson processed
approximately 310,000 pounds of bird per day. POTW
permit violations continued.
In April 1981, the EPA issued a new NPDES permit to
the City for its existing facility, requiring an effluent that
~
App. 9
met higher-quality water standards. In view of the City’s
inability to meet those standards, an administrative order
set interim limits and a timetable for compliance.
In May 1983, a sinkhole opened in Dry Creek. The
creek’s entire flow ran directly into the ground. At this
point, the POTW had a volume in excess of 1,000,000
gallons per day.
At some point in 1984, Tyson’s production changed
from a cut-up operation to a deboning operation, work-
ing with larger birds; this change increased its waste.
Tyson then processed approximately 750,000 — of
chicken per day.
In August 1984, the Arkansas Department of Health
advised the City that a number of wells in the immediate
vicinity of the sinkhole were being affected; that public
water should be made available to the affected residents;
and that the City should make efforts to improve the
quality of the POTW’s effluent.
Tyson completed a pretreatment facility in May 1985.
Once it went on-line, the quality of the City’s POTW
effluent improved dramatically, falling from levels equiv-
alent to diluted domestic sewage to levels well below
secondary treatment standards. Tyson, however, contin-
ued to be the principal load on the POTW, which in turn
continued to violate its now-strict permit. In 1986 Tyson
converted to a double shift operation, processing 92 birds
per minute per shift; this change was made in anticipa-
tion of increasing production capacity to 140 birds per
minute per shift.
App. 10
(C)
On November 28, 1986, the citizens sent notice to all
parties, as required by 33 U.S.C. § 1365(b)(1)(A), of their
intent to sue Tyson and the City pursuant to the CWA.
After the action was commenced, the EPA commenced a
separate environmental enforcement action. On Novem-
ber 25, 1987, Work filed a motion in the EPA action
seeking intervention as of right and seeking consolida-
tion. On December 3, 1987, the court denied the motions.
Work did not appeal immediately from the order denying
these motions.
On January 28, 1989, after engaging in settlement
negotiations, the government lodged a proposed consent
decree with Green Forest. An opportunity for public com-
ment was provided. On March 17, Work filed a second
motion to intervene in the government action. On March
24, the court again denied the motion. On March 29, the
court approved the proposed consent decree. On April
20, Work filed a notice of appeal from the orders denying
their motions to intervene of December 3, 1987 and March
24, 1989.
The separate citizens’ action proceeded to trial. On
April 12, 1989, the court entered partial summary judg-
ment in favor of Green Forest, dismissing Work’s CWA
claims. The court found that the approved consent decree
between the EPA and Green Forest precluded the citizens
from pursuing their CWA claims. On May 12, after a six-
week trial, the jury returned a verdict against Tyson for
254,401.50 on Work’s common law claims and found
Tyson guilty of 43 CWA violations. On June 16, the citi-
zens moved for assessment of CWA penalties against
App. 11
Tyson. On June 19, judgment was entered in favor of the
City and against Work, and in favor of Work and against
Tyson for common law damages. On June 29, Tyson
moved for judgment n.o.v. This was denied on August 24,
at which time the court assessed $43,000 against Tyson for
CWA violations. Judge Harris’ opinion assessing penal-
ties is published at Work v. Tyson Foods, Inc., 720 F. Supp.
132 (W.D. Ark. 1989). On September 7, Tyson moved for
reconsideration, for judgment n.o.v., or for a new trial.
Those motions were denied on November 28.
II.
(A)
We turn first to the threshold question of our jurisdic-
tion to entertain Work’s appeal, filed April 20, 1989, from
the denial of two motions to intervene in the EPA action.
Work claims that his motions for intervention should
have been granted as of right. 33 U.S.C. § 136(b)(1)(B) and
Fed. R. Civ. P. 24(a)(1); see also United States v. Metropolitan
St. Louis Sewer Dist., 883 F.2d 54, 56 (8th Cir. 1989) (hold-
ing that the CWA conferred upon a citizens’ group inter-
vention as of right).
It is well-settled that an order denying a motion to
intervene as of right is a final appealable order. Brother-
hood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S.
519, 524 (1947); Corby Recreation, Inc. v. General Elec. Co.,
581 F2d 175, 176 n. 1 (8th Cir. 1978); Sellers v. United
States, 709 F.2d 1469, 1471 (11th Cir. 1983).
A notice of appeal from such an order must be filed
within sixty days. Fed. R. App. P. 4(a)(1). In the instant
App. 12
case, the notice of appeal from the denial of the first
motion to intervene was not until after nearly sixteen
months. Since an appellate court lacks jurisdiction over
an untimely appeal, United, States v. Metropolitan Dist.
Comm'n, 865 F.2d 2, 4 (1st Cir. 1989), we lack jurisdiction
over the December 3, 1987 order denying intervention.
The appeal from the second order presents a closer
question. On its face, the appeal was filed timely: the
order was entered March 24, 1989 and the appeal was
filed April 20. Relying largely on Hodgson v. United Mine
Workers, 473 F.2d 118 (D.C. Cir. 1972), however, appellees
claim that the second motion “was merely a back door
attempt to revive the trial court’s earlier order so as to
start the time for appeal running anew.”
In Hodgson, the district court denied the appellant's
first motion to intervene as of right on March 10, 1972. On
June 20, the district court denied appellant’s second
motion to intervene. The appellant timely appealed the
denial of the second motion. 473 F.2d at 122-23. On
appeal, the court held that “the question of jurisdiction
must be resolved by ascertaining whether the June 20
order... was merely a reinstatement of the court’s March
10 ruling or whether it constituted a new determination
by the District Court reached under circumstances mate-
rially changed from those existing in March.” Id. at 125.
The court went on to say that “[iJf the later order was
only an attempt to revive the earlier order, it did not start
the time for appeal all over again.” Id. Ultimately, the
court held that there were “changed circumstances” such
that “the June 20 order .. . constituted a fresh evaluation
App. 13
of the intervention application, well within the discre-
tionary power of the District Court to make, and amen-
able to review on the merits by this court.” Id. at 126-27.
Here, too, we find that the context in which the
citizens sought intervention on March 17, 1989 was differ-
ent from the context in which intervention and consolida-
tion had been sought on November 25, 1987. By March
17, 1989, there was a proposed consent decree between
the EPA and the City. In their second motion, the citizens
made specific reference to the proposed settlement and
articulated their specific objections to the consent decree
as well as their concern (which was later confirmed) that
it would be the basis for defendants’ moving for dis-
missal of the citizens’ action on the ground of collateral
estoppel. Although the citizens had expressed concerns
about possible settlement sixteen months earlier, the set-
tlement possibility, in 1987, was merely inchoate. Consis-
tent with Hodgson, we hold that the existence of the
proposed consent decree resulted in a change in circum-
stances that made a renewed motion for intervention
legitimate.
(B)
Since we find it appropriate to exercise jurisdiction
over the appeal from the March 24, 1989 order, we hold
that the court erred in denying the citizens leave to
intervene, since the CWA expressly provides for interven-
tion as of right. Metropolitan St. Louis Sewer Dist., supra,
883 F.2d at 56. Since we find, however, that the district
court’s denial of the motion, for the most part, was harm-
less error, we reverse and remand on that issue only for
App. 14
the limited purpose of permitting the citizens group to
seek attorneys’ fees.
Although Judge Harris denied Work’s formal inter-
vention order, the citizens, de facto, were permitted to
participate. As Judge Harris stated in his order, the citi-
zens had the opportunity, of which they took advantage,
to file their objections to the consent decree during the
available public comment period. There is little else that
they could have done had they formally intervened.
United States v. Ketchikan Pulp Co., 430 F. Supp. 83, 85 (D.
Alaska 1977) (holding that “once intervenors have been
given the opportunity to object to the decree they have
had an appropriate day in court and a judgment on
consent may be entered”). In that case, a consent decree
under the CWA was entered over objections of environ-
mental groups.
In denying the citizens’ motion to intervene, Judge
Harris relied explicitly on our decision in DuBois v.
Thomas, 820 F.2d 943 (8th Cir. 1987). There we held that
the district court was without subject matter jurisdiction
to entertain a citizens’ action commenced to compel the
EPA to take investigatory and enforcement action, duties
which we held were discretionary rather than mandatory.
Although Judge Harris’ reliance on DuBois in denying the
citizens’ intervention motion was somewhat misplaced,
as a practical matter, DuBois supports our holding that
the error here was largely harmless. That is so because
commencing an enforcement action against Green Forest
in the first instance was a discretionary rather than man-
datory duty. Hence, Ultimately settling the action also
was within the EPA’s discretion. Had the citizens inter-
vened, they still would not have been able to compel a
consent decree on their own terms. As we said in DuBois,
the CWA “was not intended to enable citizens to com
mander the federal enforcement machinery.” Id. at 949
The citizens assert, however, that the denial of the
intervention motion robbed them of their right to seek
attorneys’ fees. They point out that the citizens’ suit pre-
dated the EPA action, and that their efforts were instru-
mental in spurring the EPA into finally taking action
against the City. This has some force. We agree that the
citizens should be permitted to seek their fees.
Accordingly, while we will not second-guess the
terms of the consent decree itself, we reverse the denial of
intervention insofar as it precluded the citizens from
seeking their fees, and we remand the case on this issue
for the district court to determine the proper amount of
such fees
IT]
We turn next to the citizens’ appeal from the district
court’s denial of their motion to consolidate. Work asserts
that, since there was little or no difference between the
issues presented in both actions, their motion to consoli
date should have been granted
Although Work failed to designate that the citizens
were appealing from the denial of the motion to consoli
date as well as the denial of the motion to intervene, that
omission was not prejudicial to appellees. Notices of
appeal are to be liberally construed. Fed. R. App. P. 3(c);
McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 659
App. 16
(8th Cir. 1982). We have jurisdiction to review the court's
denial of consolidation on the merits.
Pursuant to Fed. R. Civ. P. 42(a), a district court “may
order” consolidation. The order denying Work’s motion
to consolidate should not be disturbed unless it is deter-
mined that the court clearly abused its discretion. Shump
v. Balka, 574 F.2d 1341, 1344 (10th Cir. 1978); Gentry v.
Smith, 487 F.2d 571, 581 (5th Cir. 1973); 9 Wright & Miller,
Federal Practice and Procedure § 2383 (1971); see also
Chicago, Rock Island & Pacific R.R. v. Williams, 245 F.2d 397,
404 (8th Cir.), cert. denied, 355 U.S. 855 (1957) (discussing
court’s discretion pursuant to Rule 42(b)). The record
here supports the district court’s denial of the motion to
consolidate. The citizens sought punitive damages, com-
pensatory damages for personal injuries, and relief for
many common law tort claims. These claims were not
relevant to the EPA action. Moreover, the citizens’ claims
were to be tried before a jury, while the EPA action was to
be tried before the court.
We hold that, in denying Work’s motion to consoli-
date, the court properly exercised its discretion in the
interests of expedition and economy.
IV.
We turn now to the CWA claims raised by both Work
and Tyson.
(A)
First, the citizens assert error in that they never had a
chance to present their CWA claims against Green Forest.
App. 17
The district court found that the citizens were precluded,
by the doctrines of res judicata and collateral estoppel!
from pursuing their CWA claims. We agree that res judi
cata barred these claims.
The doctrine of res judicata was articulated in Lovell
v. Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983), in which we
explained that
“The doctrine of res judicata bars a later suit
when (1) the first suit resulted in a final judg
ment on the merits; (2) the first suit was based
on proper jurisdiction; (3) both suits involved
the same cause of action; and (4) both suits
involved the same parties or their privies.
[Bjoth [collateral estoppel and res judicata] are
applied only when the party against whom the
earlier decision is being asserted had a ‘full and
fair opportunity’ to litigate the issue in ques-
tion.”
Work concedes that the CWA claims made in thi
citizens’ suit were the same as those made by the EPA. He
argues, however, that, since the citizens were not
involved in the action that resulted in the consent decree
they should not have been precluded from pursuing their
CWA claims independently. We disagree
The citizens’ action provision of the CWA casts the
citizen in the role of a private attorney generai. Atlant
States Legal Found., v. Tyson Foods, Inc., 897 F.2d 1128, 1131
n. 5 (1th Cir. 1990). As the Supreme Court stated
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., In
484 U.S. 49, 60 (1987), however, the CWA was intended t
be enforced primarily by the government
“The bar on citizen suits when governmental!
enforcement action is underway suggests that
App. 18
the citizen suit is meant to supplement rather
than supplant governmental action. The legisla-
tive history of the Act reinforces this view of the
role of the citizen suit. The Senate Report noted
that ‘[t]he Committee intends the great volume
of enforcement actions to be brought by the
State,’ and that citizen suits are proper only ‘if
the Federal, State, and local agencies fail to exer-
cise their enforcement responsibility.’ ”
(Quoting S. Rep. No. 92-414, p. 64(1971), reprinted in 2 A
Legislative History of the Water Pollution Control Act
Amendments of 1972, p. 1482 (1973)). In Gwaltney the
Court held that citizen suits could not be brought for
wholly past violations of the Act, stating that permitting
such suits “could undermine the supplementary role
envisioned for the citizen suit.” Id. at 60. See also DuBois,
supra, 820 F.2d at 949 (the CWA allows citizens to supple-
ment government enforcement power).
In this case, we are faced squarely with the question
whether citizens’ claims brought prior to a government
action are properly dismissed when a consent decree is
entered in a later-filed EPA action. Recognizing the pre-
eminent role that government actions must play in the
CWA enforcement scheme, we hold that they are.
The preclusive effect of a consent decree on a private
enforcement action was addressed by the court in United
States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985).
There, the State of Alabama and the United States sought
injunctive relief to require the Olin Corporation to elimi-
nate DDT from, and restore the environment in, the
vicinity of Redstone Arsenal. As part of the resolution of
the case, Olin, the United States, and Alabama entered
into a consent decree.
App. 19
The court stated that “once a state represents all of its
citizens in a parens patriae suit, a consent decree or final
judgment entered in such a suit is conclusive upon those
citizens and is binding upon their rights.” Id. at 1304. The
court held that the question whether the citzens’ [sic] suit
was barred by res judicata turned on whether the prior
litigation was a parens patriae suit. “In a proper parens
patriae suit, the state or federal government is deemed to
represent all of its citizens. . .. Traditionally, parens patria
lawsuits involved a government suing to enjoin alleged
nuisances caused by water or air pollution.” Id. at 1305
The court held that the plaintiffs’ suit for injunctive relief
was barred by res judicata because the same relief had
been sought in the action brought by Alabama and the
United States in a parens patriae capacity. Id. at 1308; se
also Student Pub. Interest Group, Inc. v. Georgia-Pacifi
Corp., 615 F. Supp. 1419, 1432 (D.N.J. 1985) (“The consent
judgment which resolved the previous lawsuit against
defendant forecloses subsequent litigation as to all claims
adjudicated therein.”)
In this case, the citizens place great emphasis @n the
fact that their action was commenced prior to the EPA
enforcement action; they suggest that because the CWA
expressly provides that citizens cannot commence an
action before giving the EPA sixty days notice, 33 U.S.‘
§ 1365(b)(1)(A), the failure of the EPA to commence an
enforcement action within that time frame means that
“the subsequent filing of an enforcement action by the
Government could not supplant the citizen enforcement
action already pending.” We recognize that there may be
some cases in which it would be appropriate to let a
citizens’ action go forward in the wake of a subsequently
App. 20
filed government enforcement action. In view of the con-
sent decree in the instant case negotiated by the EPA and
Green Forest, however, this is not such a case.
Some lower courts in other circuits have reached a
result contrary to the one we reach today. E.G., Atlantic
States Legal Found, Inc. v. Koch Refining Co., 681 F. Supp.
609, 614 (D. Minn. 1988) (holding that district court had
“no discretion” to dismiss a properly filed citizen suit
when a government enforcement action was later brought
covering the same claims); Sierra Club v. Coca-Cola Corp.,
673 F. Supp. 1555 (M.D. Fla. 1987) (consent decree entered
into by the EPA and the defendant did not require dis-
missal of the Sierra Club action for the same CWA viola-
tions when the Sierra Club, a third party in the case, did
not consent). In view of the preeminent role that must be
afforded the EPA in enforcing CWA act violations — a role
contemplated by the legislative history and recognized by
the Supreme Court in Gwaltney - we hold that it was
proper for the district court to dismiss Work’s CWA
claims against Green Forest after the latter had entered
into a consent decree with the EPA. The EPA is charged
with enforcing the CWA on behalf of all citizens. Since
citizens suing under the CWA are cast in the role of
private attorneys general, as a practical matter there was
little left to be done after the EPA stepped in and negoti-
ated a consent decree. See our discussion under Part II(B),
supra. Fines recoverable pursuant to the CWA are payable
to the United States Treasury and would not have been
recovered directly by the aggrieved citizens had their
action continued. While the citizens might have preferred
more stringent terms than those worked out by the EPA,
such citizens are no more aggrieved than citizens who are
| 4
App. 21
precluded from commencing an action in the first
instance because of pending agency action.
Although the issue was not framed in terms of res
judicata or collateral estoppel, the comments of the
Southern District of New York in Hudson River Fishermen's
Ass'n v. County of Westchester, 686 F. Supp. 1044 (S.D.N_Y.
1988) are instructive. Responding to “HudFish’s” argu-
ment that dismissal of its citizens’ action would leave the
group without a remedy, the court stated:
“We are particularly unimpressed with this latter
argument. The thrust of the CWA is to provide
society with a remedy against polluters in the inter-
est of protecting the environment. Section 101 of
the CWA, 33 U.S.C. § 1251(a). If the Government’s
action achieves that end, the fact that HudFish or
any other private attorney general is barred from
duplicating that effort should hardly seem surpris-
ing or harsh. The Government, of course, as repre-
sentative of society as a whole, usually is in the
best position to vindicate societal rights and inter-
ests. In those instances where, for whatever rea-
sons, the Government fails or declines to take
action, the CWA allows citizens acting as private
attorneys general to fill the void. That does not
mean, however, that HudFish is ipso facto entitled
to its own, ‘personalized’ remedy in this or any
other CWA case.”
Id. at 1052.
It should be borne in mind that the citizens in this
case were permitted to prosecute their CWA claims
against Tyson, as well as their common law claims against
both Tyson and the City. It was only the CWA claims that
the district court found to be barred by res judicata and
collateral estoppel.
We hold that that ruling was proper.
App. 22
(B)
Tyson’s claim that the court erred in refusing to
dismiss claims against it based on res judicata, however,
need not detain us long. In essence, Tyson asserts that the
EPA’s decision not to commence an action against it is
binding upon the citizens. This novel proposition flies in
the face of the clear language of the citizens’ action
provision of the CWA, as well as the legislative history,
which make clear that agency inaction is precisely the
circumstance in which private action is appropriate. Stu-
dent Pub. Interest Research Group, supra, 615 F. Supp. at
1427 (“Defendant’s interpretation of the Act would ren-
der citizen-suits impossible when they are required most:
instances where an agency encourages a polluter to
believe its unlawful behavior will go unpunished.”).
(C)
We next address Tyson’s argument that its motion to
dismiss should have been granted because of the lack of
regulatory definitions of “interference” and “pass--
through.” See our discussion of the statutory framework
of the CWA, under part I(A), supra.
The CWA regulations provide that “[a] User may not
introduce into a POTW any pollutant(s) which cause Pass
Through or Interference.” 40 C.F.R. § 403.5 (1989). Tyson
relies on the holding in NAMF, supra, 719 F.2d at 640-41,
rev'd on other grounds sub nom. Chemical Mfrs. Ass‘n v.
N.R.D.C., Inc., supra, 470 U.S. 116, to support its conten-
tion. Tyson misreads the holding in NAMF. As we have
pointed out, NAMF merely held “that liability could not
- enc
App. 23
be imposed on industrial users without proof of causa
tion.” Arkansas Poultry Fed’n v. EPA, 852 F.2d 324, 328 (8th
Cir. 1988). The NAMF court rejected a definition of “inter
ference” that would have created liability for causing or
“significantly contribut[ing]” to a violation of an NPDES
permit, 719 F.2d at 639, holding that:
“We conclude that given the language and
purpose of the Act, an indirect discharger can
not be liable under the prohibited discharge
standard unless it is a cause of the POTW’s
permit violation of sludge problem. If the definti-
tion of ‘interference’ required that an indirect dis
charger be both ‘the cause of’ and ‘significantly
contribute to’ the POTW’s permit violation, it would
be consistent with that causation requirement. As
written, however, the definition fails to require
such causation, and thus violates the clear
meaning of the Act.”
Id. at 641 (emphasis added)
While the NAMF court rejected the then-existing reg
ulatory definitions of “interference” and “pass-through,’
719 F.2d at 641, the regulatory prohibitions, as Work points
out, remained intact. We agree with the citizens that the
CWA’s prohibitions against “interference” and “pass
through” are not unconstitutionally vague, but ade
quately apprised Tyson that it was not to cause the City
to violate its NPDES permit.
We hold that the district court properly denied
Tyson’s motion to dismiss.
App. 24
(D)
We next address Tyson’s claim that the district court
erred in denying its motion for a directed verdict pur-
suant to Gwaltney, supra, which held that citizens’ actions
are not permitted for wholly past violations of the CWA
484 U.S. at 59. Tyson points out that it constructed an
advanced pretreatment facility at substantial expense,
which went on-line in 1985, subsequent to which Tyson
claims it “never exceeded the agreed local limits designed
for optimum operation of the POTW.”
The citizens assert that violations of the City’s per-
mits continued after 1985. Work asserts further that
Tyson's reliance on the affirmative defense of compliance
with local limits does not get Tyson off the hook. CWA
regulations provide for an affirmative defense for compli-
ance with a local limit if that limit was designed to prevent
pass through and/or interference, 40 C.F.R. § 403.5
(a)(2)(ii)(A) (1989), and if the POTW user “did not know
or have reason to know that its Discharge, alone or in
connection with discharges from other sources, would
cause Pass Through or Interference”. Id. at § 403.5(a)(2)(i).
We agree with Work that Tyson has not established these
conditions.
Gwaltney makes clear that the citizens’ suit provision
“confers jurisdiction over citizen suits when the citizen-
plaintiffs make a good-faith allegation of continuous or
intermittent violation ....” 484 U.S. at 64. Judge Harris,
in this case, explicitly found that “[a] review of the plain-
tiff’s second amended complaint makes it indelibly clear
that the plaintiffs have made good-faith allegations of
ongoing violations by Tyson.” Work, supra, 720 F. Supp. at
[he judge found, moreover, that there was “substar
tial evidence add d ‘al establist : — ee
lai evidence adduced at [rial estadiisning a reasonaDi'
ikelihood of a recurrence of intermittent violation
7¢
efore and since November 1985 when Tyson’s new treat
_ nN slates } » . . » dd i 2 ; ce
ent facility began operating Id. at 138. Our review
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App. 26
City of its Clean Water Act permit were caused
by Tyson Foods, Inc.”
The evidence adduced all related to Tyson’s role as an
indirect discharger. The jury’s verdict was consistent with
the instructions given by the judge with respect to indi-
rect discharger liability. In EEOC v. Atlantic Community
School Dist., 879 F.2d 434, 437 (8th Cir. 1989), we
explained that “[jlury instructions are subject to the
‘harmless error’ rule requiring a determination of
whether the error affected the ‘substantial rights of the
parties.” (citations omitted).
We hold that in this case the judge’s error in giving
superfluous instructions relevant only to direct dis-
chargers and permit holders was harmless, in light of his
correct instruction on indirect discharger liability.
(F)
This brings us to Work’s claim that the district court
erred in assessing $43,000 in penalties against Tyson for
CWA violations. The jury found Tyson guilty of 43 sepa-
rate violations. The court assessed penalties in the
amount of $1,000 per violation. Work, supra, 720 F. Supp.
at 139.
Work claims that the district court erred in declining
the citizens’ request to instruct the jury that a violation of
a thirty-day average effluent limitation constitutes thirty
separate daily violations of the Act. Atlantic States Legal
Found., supra, 897 F.2d at 1139. We agree with the majority
of the courts that have addressed the issue that violation
of a monthly average effluent should be counted as thirty
separate violations. Id. at 1139. We find, however, that the
App. 27
district court’s failure specifically to articulate this rule in
its jury instructions in this case was harmless error
In Atlantic Community School District, supra, we held
that the district court’s failure to give a proposed instruc
tion did not affect the relevant party’s “substantial
rights”:
“Because EEOC’s theory of the case was
apparent to the jury throughout the trial, and
because the instructions given neither failed to
guide the jury on the central issue of age dis-
crimination nor inhibited the jury in making
such a finding, error in failing to give the pro-
posed instruction, if error there were, would
have been harmless. In sum the jury could have,
but simply chose not to, agree with EEOC’s
theory of the case.”
879 F.2d at 437 (citation omitted).
In this case, too, the jury could have agreed with
Work that Tyson was guilty of many more than 43 viola
tions of the CWA. The court simply instructed the jury
that it was required to “determine how many violations
by the City of its Clean Water Act permit were caused by
Tyson Foods, Inc.” Work’s expert testified at trial that
there were 720 violations “assuming that a violation of
the 30-day average permit for administrative order
requirement is tantamount to 30 separate daily violations
“ As Tyson points out, however, there also was
evidence from which the jury could have concluded that
the problems witn the POTW were primarily the fault of
the City rather than Tyson. Furthermore, the jury had
before it reports of discharges calculated on a daily,
weekly, and monthly basis
App. 28
In the district court’s opinion, where, inter alia, it
assessed penalties against Tyson, the court stated that it
“contrue[d] the decisions of the jury to be that there were
violations on 43 separate days.” Work, supra, 720 F. Supp. at
138 (emphasis added). Earlier in that opinion, the court
stated that it had heard and had the benefit of the entire
record in the case. Id. at 137. The opinion indicates,
moreover, that the court considered the law applicable to
the assessment of penalties. For example, in the section
addressing Gwaltney, the court referred to the Fourth
Circuit’s holding that each violation of monthly averages
for discharge of pollutants amounts to a violation for
each day of the month. Id. at 135.
We find no reason to disturb the court’s construction
of the jury award; nor do we find that its failure to use
Work’s proffered jury instruction was anything other
than harmless error, if indeed it was error at all. The jury
was made aware, through counsel’s questions, that it
could find more than 700 violations of the CWA if it so
chose. Although we would be more comfortable with the
jury instructions if they had clearly articulated the rule
with respect to monthly average permit violations, its
failure to do so was at most harmless error.
Work argues further, however, that the court erred in
assessing only a $1,000 fine per violation. We disagree.
We hold that the assessment was within the proper exer-
cise of the court’s discretion.
Work relies almost exclusively on the Eleventh Cir-
cuit’s decision in Atlantic States, supra, for the proposition
that the district court erred in failing to assess higher
penalties. In Atlantic States, the court of appeals held that
App. 29
the district court abused its discretion in levying no pen-
alty whatsoever against the defendant after violations of
the CWA had been established. The court stated that
“{w)hile the amount of penalty to be levied is discretion-
ary with the district court, its determination, based solely
on the good faith efforts of [the defendant] to comply
with the law, that no penalty was appropriate was and
would be an abuse of discretion.” 897 F.2d at 1142. The
court remanded the case to the district court with the
direction that, if it chose not to impose the maximum
penalty under the Act, it “reduce the fine in accordance
with the factors spelled out in section 1319(d), clearly indi-
cating the weight it gives to each of the factors in the
statute and the factual findings that support its conclu-
sions.” Id. at 1142 (emphasis added). In the instant case,
unlike in Atlantic States, the court did impose a penalty
after considering, in substance, the matters contemplated
by 33 U.S.C. § 1319(d).
Section 1319(d) provides that violators shall be sub-
ject to a maximum penalty of $10,000 for violations before
February 4, 1987 and $25,000 for violations thereafter: It
also provides that:
“In determining the amount of a civil penalty
the court shall consider the seriousness of the
violation or violations, the economic benefit (if
any) resulting from the violation, any history of
such violations, any good-faith efforts to comply
with the applicable requirements, the economic
impact of the penalty on the violator, and any
such other matters as justice may require.”
33 U.S.C. § 1319(d).
App. 30
In its opinion addressing penalties, the district court
here explicitly considered “the extent of violations as well
as the number of violations through the years”; “[aJbility
to pay and litigation considerations”; and “the policy by
EPA in arriving at just and reasonable penalties under the
statute.” Work, supra, 720 F. Supp. at 138-39. The court
also stated that:
“Defendant Tyson has strongly contended that a
new facility of the defendant was undertaken
and is now in place, operating to alleviate the
revious violations at a cost in excess of a mil-
ion dollars. The defendants insist that the flow
of wastewater from its plant through the facility
of Green Forest would prove [sic] and has
already without question alleviated the previous
violations.”
Id. at 138.
The district court, in its opinion, relied on the old
version of § 1319(d), which was in effect at the time the
citizens’ action was commenced. 720 F. Supp. at 135. At
the time the court assessed penalties, that section had
been amended to provide for higher penalties and to
provide specific factors, set forth above, for district courts
to consider when assessing penalties. While not referring
to the new § 1319(d), however, in essence the court con-
sidered precisely those factors Congress found appropri-
ate - i.e., defendant’s conduct, good faith, and financial
situation.
We hold that the court’s failure precisely to invoke
the talismanic language of the new § 1319(d) does not rise
to the level of reversible error. We affirm the court's
assessment of CWA penalties.
App. 31
We have considered that parties’ other claimed errors
with respect to the CWA, and we find them to be without
merit.
V.
We turn next to Work’s claimed errors with respect to
various evidentiary rulings made by the district court
relevant to both the CWA and common law claims. Work
claims that the court erred in applying a “statute of
limitations” to the evidence that it permitted to be intro
duced in Work’s case against Tyson. The statute of limita
tions for CWA violations is five years. The court excluded
evidence pre-dating that period. Work also claims error in
that the court excluded evidence of a settlement in prior
litigation reached between Franz ! is (Tyson’s subsid
iary) and some of the tizen#? in the instant case
Work points out that the evidence of prior violations
was relevant to such issues as Iyson’s knowledge and
culpability, even if Tyson could not be held liable for
violations pre-dating the statute of limitations period
Furthermore, he points out that, pursuant to Fed R. Evid
408, a settlement can be introduced in evidence for pur
poses other than to show liability
Work is right that there is no rule that automatically
excludes evidence pre-dating a statute of limitation
period. In this case, it may have been error for the court
automatically to exclude considerable evidence that was
relevant to Tyson’s culpability. Most of the evidence that
Work complains should have been admitted, however,
was relevant primarily for determining punitive dam
ages. As stated below, we are remanding the case for the
App. 32
purpose of deciding the issue of punitive damages. To the
extent the evidence was not admitted where it might have
had some tangential relevance to other claims, however,
we hold that the error was harmless, particularly since
the evidence would have been largely cumulative with
respect to many of Work’s claims for relief. As for the
admissibility of such evidence, we have made it clear that
“le]ven with a clear showing of abuse, the error must
have affected the substantial rights of the parties to war-
rant reversal of the district court.” Hogan v. American Tel.
& Tel. Co., 812 F.2d 409, 410 (8th Cir. 1987). Any such error
in the instant case did not rise to that level.
With respect to the exclusion of the settlement agree-
ment, suffice it to refer to “our rule that the trial court’s
ruling on the admissibility of evidence will not be dis-
turbed absent a clear and prejudicial abuse of discretion.”
Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981), aff'd sub
nom. Smith v. Wade, 461 U.S. 30 (1983). The exclusion of
the settlement agreement was well within the court’s
discretion.
VL.
This brings us to Work’s claimed errors with respect
to the trial of the common law claims.
(A)
Turning first to the directed verdict against an award
of punitive damages, a review of the record makes clear
that the court was under a misapprehension of the law
App. 33
with respect to the relevant Arkansas law. The court
stated that:
“Punitive damages is a harsh rule of law
You've got the intent of intentional injury,
and I don’t think there’s any testimony in any of
this record at all that would serious [sic] con-
tend that Green Forest or Tyson in their own
mind and heart were going to do this inten-
tionally just to punish. If you can show me any
testimony otherwise, | probably could be per-
suaded.”
The judge’s view that a directed verdict was appropriate
because Tyson did not “intentionally” pollute “just to
punish” was error as a matter of Arkansas law
We recently summarized Arkansas law on punitive
damages and explained that the issue had been properly
submitted to the jury in a case involving exposure to
chemicals:
“For punitive damages to be awarded under
Arkansas law, the plaintiffs must show malice,
either express or inferred. Inferred malice
requires that the defendant knew or should
have known of the potential harm, but pro
ceeded anyway with conscious indifference to
the possibility of injury. Witnesses testified at
trial that Dow knew of the dangers of DBCP as
early as 1961, and yet did nothing. Open cans of
DBCP were dumped in open waste pits, and the
smell of the chemical was repeatedly detected in
the plant. Dow took no precautions to protect its
employees. This evidence was sufficient to jus
tify submitting the punitive damages issue to
the jury.”
App. 34
Loudermill v. Dow Chemical Co., 863 F.2d 566, 571 (8th Cir.
1988). Under Arkansas law, knowledge and indifference
are enough for punitive damages. The Arkansas Supreme
Court expressly has held that a deliberate intent to injure
is not required. National By-Products v. Searcy House Mov-
ing Co., 292 Ark. 491, 494, 731 S.W.2d 194, 195-6 (1987).
In this case, the fact that Tyson may not have
intended to “punish” the citizens is not dispositive of the
punitive damages issue. There was evidence from which
the jury could have inferred that Tyson knew the risk
involved to drinking water because of its chicken opera-
tions, and yet Tyson acted for years with indifference to
that risk.
We hold that the court erred in directing a verdict
against an award of punitive damages and we remand
the case for determination of that issue. In re-trying that
issue, the court should consider carefully the admis-
sibility of evidence predating the applicable statute of
limitations period and should exclude evidence only if its
prejudicial value outweighs its probative value. Fed. R.
Evid. 403.
We next address the citizens’ contention that the
court erred in directing a verdict against Patricia Hudson
and against the medical claims of ten citizens. We hold
that the court erred in this respect.
Hudson’s claim was for alleged damage to real prop-
erty. Counsel for Tyson asserted that “the credible testi-
mony in the record is that she received fair market value
(for her property] without regard to any alleged pollu-
tion.” Hudson, however, had testified at trial that water
App. 35
pollution had devalued her land by $69,000 — the differ-
ence between what she and her husband paid for the
property and what they ultimately sold it for. In arguing
against Tyson’s motion tor a directed verdict, counsel for
the citizens pointed out that there was evidence on both
sides, and that the question of property damage should
be left for the jury. The court, however, ruled that “on the
question of credibility, | will grant the motion.”
The court clearly usurped the jury’s role in ruling on
Tyson’s motion. We have made it clear that, in ruling on a
motion for a directed verdict, the court should consider
only evidence favoring the non-moving party. Dace v.
ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983). Granting
such motions is appropriate only where the evidence is
such that, without weighing the credibility of the witnesses,
there can be but one reasonable conclusion as to the
verdict. Mulholland v. Schneider Service Co., 661 F.2d 708,
711 (8th Cir. 1981). In the instant case, the court explicitly
considered credibility in granting Tyson’s motion.
Indeed, credibility was the very basis for his ruling
In view of this clear error, which prejudiced Hudson,
we are compelled to reverse and remand to the district
court for reconsideration of Hudson’s claim.
Similarly, we hold that it was error for the court to
have directed a verdict to deny the medical claims of ten
of the citizens. The citizens testified as to medical com-
plaints and also adduced the evidence of a medical doc-
tor. The defendants presented no rebuttal evidence. The
court, however, ruled: “The Court thinks there’s just not
enough testimony in this record to justify a jury taking
the time to determine whether or not they’re entitled to
App. 36
damage because they had the stomach ache and diarrhea.
Who doesn’t have it occasionally?”
We hold that the court usurped the jury’s function.
The medical claims should have been submitted to the
jury. We remand with instructions that the court do so.
(C)
We turn next to Work’s claims of error with respect to
the court’s instructions on inverse condemnation and
property damage. The citizens claim that the court erred
in instructing the jury that the plaintiffs had the burden
of proving “that the City of Green Forest knew by its
discharge of wastewater into Dry Creek it was taking the
property. ...” According to Work, “[iJt is sufficient that
the City took some action which had the effect of taking
the property. The City’s intent or knowledge is not deter-
minative.” We agree.
The citizens rely on the Arkansas Supreme Court’s
recent decision in Robinson v. City of Ashdown, 301 Ark.
226, 783 S.W.2d 53 (1990), for the proposition that intent
or knowledge is irrelevant to the issue of taking. The City
relies on the same case for the proposition that knowl-
edge or intent is essential.
Robinson involved a claim for inverse taking where
the plaintiffs’ home had been flooded intermittently with
effluent from the city’s sewer system over a nine-year
period. There was no question that the city was aware of
the problem. The Arkansas Supreme Court was presented
with the question whether “instances of negligence, with
respect to which the city has immunity from suit, may, if
ss eeeeeeeeeeerrrrrereerml ere
App. 37
sustained a long time, amount to inverse condemnation.”
Id. at 227-28, 783 S.W.2d at 54. The court held that the
sustained negligence did constitute an inverse taking. Id.
at 228, 783 S.W.2d at 54.
“-he evidence in this case indicates that the City
allowed excessive levels of effluent to enter Dry Creek for
decades. The Robinson court explicitly stated that negli-
gence, sustained over a long period of time, can be the
basis of an inverse condemnation claim. The facts of
Robinson do not indicate that the City in that case ever
intended to take the property. Green Forest’s reliance on
the statement in Robinson that a municipality is liable
when “its actions are shown to be intentional,” id. at 232,
783 S.W.2d at 56, is misplaced. That statement does not
mean that the City must have intended to take the prop-
erty. Such an interpretation would contradict the holding
of the case. That passage simply requires that the City
intended its action, not the results of its action. The
Robinson case controls our decision and requires that the
citizens be allowed a new trial on their damage claims for
inverse condemnation.
On remand, the district court is instructed to correct
other errors, pointed out by the citizens and discussed
below, with respect to its instructions on inverse condem-
nation and property damage (which errors, standing
alone, might not have compelled reversal were it not for
the fatal error with respect to the issue of intent).
The court erred in stating that the citizens had to
show “that the taking of property occurred on or after
March 3, 1984.” Although it was proper for the court to
apply a three-year statute of limitations to the taking
App. 38
claims, the Arkansas Supreme Court has made clear that
the limitations period begins to run only ” ‘at the time
when it becomes obvious that a permanent injury has
been suffered.’ ” City of Springdale v. Weathers, 241 Ark.
772, 774, 410 S.W.2d 754, 756 (1967) (citation omitted).
The court’s instruction here did not make this clear.
We also find that it was error for the court to have
instructed the jury that it was to consider “enhancement
of the property, if any, to the value of such plaintiff’s land
which resulted from the extension of the city water to
such property.” The citizens are correct that it was proper
for the jury to have considered only any enhancement
that was the direct result of a taking, e.g., McMahan v. Carroll
County, 238 Ark. 812, 384 S.W.2d 488 (1964). The exten-
sion of city water here was not such an enhancement.
This error should be corrected with regard to plaintiff’s
claims against Tyson as well as the City.
VII.
To summarize:
We hold that we are without jurisdiction to consider
the denial of Work’s first motion to intervene, but that we
do have jurisdiction to consider the denial of the second
intervention motion. Since the court erred in denying that
second motion, we remand for consideration of attorneys’
fees. We hold that the court properly exercised its discre-
tion in denying Work’s motion to consolidate. We hold
further that the court properly dismissed the CWA claims
against the City based on res judicata.
|
App. 39
With respect to both parties’ claimed errors relating
to the trial of the CWA claims against Tyson, we affirm
the judgment of the district court in its entirety, finding
no prejudicial errors.
With respect to the trial of the common law claims
against Tyson, we substantially affirm but reverse and
remand in part. We hold that the court erred in directing
verdicts against Patricia Hudson, against the medical
claims of ten citizens, and against the citizens on their
punitive damages claims. On remand, the court is
instructed to submit these claims to the jury. Specifically
with respect to the punitive damages claim, the court is
further instructed to make rulings on the admissibility of
evidence consistent with Fed. R. Evid. 403.
With respect to the trial of the common law claims of
inverse condemnation against the City, we reverse and
remand based on the court’s erroneous instruction on the
issue of intent. On remand, the court is further instructed
to correct other errors with respect to its instructions.
We have considered the parties’ other claims or error,
and find them to be without merit.
Affirmed in part, reversed in part, and remanded.
LAY, Chief Judge, concurring and dissenting.
I concur in part and dissent in part. I dissent as to the
district court’s determination of the number of Clean
Water Act violations committed by Tyson.
I dissent with regard to the court’s affirmance of the
Clean Water Act penalty calculation against Tyson. The
district court refused to give plaintiff’s proposed instruc-
tion that would have explained to the jury that each
App. 40
monthly average violation must be construed as thirty
individual daily violations. The majority concedes that
the court erred in refusing this instruction, which is
firmly rooted in the text of the Act. The jury found 43
violations, an erroneous figure that does not correspond
to any view of the evidence. The district court admitted
the verdict was ambiguous when the judge stated he had
to “construe” the verdict to mean there were violations
on forty-three separate days.
No doubt the faulty instruction confused the jury. There
is nothing in the record that makes me confident that they
determine the correct number of violations. Perhaps too
eager to avoid relitigation of this case, the majority simply
declares the error harmless and attempts no analysis or
explanation for its decision. The majority goes on to affirm
the judge’s penalty calculations, relying on the fact that the
calculations are discretionary. The judge’s discretion to set
the amount of the penalty, however, does not carry over into
the jury’s province to determine the number of violations.
The judge exercised his discretion to set the amount of
penalty relying on the jury’s determination of the number of
violations. Had the jury found a different number of viola-
tions, the judge, if he was properly enforcing the Act, would
have set a different penalty. Given the serous [sic] doubt
about whether the jury properly determined the number of |
violations, we should not let the penalty calculation stand.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
App. 41
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 89-1661WA .
United States Environment
; Appeal from the
Protection Agency, 2.
Jnited States
Appellee, *». District Court
for the Western
vs
City of Green Forest
Arkansas,
Appellee
Lewis Stephen Work, et
Appellants/Intervenors
* e*enenHeHeHeHeMEeHe He He HeHelCUCrselCUCUCrhU hh hUCU hUc hrhUch Fe Fe Ff
No. 89-2549WA; 89-2636WA
90-1011WA; 90-1041WA
WIS Stephen Work, et al.,
Appellants /
Cross-Appellees,
_
[yson ] ods, Inc : and City .
yT (,reen Forest, Arkansas, -
; ] 7.
al
»*
Appellees / *
Cross-Appellants :
App. 42
JUDGMENT
(Filed Feb. 25, 1991)
This appeal from the United States District Court was
submitted on the record of the district court, briefs of the
parties and was argued by counsel.
After consideration, it is hereby ordered and
adjudged that the judgment of the district court in this
cause is affirmed in part and reversed in part and the
cause is remanded to the district court for proceedings
consistent with the opinion of this Court.
December 18, 1990
A true copy. /s/ Robert D. St. Vrain
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIR-
CUIT
MANDATE ISSUED: 2/22/91
a
App. 43
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 89-1661/2549 /2636/90-1011/1041WA
Lewis Stephen Work, et al., Appeal from the
Appellants * United States
re is * District Court
VS for the
* Western District
The City Green Forest, etc
y : of Arkansas
et al.,
Appellees ;
(Filed Feb. 27, 1991)
The Court, having considered appellants’ motion for
attorneys’ fees, costs and expenses and appellees’ objec
tion to the motion, hereby orders that each party bear his
or its own costs
February 25, 1991
A true copy. /s/ Robert D. St. Vrain
ATTEST:
) CLERK, U.S., COURT OF APPEALS, EIGHTH CIR
CUI
App. 44
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
STEVE WORK, et al. PLAINTIFFS
v. NO. 87-2034
TYSON FOODS, INC., et al. DEFENDANTS
MEMORANDUM OPINION
(Filed Aug. 24, 1989)
This action was commenced by the plaintiffs filing
the originagcomplaint March 3, 1987. The plaintiffs
sought permission and filed their second amended com-
plaint September 16, 1988, as a civil action pursuant to
the citizens suit provision, Section 505 of the Federal
Clean Water Act (the Act), as amended, 33 U.S.C.
§ 1365(a), § 1365(a)(2), § 1365(e), § 1370, § 1345, § 1314,
§ 1318(a), § 1319, § 1317, § 1311, and § 1251, together with
various administrative orders issued by the Environmen-
tal Protection Agency (EPA), to the City of Green Forest
(the City) and the National Pollutant Discharge Elimina-
tion System (NPDES) permit.
The Plaintiffs also rely on other provisions of law for
relief, including the Safe Drinking Water Act, 42 U.S.C.
§ 300, et seq., the Resources Conservation and Recovery
Act (RCRA), 42 U.S.C. § 6901, et seq., provisions of Ark.
Stats. Ann. § 82-209, 220, the Arkansas Water and Air
Pollution Control Act, the Arkansas Solid Waste Water
Act, Ark. Stat. Ann. § 82-1901 and Ark. Stat. Ann
§ 82-2701, et seq., involving state permits issued pursuant
to state and federal laws.
App 45
Furthermore, the plaintiffs seek tort action under
common law of the State of Arkansas governing riparian
rights, nuisance, constructive and inverse condemnation,
declaratory judgment, injunctive relief, the imposition of
civil penalties, compensatory and punitive damages, and
attorneys fees and costs.
It is established that this court has jurisdiction over
the issues involved under Section 505(a) of the Clear
Water Act, 33 U.S.C. §§ 1365(a), 1365(a)(2) and 1365(e),
and § 1370; 42 U.S.C. § 1983 and § 1985; 28 U.S.C. § 2201
and 28 U.S.C. § 1331. Venue in this case is appropriate in
the Western District of Arkansas pursuant to 33 U.S.C
§ 1365(c).
The plaintiffs in this action gave required notice of
alleged violations on November 18, 1986, and that they
intended to file suit. 33 U.S.C. § 1365(b)(1)(A), 42 U.S.C
§ 6901, et seq., and 42 U.S.C. § 300, et seq
Originally there were approximately 106 plaintiffs
joined in the case, all of whom resided in Carroll County,
Arkansas.
The defendant, City of Green Forest (the City), is a
municipality located in Carroll County, Arkansas, and is,
therefore, a political subdivision of the State of Arkansus
the City has owned and continues to own and manage
Publically Owned Treatment Works (POTW
receives waste water effluent from the residents
City and industrial waste water fr
defendant, Tyson Foods, Inc., (Tyson) located
Green Forest, Arkansas. To meet the requiremer
Clean Water Act, 33 U.S.C. § 1365, the ¢
NPDES permit to discharge I]
App. 46
into Dry Creek, thence to Long Creek in the White River
basin. These discharges were and are discharges of pollu-
tants into navigable waters as defined by § 1362 of the
Act.
Originally the Arkansas Department of Pollution
Control and Ecology and the United States Environmen-
tal Protection Agency were made defendants in the law-
suit on the basis that those agencies had failed to
adequately enforce the Act as required. They were dis-
missed by the court on a showing of their respective
efforts and actions as required by law.
The defendants timely answered the complaints of
the plaintiffs and have vigorously opposed the conten-
tions of plaintiffs seeking the relief as above alleged in
the plaintiffs’ complaint. The defendants have denied the
allegations of the plaintiffs and have made special efforts
to have the alleged charges against the defendants dis-
missed.
Substantial discovery has been accomplished by the
parties in preparation for trial on the issues in the litiga-
tion. The court conducted pre-trial hearings and finally
scheduled the case for trial commencing Tuesday, April 4,
1989. A jury was impanelled to consider and determine
appropriate questions such as the common law tort
claims of individual plaintiffs; the question of alleged
violations of the Clean Water Act, including civil penal-
ties; and request for injunctive relief. The trial of the case
required six weeks and the testimony of numerous wit-
nesses, including many of the plaintiffs, defendants, fed-
eral and state officers involved in the management of the
pollution laws affecting the environment under which
App. 47
people must live. Each of the parties presented expert
witresses. At the conclusion of a long and tedious trial,
the court instructed the jury on the issues of law applica-
ble for the jury’s determination in the case. After the
court instructed the jury on the issues involved, and
counsel having presented their respective arguments to
the jury, appropriate interrogatories were presented for
the jury’s consideration which the court determined the
jury should decide. The jury deliberated on the issues
presented to them for three days and returned their unan-
imous verdicts late afternoon of the third day.
First, the jury decided for the City on the question of
discharging waste water into Dry Creek and returned a
verdict in favor of the City as against the plaintiffs.
Pursuant thereto, Judgment was entered on June 19, 1989,
in favor of the defendant, City of Green Forest, Arkansas,
and against the plaintiffs, Steve Work, et al.
On Interrogatory No. 2 the jury’s verdict decided
Tyson violated the Clean Water Act.
On Interrogatory No. 3 the jury decided that there
were 43 separate occasions since November 16, 1981, that
Tyson violated the Clean Water Act.
On Interrogatory No. 4 and final verdict by the jury
awarded damages to 40 of the plaintiffs as named therein.
The jury determined the damages to each for the plain
tiffs as itemized damage to real property to each of the 40
plaintiffs and other compensatory damages. These ver-
dicts were returned and filed with the court. By direction,
the clerk entered judgment for each of the plaintiffs in
accordance with the unanimous verdicts of the jury on
June 19, 1989.
App. 48
As the jury in its deliberations determined by their
verdicts that Tyson was responsible for 43 violations, it
becomes the duty and responsibility of this court to
assess the penalty in accordance with the Clean Water
Act, 33 U.S.C. § 1319(d), which provides:
“Any person who violates section 1311,
1312, 1316, 1317, 1318, 1328, or 1345 of this title,
or any permit condition or limitation imple-
menting any of such sections in a permit issued
under section 1342 of this title by the Adminis-
trator, or by a State, or in a permit issued under
section 1344 of this title by a State, and any
person who violates any order issued by the
Administrator under subsection (a) of this sec-
tion, shall be subject to a civil penalty not to
exceed $10,000 per day of such violation.”
Under the provisions of the Act if a person is deter-
mined to be “in violation,” it becomes the responsibility
of the district court to decide the extent of the penalties
as set out hereinabove. Thus, in the instant case the jury
has decided unanimously that Tyson violated the terms of
the Act and it becomes the duty of this court to assess
civil penalties pursuant to Title 33 U.S.C. § 1319(d). Tull v.
United States, 481 U.S. 412, 427.
Although there have been differences of opinion as to
the interpretation of the opinion of the United States
Supreme Court in the case of Chesapeake Bay Founddation
[sic] v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542, this
court is of the opinion that the opinions by the district
court, Fourth Circuit Court of Appeals, and the Supreme
Court, supra, together with the remand to the court of
appeals, thence the return by remand to the district
judge, provides a complete guide for this court in the
App. 49
instant case. The district court, The Honorable Robert R.
Merhige, Jr., in a thorough opinion set forth the applica-
ble law in cases involving the Clean Water Act, 33 U.S.C.
§ 1365. The issues there are somewhat similar to the
issues in the instant case. The Court explained that: “This
suit is a citizen enforcement action — a ‘citizen suit’ -
authorized by Section 505 of the Clean Water Act, 33
U.S.C. § 1365. .. . The violations reported in Gwaltney’s
DMRs form the basis of this action. Where a permittee is
in violation of an NPDES discharge limitation, it is also
‘in violation of .. . an effluent standard or limitation
under [the Act],’ 33 U.S.C. § 1365(a)(1), which makes the
permittee subject to citizen suits. Id. For citizen suits
under the Clean Water Act, Congress has authorized the
district courts to assess appropriate civil penalties. 33
U.S.C. § 1365(a). Such penalties may be as high as
‘$10,000 per day of such violation.’ 33 U.S.C. § 1365(d).”
Further, the court stated: “It is clear that, at least
under the Clean Water Act, a citizen enforcer can only
establish standing if it meets the requirements of ‘injury
in fact’ set forth in Sierra Club v. Morton, 405 U.S. 727,
734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 635 (1972).” Con-
tinuing, the court held: “In addition to the ambiguity in
the words ‘to be in violation’ standing alone, other por-
tions of Section 1365 suggest that Gwaltney’s proffered
construction is not the only — or the most — plausible one.
Section 1365 states that: “The district courts shall have
jurisdiction . . . to apply any appropriate civil penalties
under [33 U.S.C. § 1319(d)].”
“33 U.S.C. § 1365(a). Section 1319(d) authorizes civil
penalties ‘not to exceed $10,000 per day of . . . violation.’
- 33 U.S.C. § 1319(d).
App. 50
Also, the district court in Gwaltney concluded that
civil penalties should be assessed.
In discussing the legislative history of the Clean
Water Act, the court concluded that the Act authorizes
citizen suits based on unlawful conduct that “occurred in
the past regardless of whether the conduct continues
through the time the complaint is filed.” This decision
was based on the statement made by Senator Muskie, the
manager in the Senate of the bill that added the citizen
suit provision to the Act. Having reached such conclu-
sion, the district court proceeded to impose penalties
arising out of the problems with its biological treatment
system and violations adduced from the chlorination
waste. Penalties in the sum of $1,285,322 were assessed
for such continuous violations.
In affirming the decision of the district court on the
appeal, the Fourth Circuit Court of Appeals held that: (1)
private “citizen suits” under the Clean Water Act could
be based on past violations of the act; (2) each violation of
monthly averages for discharge of pollutants amounted
to a violation for each day of the month, for purposes of
setting the maximum civil penalty; and (3) the district
court did not abuse its discretion in setting the penalty.
To resolve conflicts in the Circuit Courts of Appeals,
see 108 S.Ct. 380-81, the Supreme Court granted certiorari.
The case was regularly scheduled and argued Octo-
ber 5, 1987. The opinion of the Supreme Court was
decided December 1, 1987, and delivered by Mr. Justice
Marshall.
App. 51
The Court held that § 505(a) of the Clean Water Act
authorizes private citizens to commence a civil action for
injunctive relief and/or the imposition of civil penalties
in federal district court against any person “alleged to be
in violation” of the conditions of a National Pollutant
Discharge Elimination System (NPDES) permit. The court
further determined that between 1981 and 1984, peti-
tioner Gwaltney repeatedly violated the conditions of its
NPDES permit by exceeding authorized effluent limita-
tions. However, said the court, due to the installation of
new equipment, petitioner’s last reported violation
occurred in May 1985. Nevertheless, in June 1984, having
given notice of their intent to sue, as required by § 505(b)
of the Act, respondents filed as § 505(a) suit alleging that
the petitioner “has violated . . . [and] will continue to
violate the NPDES permit.”
The Supreme Court held, inter alia, that the Act’s
legislative history indicates that § 505 suits were intended
to abate pollution and to enjoin continuous or intermit-
tent violations, not to remedy ‘wholly past violations.’
“Our conclusion that § 505 does not permit citizen suits
for wholly past violations does not necessarily dispose of
this lawsuit, as both lower courts recognized.” Continu-
ing, “The District Court found persuasive the fact that
‘[respondents’] allegation in the complaint, that Gwaltney
was continuing to violate its NPDES permit when plain-
tiffs filed suit[,] appears to have beeremade fully in good
faith.’ ... Because we agree that § 505 confers jurisdiction
over citizen suits when the citizen-plaintiffs make a good-
faith allegation of continuous or intermittent violation,
we remand the case to the Court of Appeals for further
consideration.”
App. 52
Continuing, the Supreme Court stated that “Peti-
tioner argues that citizen-plaintiffs must prove their alle-
gations of ongoing noncompliance before jurisdiction
attaches under § 505. . . . We cannot agree. The statute
does not require that a defendant ‘be in violation’ of the
Act at the commencement of suit; rather, the statute
requires that a defendant be alleged to be in viola-
tion. . . . We agree with the Solicitor General that Con-
gress’s use of the phrase ‘alleged to be in violation’
reflects a conscious sensitivity to the practical difficulties
of detecting and proving chronic episodic violations of
environmental standards.’ ,
Finally, “Because the court below erroneously “a
cluded that respondents could maintain an action based
on ‘wholly past violations’ of the Act, it declined to
decide whether respondents’ complaint contained a
good-faith allegation of ongoing violation by petitioner.
We therefore remand the case for consideration of this
question.”
On remand, the Fourth Circuit Court of Appeals held
in a per curium opinion that “We remand to the district
court for further findings as to whether, on the merits,
plaintiffs proved at trial an ongoing violation. Citizen-
plaintiffs may accomplish this either (1) by proving viola-
tions that continue on or after the date the complaint is
filed, or (2) by adducing evidence from which a reason-
able trier of fact could find a continuing likelihood of a
recurrence in intermittent or sporadic violations. Inter-
mittent or sporadic violations do not cease to be ongoing
until the date when there is no real likelihood of repeti-
tion. While the district court did make subsidiary find-
ings pertinent to this issue, see, e.g.,611 F.Supp. at 1549 n.
App. 53
8, 1566 (Appendix A), it did not make a direct finding as
to whether citizen-plaintiffs proved the existence of inter-
mittent or sporadic violations constituting an ongoing
violation.”
The court went on to say “Consistent with the guid-
ance of the Supreme Court majority and concurring opin-
ions, the district court may wish to consider whether
remedial actions were taken to cure violations, the ex ante
probability that such remedial measures would be effec-
tive, and any other evidence presented during the pro-
ceedings that bears on whether the risk of defendant’s
continued violation had been completely eradicated
when citizen-plaintiffs filed suit.”
On receiving the remand in carrying out the direction
of both the Supreme Court and the Fourth Circuit Court
of Appeals, District Judge Merhige acknowledged that
the Fourth Circuit Court provided considerable guidance
for determining whether an ongoing violation has been
shown. The court may find that an ongoing violation has
been proved if at trial the plaintiffs either “(1) .
provied] violations that continue[d] on or after the date
the complaint was filed, or (2) . . . adduc[ed] evidence
from which a reasonable trier of fact could find a continu-
ing likelihood of a recurrence in intermittent or sporadic
violations.” Chesapeake Bay Foundation v. Gwaltney of
Smithfield, Ltd., 844 F.2d 170, 171 (4th Cir. 1988) (“Remand
Opinion”).
¢
Therefore, Judge Merhige concluded that “the man-
date in this matter is clear and unequivocal: this court is
to determine whether ‘plaintiffs provided at trial an
ongoing violation’ as defined by the Fourth Circuit.”
App. 54
Further, he stated that “having found that the evi-
dence adduced at trial shows a reasonable continuing
likelihood of a recurrence of intermittent violations at the
time the action was filed, the court finds that plaintiffs
proved an ongoing violation. The original judgment of
the Court imposing upon Gwaltney a total civil penalty of
$1,285,322 shall be reinstated.” Chesapeake Bay Found. v.
Gwaltney of Smithfield, 688 F.Supp. 1078-80.
Therefore, the ultimate and final decision in the
Gwaltney case resulted in a judgment of civil penalty as
stated hereinabove.
4
After having heard, and having benefit of the entire
record in the instant case, it is the opinion of this court
that it parallels virtually to the point the result in the
Gwaltney case, supra.
As an example, in the instant case the court submit-
ted Interrogatory No. 2 t6 the jury as follows: Do you find
from a preponderance of the evidence that the defendant.
Tyson Foods, Inc., violated the Clean Water Act? The
unanimous decision of the jury on the question was
“Yes.” Along with this interrogatory the court instructed
the jury, No. 23, as follows: “If you find by a prepon-
derance of the evidence that Tyson Foods, Inc., has vio-
lated the Clean Water Act by causing the City of Green
Forest, Arkansas, to violate a provision of its Clean Water
Act permit you must determine the number of occasions
on which Tyson has violated the-Clean Water Act. In
order to make this determination, you must determine
how many violations by the City of its Clean Water Act
permit were caused by Tyson”
App. 55
In that the jury determined by its verdict, Interroga-
tory No. 2, that the defendant, Tyson Foods, Inc., violated
the Clean Water Act, together with its response to
Instruction No. 23, the jury determined that there were 43
violations within the period of time commencing with
November 16, 1981. The jury having reached its decisions
by the return of their verdicts that Defendant Tyson was
responsible for Green Forest having violated the City’s
permit, it now becomes the responsibility of this court to
determine the penalties that should be assessed for “such
violations.” .
It is an established fact that Tyson Foods was
involved in a number of pollution controversies com-
mencing at least during the seventies. It is an established
fact of record that Tyson Foods was a part of and commit-
ted ongoing violations of the Clean Water Act since well
before March 1984. Tyson Foods has also been involved iii
litigation involving disposal of waste water under the
laws of Arkansas. It is also an established fact that Tyson
has been charged with ongoing violations of the Clean
Water Act in a fairly recent decision. Atlantic States Legal
Foundation, Inc. v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D.
Ala. 1988), two cases, where defendant’s two commercial
plants were involved in proceedings arising under the
Federal Water Pollution Control Act as reported March 4,
1988.
A review of the plaintiff's second amended com-
plaint makes it indelibly clear that the plaintiffs have
made good-faith allegations of ongoing violations by
Tyson. The citizen-plaintiffs in this case have alleged
continuous or intermittent violations in an effort to estab
lish a ‘reasonable likelihood’ that Tyson’s utilization of
App. 56
the facilities of Green Forest will repeat such violations.
As already stated, Green Forest was and is operating
under a permit from both EPA and the state agency.
It has been established by substantial testimony in
the trial of this case of intermittent violations occurring
before November 1985. The plaintiffs have alleged and
have attempted to prove such violations to be ongoing
until a date when there would be no likelihood of repeti-
tion. It is the opinion of the court that testimony at the
trial was received by the court and jury that established
at least some reasonable likelihood of a recurrence of
intermittent violations by the defendants.
Defendant Tyson has strongly contended that a new
facility of the defendant was undertaken and is now in
place, operating to alleviate the previous violations at a
cost in excess of a million dollars. The defendants insist
that the flow of wastewater from its plant through the
facility of Green Forest would prove and has already
without question alleviated the previous violations.
Many witnesses on behalf of the plaintiffs have insis-
ted that there have been intermittent and sporadic viola-
tions since the facility of Tyson became operational
November 1985. In fact, it developed during the closing
days of the trial that extensive oil and sludge occurred in
Dry Creek which caused accusations by both parties. It is
a fact that there was waste that occurred in Dry Creek
which the plaintiffs said came from the Green Forest
facility and the defendants claimed was an act brought on
by the plaintiffs.
App. 57
This court, having concluded that there was substan-
tial evidence adduced at the trial establishing a reason-
able likelihood of a recurrence of intermittent violations
before and since November 1985 when Tyson’s new treat-
ment facility began operating, and that there was alleged
good-faith allegations of the plaintiffs of ongoing viola-
tions and pursuant to the verdicts returned by the jury,
now has the responsibility of to make a determination of
reasonable penalties as required by 33 U.S.C. § 1365. This
court has no hesitancy and concludes that the record
clearly establishes good-faith allegations by the plaintiff
as included in the complaint and the reasonable likeli-
hood of repetition under the arrangements between
Tyson and the City of intermittent and sporadic viola-
tions at some period in the alleviate the previous viola-
tions at a cost in excess of a million dollars. The
defendants insist that the flow of wastewater from its
plant through the facility of Green Forest would prove
and has already without question alleviated the previous
violations.
Many witnesses on behalf of the plaintiffs have insis-
ted that there have been intermittent and sporadic viola-
tions since the facility of Tyson became operational
November 1985. In fact, it developed during the closing
days of the trial that extensive oil and sludge occurred in
Dry Creek which caused accusations by both parties. It is
a fact that there was waste that occurred in Dry Creek
which the plaintiffs said came from the Green Forest
facility and the defendants claimed was an act brought on
by the plaintiffs.
This court, having concluded that there was substan-
tial evidence adduced at the trial establishing a reason-
abie likelihood of a recurrence of intermittent violations
App. 58
before and since November 1985 when Tyson’s new treat-
ment facility began operating, and that there was alleged
good-faith allegations of the plaintiffs of ongoing viola-
tions and pursuant to the verdicts returned by the jury,
now has the responsibility of to make a determination of
reasonable penalties as required by 33 U.S.C. § 1365. This
court has no hesitancy and concludes that the record
clearly establishes good-faith allegations by the plaintiff
as included in the complaint and the reasonable likeli-
hood of repetition under the arrangements between
Tyson and the City of intermittent and sporadic viola-
tions at some period in the future.
In consideration of civil penalties for the violations of
the Clean Water Act as found by the jury, the court would
first consider the testimony by both parties. In applying
the facts as developed during the trial, the court should
keep in mind the extent of violations as well as the
number of violations through the years. As already noted,
the jury concluded by its verdicts that there were 43
violations during the period of time applicable to this
litigation. The court construes the decisions of the jury to
be that there were violations on 43 separate days.
Obviously the court in consideration of assessing
penalties in this case would give great weight to verdicts
returned in the case by the jury on the questions submit-
ted to the jury for their determination.
The attention of the court has been called to the
policy by EPA in arriving at just and reasonable penalties
under the statute. There are two documents containing
the policy of EPA as noted: Policy on Civil Penalties and
A Framework for Statute-Specific Approaches to Penalty
App. 59
Assessments. The First document focuses on the general
philosophies behind the penalty policy. The second docu-
ment provides guidance to each program on how to
develop medium-specific penalty policies. Additionally,
there have been some recent cases in Arkansas wherein
Consent Judgments were entered in settlements involv-
ing, inter alia, civil penalties. United States v. City of Ber-
ryville, Case No. 87-3010, Consent Decree as to Berryville
entered October 1, 1987. Also, the court is pleased to have
the recommendations of Honorable Anne Roberts Bobo,
Attorney for the Arkansas Department of Pollution, Con-
trol & Ecology in amicus curiae brief submitted for the
court’s consideration.
Ability to pay and litigation considerations are
included in the factors to be considered in arriving at a
just and equitable decision.
In consideration of these factors, and the court hav-
ing presided over the trial of the case, it is the opinion of
the court that the maximum penalty for each violation
that could be assessed in the case would be unnecessary.
Applying the maximum under the Act would subject the
defendant to civil penalties in the sum of $430,000.
It is the considered judgment of this court that a civil
penalty of $1,000 for each of the 43 violations would be
reasonable, just and equitable. Therefore, the court will
enter a final judgment against the defendant, Tyson
Foods, Inc., in the sum of $43,000 a total penalty for
violations in accordance with the unanimous verdicts of
the jury.
App. 60
The court incorporates into this Memorandum Opin-
ion its findings and conclusions pursuant to Rule 52 of
the Federal Rules of Civil Procedure.
A judgment will be entered in accordance with this
opinion.
DATED this 23rd day of August, 1989.
/s/ Oren Harris
UNITED STATES SENIOR
DISTRICT JUDGE
App. 61
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
UNITED STATES OF AMERICA PLAINTIFF
V. No. 87-3069
CITY OF GREEN FOREST, ARKANSAS
and THE STATE OF ARKANSAS DEFENDANTS
CONSENT DECREE
(1) Plaintiff, the United States of America, on behalf
of the United States Environmental Protection Agency
(“EPA”), filed the complaint herein on September 28,
1987, alleging that the defendant, City of Green Forest,
Arkansas, had violated, and was in violation of §§ 301
and 307 of the Clean Water Act, 33 U.S.C. §§ 1311 and
1317, various Administrative Orders, and the City’s
National Pollutant Discharge Elimination System
(“NPDES”) permit, Number AR0021741.
(2) The City of Green Forest is a political subdivi-
sion of the State of Arkansas and owns and operates a
publicly owned treatment works (Green Fores “POTW”)
consisting of an existing treatment plant.
(3) The State of Arkansas has been joined as a
defendant pursuant to § 309(e) of the Clean Water Act, 33
U.S.C. § 1319(e), and shall be liable for payment of any
judgment, or any expenses incurred as a result of comply-
ing with any judgment, entered against the City to the
extent that the laws of the state prevent the City from
raising the revenues to comply with the consent decree.
(4) The United States of America, the City of Green
Forest, and the State of Arkansas, each acting through its
App. 62
respective attorneys, do hereby stipulate to the Court
that, in order to resolve the issues stated in the United
States’ complaint, this consent decree should be entered.
NOW THEREFORE, it is hereby ordered, adjudged
and decreed as follows:
I. JURISDICTION
(1) This Court has jurisdiction of the subject matter
of this action and over the parties to this agreement
pursuant to 28 U.S.C. §§ 1331 and 1345 and § 309 of the
Clean Water Act (the “Act”), 33 U.S.C. § 1319. Venue is
proper pursuant to § 309 of the Act, 33 U.S.C. § 1319.
(2) The complaint states claims upon which relief
may be granted under § 309 of the Act, 33 U.S.C. § 1319.
II. PARTIES
The parties to this action are:
(1) Plaintiff, United States of America, on behalf of
the Administrator of the United States Environmental
Protection Agency (“EPA”);
(2) Defendant, City of Green Forest (“Green For-
est”), a political subdivision of the State of Arkansas;
(3) Defendant, State of Arkansas, joined as a party
pursuant to § 309(e) of the Act, 33 U.S.C. § 1319(e).
II. BINDING EFFECT
(1) This consent decree shall apply to and be biding
upon Green Forest, Arkansas, the State of Arkansas, and
App. 63
the United States, and upon the officers, agents, trustees,
servants, employees, successors, assigns, and attorneys of
those parties, or any persons, firms or organizations,
claiming by, through, or on behalf of any of the respective
parties to this action. Green Forest shall give written
notice of this consent decree to any successors in interest
no later than 30 days prior to transfer of ownership,
operation or other interest in Green Forest’s POTW.
(2) Green Forest shall provide written instructions
which conform to the terms of this consent decree to each
and every contractor it may employ to assist in the imple-
mentation of the requirements of this decree. Upon trans-
fer of ownership, operation, or other interest in Green
Forest’s POTW, Green Forest shall provide a copy of this
decree to any successor in interest and to each contractor
retained to perform any activity required by this decree.
Green Forest shall condition the transfer of ownership,
operation, other interest, or any contract related to the
performance of the decree upon the successful execution
of the terms and conditions of this decree. Green Forest
shall notify in writing the United States Environmental
Protection Agency, Region VI, the United States Attorney
for the Western District of Arkansas, and the United
States Department of Justice of any successor in interest
at least 30 days prior to transfer.
IV. OBJECTIVES
All obligations described in this consent decree or
resulting from the activities required by this decree shall
have as their objective: causing the Green Forest POTW to
be in compliance with its NPDES Permit Number
App. 64
AR0021741 (the “Green Forest Permit”) or renewal
thereof, the Act, and the applicable Federal and State
laws and regulations governing discharges from Green
Forest’s POTW.
V. DEFINITIONS
Unless otherwise defined herein, terms used in this
Decree shall have the meaning given to those terms in the
Clean Water Act, 33 U.S.C. § 1251 et seq., the regulations
promulgated thereunder, see 33 U.S.C. § 1362, see also 33
C.F.R. § 401.11, and in any applicable NPDES permit.
VI. REMEDIAL MEASURES
Green Forest shall immediately comply with the
terms of its NPDES permit, including the reporting and
monitoring requirements, effluent limitations, and condi-
tions governing the implementation of its pretreatment
program.
Vil. STIPULATED PENALTIES
The Permittee shall pay the following stipulated pen-
alties for violations of its permit effluent limits during the
terms of this consent decree:
For each violation of the thirty day average limita-
tions for Biochemical Oxygen Demand, Total Suspended
Solids, ammonia (NH,N) or fecal coliform, whether the
violations are loading, concentration, or reporting viola-
tions, Green Forest shall pay $500 per violation;
App. 65
For any violation of the seven day limitations for
Biochemical Oxygen Demand, Total Suspended Solids,
fecal coliform, or ammonia (NH3N), whether the viola-
tions are concentration or reporting violations, Green For-
est shall pay $250 per violation;
For each violation of the limitations for minimum
pH, maximum pH, or minimum dissolved oxygen, Green
Forest shall pay $500 per violation.
The stipulated penalties herein shall be in addition to
other remedies or sanctions available to the United States
by reason of Green Forest’ failure to comply with the
requirements of this Decree, the NPDES Permit, or the
Clean Water Act.
Any stipulated penalties incurred by Green Forest
shall be paid by cashiers check payable to “Treasurer of
the United States,” and are to be tendered to the United
states Attorney for the Western District of Arkansas, Har-
rison Division, by the 15th day of the month following
the month in which the violations occurred, together with
a letter describing the basis for the penalties. A copy of
the letter and the check shall be sent to the United States
and the U.S. Environmental Protection Agency, Region
VI.
VIII. FORCE MAJEURE
1. If any event occurs which causes or may cause
the City to violate any provision of this decree, the City
shall notify the Court, the United States Attorney for the
App. 66
Western District of Arkansas, the Assistant Attorney Gen-
eral, Land and Natural Resources Division of the Depart-
ment of Justice, and EPA Region VI, in writing within
twenty days of such event, describing in detail the antici-
pated length of the violation, the precise cause or causes
of the violation, the measures taken or to be taken by the
City to prevent or minimize the violation, and the timeta-
ble by which those measures will be implemented. The
City shall promptly adopt all reasonable measures to
prevent or minimize any such violations and to comply
with all requirements of this decree as soon as possible.
Failure by the City to comply with the notice require-
ments of this paragraph shall render paragraphs VIII 2, 3
and 4 void and of no effect as to the particular incident
involved.
2. If the United States agrees that the violation h 5
been or will be caused entirely by circumstances beyond
the control of the City or any entity controlled by or
under the common control of the City, including the
City’s consultants and contractors, and that the City
could not have reasonably foreseen and prevented such
violation, then the time for performance hereunder upon
timely request, as set forth in paragraph 1 above and
pursuant to the procedures set forth in paragraphs VII 1,
3 and 4 shall be extended for a period no longer than the
actual delay resulting from such circumstances, and stip-
ulated penalties shall not be due for said delay.
3. In the event the United States does not so agree,
Green Forest may submit the matter to the Couri for
resolution pursuant to Section XII of this decree. The
United states [sic] shall notify the City in writin
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