# Petition for Writ of Certiorari — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 49 ## Text ——— + ee SS oe 86 -4 73 . a0 4 7 SEP 23 1986 JOSEPH F. SPANIOL, JR. No, -————— CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1986 GWALTNEY OF SMITHFIELD, LTD., Petitioner, Vv. CHESAPEAKE BAY FOUNDATION, INC., and NATURAL RESOURCES DEFENSE COUNCIL, ° Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT E. BARRETT PRETTYMAN, JR.* RICHARD J.M. POULSON PATRICK M. RAHER Davip J. HAYES CATHERINE JAMES LACROIX JOHN G. ROBERTS, JR. HoGAN & HARTSON (a partnership including professional corporations) 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4685 Counsel for Petitioner * Counsel of Record ———— es WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.c. 20001 a - oe _ > — a te a a ’ ‘ a . ‘ i ' 7 . pt ‘ ‘ . . ‘ | . ' . . : ’ * ’ a . { ‘ ' Ad - t a 4 y ~ a of is thd ae [et cali = a o™ : a wis @ Fy. ee QUESTION PRESENTED Did the court below err in holding that citizen suits may be brought under the Clean Water Act seeking penalties for purely past violations, contrary to the hold- ing of the Fifth Cireuit in Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (1985)? (i) ii PARTIES TO THE PROCEEDINGS Petitioner and defendant-appellant below Gwaltney of Smithfield, Ltd., is a wholly-owned subsidiary of Smith- field Foods, Inc.* Respondents and plaintiffs-appellees below are Chesapeake Bay Foundation, Inc., and Na- tural Resources Defense Council. e-__— TABLE OF CONTENTS QUESTION PRESENTED .... ..........-..--.---.--.-. ----s-2e0ee-0000 PARTIES TO THE PROCEEDINGS ......................------- TABLE OF AUTHORITIES. ............-.-----.--------0--es-eeeee0+ OPINIONS BELOW. ..............-...-2--...20--0---0-eccsecceecsesesenees- JURISDICTION. ...........--..----..-.0..-2c2ec0e- see -neseocenseccseenceecsees PERTINENT STATUTORY PROVISION ................... STATEMENT OF THE CASE ......................--.-------------- REASONS FOR GRANTING THE WRIT .................... I. The Decision Below Directly Conflicts With the iI. Decision of the Fifth Circuit In Hamker ............ A. The Court Below and the Fifth Circuit in Hamker Adopted Directly Contrary Read- ings of the Language of the Citizen Suit ES a . The Court Below and the Fifth Circuit in Hamker Adopted Contrary Views of the Role of the Citizen Suit Provision in the Clean . The Decision of the Fifth Circuit in Hamker and of the Fourth Circuit Below Cannot Be ISSEY CC ee The Question Over Which the Fourth and Fifth Circuits Have Split Is Important and Recurring. II ctccccincerscncnsacnssnreresescescensesesenss ccvessosaesssecorces 10 22 iv TABLE OF CONTENTS—Continued APPENDICES Appendix Appendix Appendix Appendix Appendix Appendix 9A wm PS 7 Page : Opinion of Court of Appeals .......... la : Opinion of District Court _.......... —— | : Judgment of Court of Appeals........ 75a : Order of Court of Appeals Denying Petition for Rehearing ................. 77a : Complaint filed June 15, 1984... 79a Stipulation filed December 17, ERE T Sy CO PLA SACO 85a v TABLE OF AUTHORITIES -° Cases Page Atlantic States Legal Foundation v. Al Tech Spe- cialty Steel Corp., 685 F. Supp. 284 (N.D.N.Y. a 22 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........ 17 City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979), cert. denied, Pe RF 9-10 Connecticut Fund for the Environment v. Job Plating Company, Inc., 623 F. Supp. 207 (D. Ce SID ficcnidedeiinernstilincsaititinaininepepereninanstmnnrevemmecven 22 Consumer Product Safety Comm’n v. GTE Syl vania, Inc., 447 U.S. 102 (1980)..................--..--. 8,17 Garcia Vv. United States, 469 U.S. 70 (1984) ........... 8 Friends of the Earth v. Archer Daniels Midland Co., No. 84-CV-413 (N.D.N.Y. 1986).................... 23 Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1985) .................---..------------ 26 Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 582 (W.D.N.Y. 1984) ............-........--.------- 23 Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (5th Cir. 1985) .................-...------eeeeeee- passim Land V. Dollar, 330 U.S. 731 (1947) ..............----------- 21 Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981) ....passim Milwaukee v. Illinois, 451 U.S. 304 (1981) ............. 9,17 Pawtuzet Cove Marina, Inc. v. Ciba-Geigy Corp., 22 Env’t Rep. Cas. (BNA) 1999 (D. R.I. 1985) .. 23 Sierra Club v. Aluminum Company of America, 585 F. Supp. 842 (N.D.N.Y. 1984) .............------------------ 23 Sierra Club v. Chevron U.S.A., Inc., No. CV 85- 1851 (C.D. Cal., Jan. 14, 1986), app. pending, No. 86-6287 (Oth Clr.) .......-20..2.--0.2....cccccceceeeees- 24 Sierra Club v. Copolymer Rubber and Chemical Corp., 621 F. Supp. 1013 (M.D. La. 1985), app. pending, No. 85-3763 (5th Cir.) ..............-.-- 19, 21, 22-23 Sierra Club v. Kerr-McGee Corp., 23 Env’t Rep. Cas. (BNA) 1685 (W.D. La. 1985) -.................-.. 23 Sierra Club v. Monochem, No. 84-147B (M.D. La. 1985), app. pending, No. 85-3762 (5th Cir.) -....... 23 “ vi TABLE OF AUTHORITIES—Continued Page Sierra Club vy. Raytheon Co., 22 Env’t Rep. Cas. (BNA) 1050 (D. Mass. Pe era 23 Sierra Club v. Shell Oil, No. 84-3583 (E.D. La. 1986), app. pending, No. 85-3753 (5th Cir.) 23 Sierra Club vy. Simkins Industries, Inc., 617 F. Supp. 1120 (D. Md. 2e eA 23, 24 Sierra Club v. Tosco Corp., 22 Env’t Rep. Cas. (BNA) 2117 (N.D. . ,. 7 aaa 23 Student Public Interest Research Group v. AT&T Bell Laboratories, 617 F. Supp. 1190 (D. NJ. a Sa” eat 13, 23 Student Public Interest Research Group Vv. Anchor Thread Co., 22 Env’t Rep. Cas. (BNA) 1150 Wty os 9, eR anders 23 Student Public Interest Research Group V. Georgia- Pacific Corp., 615 F. Supp. 1419 (D. NJ. 1985)... 23, 26 Student Public Interest Research Group v. Mon- santo Co., 600 F. Supp. 1474 (D. NJ. 1985) ___.. 13, 23 Student Public Interest Research Group v. National Starch and Chemical Corp., 23 Env’t Rep. Cas. ya P a cle 4 pL EOI: senate 24 United States v. Detrex Chemical Industries, Inc., 393 F’. Supp. 735 (N.D. Ohio _ as ea 13 United States vy. Earth Sciences, Inc., 599 F.2d 368 Ee OO aie eS Lo 13 United States vy. Eicher, 56 F. Supp. 972 (D.D.c. ow eee 27 United States v. Naftalin, 441 U.S. 768 (1979). 16-17 United States v. Turkette, 452 U.S. 576 (1981). x United States vy. Ward, 448 U.S. 242 (1980) 23 Weinberger v. Rossi, 456 U.S. 25 | 17 Statutes and Regulations CREE aar eeee 26 .., <<7.Se RR peREI 26 sata sitai inten ee NONE 23 vii TABLE OF AUTHORITIES—Continued Page EE AAC RTE 11,12 ENR ORS Ce 3 ET RC Ih a ED passim SE a ee er a 9 EA STE 10, 13 TS ee 23 TE See ae ee 4 Legislative Material S. Rep. No. 50, 99th Cong., Ist Sess. (1985) 22 S. Rep. No. 414, 92d Cong., Ist Sess. (1971) _......... 15 Hearings on Implementation of the Federal Clean Water Act Before the Subcomm. on Investiga- tions and Oversight of the House Comm. on Pub- lic Works and Transportation, 98th Cong., 2d Ey + eee 23 Water Pollution Control Legislation—1971 (H.R. 11896, H.R. 11895), Hearings Before the House Comm. on Public Works, 92d Cong., 1st Sess. ES SOS EE ee 15-16 Water Pollution Control Legislation, Hearings Be- fore the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works (1971) .... 15 116 Cong. Rec. 33104 (1970) 20. 18 118 Cong. Rec. 33700 (1972) 2... eect. 16 Other Authority EPA Civil Penalty Policy, Env’t Rep. (BNA) (Fed. Laws) 41:2991 (1984) 000000. 25 Schwartz & Hackett, Citizen Suits Against Private Industry Under the Clean Water Act, 17 Nat- ural Resources Lawyer 327 (1984) .....0000... 17, 22, 25 IN THE Supreme Court of the United States OCTOBER TERM, 1986 No. GWALTNEY OF SMITHFIELD, LTD., . Petitioner, CHESAPEAKE BAY FOUNDATION, INC., and NATURAL RESOURCES DEFENSE CM INCIL, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner Gwaltney of Smithfield, Ltd., respectfully prays that a writ of certiorari issue to review the judg- ment and opinion of the United States Court of Appeals for the Fourth Circuit, entered in the above-entitled proceeding on May 22, 1986. OPINIONS BELOW The opinion of the Court of Appeals for the Fourth Circuit is reported at 791 F.2d 304 and is reprinted in the appendix hereto (““App.”) at la. The opinion of the District Court for the Eastern Dis- trict of Virginia (Merhige, J.) is reported at 611 F. Supp. 1542 and is reprinted at App. 26a. JURISDICTION Respondents brought suit in the District Court alleg- ing jurisdiction under 33 U.S.C. § 1365. Petitioner filed a motion to dismiss for lack of subject matter jurisdic- tion, which was denied by the District Court on June 26, 1985. App. 26a. Petitioner appealed, and the Court of Appeals affirmed on May 22, 1986. App. 75a. A timely-filed petition for rehearing was denied on June 26, 1986. App. 77a. The jurisdiction of this Court to review the judgment of the Fourth Circuit is invoked under 28 U.S.C. § 1254 (1). PERTINENT STATUTORY PROVISION Section 505 of the Clean Water Act, 33 U.S.C. § 1365, provides in pertinent part: Citizen Suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this sec- tion, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permit- ted by the eleventh amendment to the Consi:tu- tion) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Admin- istrator or a State with respect to such a stand- ard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to per- form any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizen- * . a ship of the parties, to enforce such an effluent stand- ard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil pen- alties under section 1319(d) of this title. STATEMENT OF THE CASE Petitioner Gwaltney of Smithfield, Ltd. (“Gwaltney”), operates a meat vacking plant on the Pagan River near Smithfield, Virginia. Normal meat packing operations generate organic wastes that must be treated before dis- charge. The Virginia State Water Control Board issued Gwaltney a permit under the Clean Water Act, 33 U.S.C. § 1342, authorizing it to discharge treated effluent into the River. Gwaltney’s parent corporation, Smithfield Foods, Inc., acquired Gwaltney from ITT-Gwaltney on October 27, 1981. At that time Smithfield Foods received assurances . from ITT-Gwaltney that previous difficulties with the wastewater treatment system at the plant had been iden- tified and corrected. In fact, deficiencies in the system resulted in violations of the limits in Gwaltney’s per- mit. As Gwaltney itself reported in its discharge moni- toring reports, it exceeded the limits for fecal coliform / chlorine (“chlorine”) and total Kjeldahl nitrogen (“TKN”) on specified occasions between October 27, 1981, and May 15, 1984. Gwaltney proceeded to correct the inherited flaws in its wastewater treatment system that had resulted in the violations of its permit. Within one year the chlorination system had been corrected, and since October 1982 there have been no further problems with chlorine. Resolving 1 Chlorine levels were exceeded on isolated occasions during the winter of 1983-1984 due to the startup of Gwaltney’s new, state-of- the-art wastewater treatment system. The District Court recog- nized that such violations were inevitable with the startup of such a system. App. 69a-70a. 4 the TKN problem proved more difficult, requiring a major redesign of the treatment facility. Gwaltney undertook this effort with full notice to and the continuing approval of the State Water Control Board. After delays beyond Gwaltney’s control (including a six-month delay caused by the Board itself), Gwaltney’s new system achieved designed efficiency levels, and the parties stipulated that the last violation of the TKN limit occurred on May 15, 1984.* In light of Gwaltney’s efforts, the Board decided at its March 26, 1984, public meeting to take no action against Gwaltney for any past violations of the permit limits. At that proceeding the Board Chairman stated that “the violations at the moment, as I see the evidence, it seems to me that they are under control,” and the staff member presenting the report on Gwaltney re- sponded “[y]ou are right, they are now under control.” Ct. App. Ex. Vol. at 425. As the Chairman concluded, “It just doesn’t seem to me that it accomplishes anything from my point of view to take enforcement action for violations of standards that seem to have been not neces- sary at the outset.” Jd. On June 15, 1984, however, respondents Chesapeake Bay Foundation and Natural Resources Defense Council filed suit against Gwaltney under the citizen suit provi- sion of the Clean Water Act, 33 U.S.C. § 1365.° The suit * A discharge monitoring report filed in October 1985—-several months after judgment in the District Court—indicated an exceed- ence of the TKN limit at that time, an excusable “upset” caused by record flooding associated with Hurricane Gloria in September 1985. See 40 C.F.R. 122.41(n) (1985). * The State Water Control Board was aware, at the time of the March 26, 1984 meeting, of respondents’ intent to file suit. Indeed, the Board Chairman asked a representative of respondent Chesa- peake Bay Foundation who attended the meeting “why ya'll are thinking about suing when it seems to me, we may incline toward not taking any action for past violations, from what I’ve heard.” Ct. App. Ex. Vol. at 423-424. The Chairman stated, “Whatever we do, obviously ya'll can go ahead with your law suit, but that’s a 5 was based on the permit violations reported by Gwaltney in its discharge monitoring reports. Although the citizen _ suit provision authorizes suit against any person “alleged to be in violation” of limitations in a permit issued under the Act, respondents stipulated that the last violation by Gwaltney occurred on May 15, 1984, a full month before the suit was filed. App. 6a n.7, 7a, 86a, 93a. On June 26, 1985, the District Court issued an opinion assessing a penalty of some $1.3 million against Gwalt- ney. The District Court rejected Gwaltney’s argument that the citizen suit provision was limited by its express terms, structure, and legislative history to actions brought to abate ongoing violations, and did not cover past vi0- lations. The District Court conceded that the recent de- cision of the Fifth Circuit in Hamker v. Diamond Sham- rock Chemical Co., 756 F.2d 392 (5th Cir. 1985), was “authority for [Gwaltney’s] position,” but the District Court “respectfully disagree[d)” with Hamker and de- clined to follow its holding. App. 39a-40a. Gwaltney appealed, contending that the District Court erred in not following the ruling of the Fifth Circuit in Hamker that citizen suits could not be brought on the basis of past violations. The court below affirmed. It recognized that the “Hamker court refused to read ‘to be in violation’ as meaning ‘to have violated,’ stating that such an interpretation ‘obviously strains the grammar of the statute and diverges from its ordinary meaning.’” App. 8a (quoting Hamker, 756 F.2d at 395). Like the District Court, however, the court below “respectfully dis- agree(d]” with the Fifth Circuit decision in Hamker and “decline{d] to follow it to the extent that it holds that section 505(a) of the Clean Water Act [33 U.S.C. § 1365 much mor[{e} cumbersome way of dealing with the problem.” Id. at 424. In July 1984, after respondents filed the present suit, the Board initiated a protective enforcement action in state court that was voluntarily nonsuited after the decision of the District Court in this case. 6 (a)] does not permit citizen suits seeking civil penalties for past violations.” App. 8a, 15a. The court below recognized that the Fifth Circuit in Hamker relied upon the decision of this Court in Middlesex County Sewerage Authority v. National Sea Clammers Association, 458 U.S. 1 (1981). The court below dismissed statements in Middlesex County “that might be read as limiting the scope of citizen suits” as “mere dicta” that it declined to follow, adopting instead “an expansive reading of the jurisdictional grant” that it regarded as more consistent with “the importance of citizen suits as an enforcement tool.” App. 16a, 12a. REASONS FOR GRANTING THE WRIT I. The Decision Below Directly Conflicts With the De- cision of the Fifth Circuit in Hamker The Hamker case, like the present case, involved an action under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365. Plaintiffs in Hamker, like respond- ents in this case, sought civil penalties for violations that occurred entirely in the past and had ceased by the time suit was filed. The plaintiffs in Hamker sought penalties for damage caused by a pipeline leak. The pipeline had been repaired and the leakage problem abated prior to the filing of the suit. 756 F.2d at 394. Respondents in this case sought penalties for permit limit violations. It was Stipulated by the parties that the last such violations occurred a full month before the suit was filed. App. 6a n.7, 7a, 86a, 93a. In holding that citizen suits may be brought under the Clean Water Act seeking civil penalties for violations that occurred entirely in the past and are not continuing, the court below expressly declined to follow the contrary holding of the Fifth Circuit in Hamker. In Hamker, the _ Fifth Circuit stated that “(t]he language of section 1365 and the structure of the Act convince us that a complaint brought under section 1365 must allege a violation occur- 7 ring at the time the complaint is filed.” 756 F.2d at 395. In contrast, the court below held “that citizen suits like the one at bar, seeking civil penalties for permit viola- tions committed entirely in the past, are permitted under section [1365].” App. 17a. This Court should grant the writ to resolve this direct and irreconcilable conflict in the interpretation of the jurisdictional provision of an important Federal statute. A. The Court Below and the Fifth Circuit in Hamker Adopted Directly Contrary Readings of the Lan- guage of the Citizen Suit Provision The pertinent section of the Clean Water Act provides that “any citizen may commence a civil action * * * against any person * * * who is alleged to be in viola- tion of” a standard or limitation under the Act. 33 U.S.C. §1365(a) (emphasis supplied). The Fifth Cir- cuit in Hamker held that this statutory language must be read as written. “By its ordinary meaning the language of section 1365 requires an allegation of an ongoing vic- lation.” 756 F.2d at 395. Quite simply, if the violation alleged in the complaint ceased prior to suit, the defend- ant cannot be considered “to be in violation” at that time. Permitting citizen suits for purely past violations would require courts to rewrite the Act to provide for actions against any person alleged “to be or to have been in violation of” the Act. By its express and plain terms, the citizen suit provision is limited to ongoing violations that have not been abated by the time suit is filed.* 4In a brief concurring opinion, Judge Williams noted that the opinion of the court in Hamker carried his “full concurrence.” He wrote separately simply to indicate his view that the term “in violation” should be considered “broad enough to cover the chronic episodic violator or the violator who intentionally ‘turns off the Gwaltney did not “turn off the spigot” just prior to the instant suit, but had undertaken the substantial modifications necessary 8 The court below, however, reached a conclusion directly contrary to the holding of Hamker. Where the Hamker court adhered to the ordinary meaning of the words chosen by Congress, the court below found the language of the citizen suit provision “ambiguous.” According to the court below, “in violation” “can be read to compre- hend unlawful conduct that occurred only prior to the In relying on the plain language of the statute, the Hamker court adhered to the most basic canon of statu- tory interpretation. As this Court explained in Consumer 9 In Middlesex County Sewerage Authority V. National Sea Clammers Association, supra, this Court recognized that the citizen suit provision “allows suits under the Act by private citizens, but authorizes only prospective relief * * *.” 453 US. at 6.° Civil penalties for viola- tions that have been abated before suit is filed obviously do not constitute “prospective relief.” Accordingly, suits claiming civil penalties for totally abated actions cannot form the basis of an action under the citizen suit provi- sion. In Milwaukee v. Illinois, 451 U.S. 304 (1981), this Court emphasized the importance of adhering to the plain language of the very citizen suit provision at issue here. In that case, the Court rejected arguments that the lan- guage of a savings clause in the citizen suit provision should be read expansively to implement the purported intent of Congress. The Court emphasized that “Twle * * * are inclined to view the [savings clause] as mean- ing what it says” and that “[wle prefer to read the statute as written.” Jd. at 328, 329 n.22. That is pre- cisely the approach adopted by the Fifth Circuit in Hamker and rejected by the court below. The plain language reading of the citizen suit provi- sion in Middlesex County and Hamker has also been adopted by the Seventh Circuit in City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979), cert. denied, 444 U.S. 1025 (1980). In that case the court noted that the citizen suit provision authorizes a civil action against a party “alleged to be in violation” of effluent standards or limita- tions prescribed under the Act or an order of the Administrator or a state with responsibility under the Act. It does not provide for suits against parties 6 The Court in Middlesex County held that no private right of action should be implied under the Clean Water Act, and that no action could be maintained under 42 U.S.C. § 1983 for violation of the Act. 453 U.S. at 18, 21. 10 alleged to have violated an effluent standard or limi- tation in the past or for recovery of damages. [Jd. at 1014 (emphasis added) .] The Fifth Circuit in Hamker relied upon the decisions both of this Court in Middlesex County and of the Sev- enth Circuit in City of Evansville in concluding that reading the phrase “to be in violation” to mean “to have violated” “strains the grammar of the statute and di- verges from its ordinary meaning.” 756 F.2d at 395. B. The Court Below and the Fifth Circuit in Hamker Adopted Contrary Views of the Role of the Citizen Suit Provision in the Clean Water Act In support of their respective interpretations of the language of the citizen suit provision, the court below and the Fifth Circuit in Hamker also embraced funda- mentally different views of the role of the citizen suit provision in the statutory scheme of the Clean Water Act. The Hamker court correctly recognized that “[p] ri- mary enforcement responsibility under the Act lies with the states and the Administrator.” 756 F.2d at 395. Under the Act, States “desiring to administer their own permit programs must demonstrate that state officials possess adequate authority to abate violations through civil or criminal penalties or other means of enforce- ment.” Middlesex County, 453 1J.S. at 18. The Common- wealth of Virginia met these standards in the State Water Control Law, which authorizes the State Water Control Board to require regulated companies like Gwaltney to furnish information and submit to investigation. Va. Code §§ 62.1-44.15, .16, .20 & .21. The Board may issue administrative orders and rules, obtain injunctions and other orders in court, and impose civil penalties for purely past violations. Id. §§ 62.1-44.15, 23 & 82. As noted, Gwaltney kept the Board fully informed of the Company’s plans, participated in all public meetings on the status of its work, and received Board approval of its actions. (Qeteeeeiet eee ene aise 11 The Clean Water Act also grants a broad array of en- forcement powers to the Federal Government. The Ad- ministrator of the Environmental Protection Agency (EPA) is authorized to issue compliance orders to any person found to be in violation of statutory or permit conditions, including conditions for which no citizen suits are authorized. 33 U.S.C. § 1319(a). The Administrator may also respond to violations by bringing suit, and a court in such a case may impose appropriate civil penal- ties. Id. § 1319(b), (d). The Act also authorizes crim- inal prosecution in suitable cases. Id. $1819(c). See Middlesex County, 453 U.S. at 13. Congress “supplemented” this broad array of enforce- ment authority granted to the States and the Federal Government by also authorizing citizen suits of a “lim- ited nature.” Jd. at 14, 17 n.27. The limited supple- mental nature of citizen suits is clear from the terms of the Act. Before initiating a citizen suit, prospective plaintiffs must give notice to the Administrator, the State, and the alleged violator. When government officials re- spond by filing suit, the citizen action is barred. 33 U.S.C. § 1865(b). Similarly, as explained by the court in Hamker, “it is most reasonable to read the requirement that notice also be given to the alleged violator as an indication that where the violator responds to the notice by bringing himself into compliance, the citizen loses the right to bring suit under 1365(a), just as he loses the right to commence an action where the Administrator or the state responds by diligently prosecuting an action against the alleged violator * * *.” 756 F.2d at 396. The court below took an approach directly contrary to that of the Fifth Circuit in Hamker. Rather than view- ing the citizen suit provision as a limited supplement to the broad and comprehensive array of enforcement pow- ers granted to the States and the EPA, the court below ruled that “an expansive reading” of the citizen suit provision was necessary to effectuate the policies under- 12 lying the Act. App. 12a. The court noted that the separ- ate section of the Clean Water Act authorizing suit by the Administrator of EPA, 33 U.S.C. § 1319(a) (1), con- tains language similar to that of the citizen suit provi- sion. Assuming that the Administrator could seek pen- alties for past violations that have been abated, the court concluded that citizens must have the same right, since they must possess the same authority as the Ad- ministrator. According to the court below, “[i]t can hardly be questioned that the EPA has authority to bring suit for civil penalties for purely past violations,” and “the scope of citizen enforcement powers must, in this important respect, be viewed as co-extensive with the enforcement powers of the EPA.” App. 10a. One of the premises of this syllogism is incorrect, the other is not necessarily true, and the conclusion, even assuming the validity of the premises, is a non-sequitur. First, the language of the provision authorizing suit by the Administrator is significantly different from the language of the citizen suit provision. The Administrator may issue a compliance order or bring suit when he “finds that any person is in violation” of the Act. 33 U.S.C. § 1819(a) (1) (emphasis supplied). Such findings at a point prior to suit may support jurisdiction even if the violation ceases before suit. The citizen suit pro- vision, on the other hand, authorizes suit against any person “alleged to be in violation” of the Act, with no provision for jurisdiction premised on prior “findings.” 33 U.S.C. § 1365(a) (1).* Second, it is by no means es- tablished that the Administrator may obtain penalties for purely past violations, as the court below assumed. *It is significant that the United States agrees that “the juris- dictional provisions pertaining to citizen suits need not, and indeed should not, be construed in tandem with the governmental enforce- ment provisions.” Brief for the United States as Amicus Curiae Supporting Appellants at 20, Sierra Club v. Shell Oil Co., Nos. 85-3753, 85-3762, 85-3768 (Sth Cir.) (appeal pending). 13 That question is not presented in this case and need not be decided.’ Finally, even if the statutory language is considered similar, and even if EPA is considered to have the power to impose civil penalties for purely past violations, there simply is no basis for concluding that citizens must have the identical enforcement power. As the court in Hamker noted, the citizen suit “section obviously does not permit the citizen to duplicate the Administrator’s powers * * *.” 756 F.2d at 395 (emphasis in original). While the court below ruled that the authority of citi- zens to sue for penalties for past violations must be the same as the authority of the Administrator, the Hamker court properly recognized that such a parallelism was entirely inconsistent with the supplemental and sub- ordinate role of citizen suits in the statutory scheme: Thus, although we do not decide an issue not before us, the Administrator may have the power to seek some redress for past violations, but this is no rea- son to waive the statutory requirement that citizens must allege that the defendant is “in violation” of an 1 The court below cited four cases for the proposition that the Administrator could seek penalties for purely past violations. United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979), and United States v. Detrex Chemical Industries, Inc., 393 F. Supp. 735 (N.D. Ohio 1975), simply decided that the Administrator could simultaneously pursue administrative compliance orders and court actions for penalties. The cases did not specifically address the question of the Administrator’s authority to seek penalties for past violations. The other two cases, Student Public Interest Research Group v. AT&T Bell Laboratories, 617 F. Supp. 1190 (D. N.J. 1985), and Student Public Interest Research Group Vv. Monsanto Co., 600 F. Supp. 1474 (D. N.J. 1985), did not even involve actions by the seek penalties for purely past violations. Va. Gode § 62.1-44.15 (8c) (Supp. 1985) (“the Board may proceed directly under [its civil penalty powers] for any past violation”). 14 effluent standard, limitation or order. [756 F.2d at 395 (emphasis in original ) . ] The court below embraced an “expansive reading” of the citizen suit provision because of its view that “a sig- nificant deterrent would be lost if citizen suits seeking civil penalties for past violations were not permitted.” App. 12a, 10a. It was the view of Congress, however, that the policies of the Act could best be implemented by vesting primary enforcement responsibility in the States and the Administrator, with only a supplementary role for citizen suits of a “limited nature.” Middlesex County, 453 U.S. at 17 n.27. One of the express limitations on citizen suits is that they can be brought only against a person “in violation” of the Act. The court below erred in overriding the plain language adopted by Congress because of the court’s view that another approach—read- Statutes, not policies, and a court is not free to ignore the former to implement the latter. The court below sought support for its strained read- ing of the statute by noting that the citizen suit provi- sion expressly authorizes a court in an appropriate case to order that civil penalties be paid to the Government. App. 12a. This argument is classic bootstrapping. The App. 12a n.11. Indeed, this Court in Middlesex County expressly recognized that civil penalties were permitted under the citizen suit provision, 453 U.S. at 14 n.25, yet 15 nonetheless described that provision as authorizing “only prospective relief” and authorizing “private persons to sue for injunctions to enforce” the Act. Jd. at 6, 14. These statements are easily reconciled when it is recog- nized that there is no jurisdiction for a citizen suit un- less the suit concerns an ongoing violation—hence this Court’s focus on the “prospective relief” authorized by the provision—but that once such a suit is before a court it may order civil penalties. As the Hamker court noted, “t]he section ‘authorizes only prospective relief’ even though ‘civil penalties * * * may be ordered by the court.’” 756 F.2d at 396 (quoting Middlesex County, 453 U.S. at 6, 14 n.25). Although it did not rely on legislative materials, the court in Hamker noted that “the legislative history sup- ports our decision * * *.” 756 F.2d at 395 n.l. The legislative history of the citizen suit provision does in- deed demonstrate that Congress authorized citizen suits to be brought only to abate ongoing violations of the Clean Water Act. The Senate Report, for example, re- peatedly refers to citizen suits in the context of abating violations. See S. Rep. No. 414, 92d Cong., Ist Sess. (1971) at 81 (“citizen suits seeking abatement”), 80 (citizens may file actions when government authorities do not take action to abate violations), 81 (attorneys’ fees awardable to citizen plaintiffs “in actions which result in successful abatement”). The hearing record also repeatedly re- flects the understanding that citizen suits were author- ized only when necessary to abate an ongoing violation that either the State or EPA has not taken action to abate.* As this Court itself recognized in Middlesex 8 See, e.g., Water Pollution Control Legislation, Hearings Before the Subcomm. om Air and Water Pollution of the Senate Comm. on Public Works, 92d Cong., Ist Sess. (1971) at 114 (“Any person may sue a polluter to abate a violation”) (staff analysis), 707 (citizen suits “are brought for the purpose of abating pollution”) (Sen. Eagleton) ; Water Pollution Control Legislation—1971 (AR. 11896, H.R. 11895), Hearings Before the House Comm. on Public 16 County, the citizen suit provision in the Clean “was expressly modeled on the parallel provision Clean Air Act,” and “the legislative history of the latter Act contains explicit indications that private enforcement suits were intended to be limited to the injunctive relief expressly provided for.” 453 U.S. at 18 n.27.° continuous one, or an occasional or sporadic one,” 118 Cong. Rec. 33700 (1972), “[t}he short answer is that Congress did not write the Statute that way.” United mony of Stephen Saltzman, Washington Representative, Trout Un- limited), 439 (“[a] citizen’s suit provision permits the citizen to on of penalties in the Clean Water Act cannot be read to alta, saat purpose and permit citizen suits when the violation has already been abated. 17 States v. Naftalin, 441 U.S. 768, 773 (1979). On the contrary, the statutory language actually adopted by Con- gress limited citizen suits to those against a person “who is alleged to be in violation of” the Act. 33 U.S.C. § 1365(a). Senator Muskie’s written insert is the only item in the voluminous legislative history that departs from the abatement purpose expressed throughout the legislative materials. It provides an excellent example of why, as this Court has repeatedly emphasized, courts should not rely on such remarks, particularly “one iso- lated remark by a single Senator,” in seeking to discern legislative intent. Weinberger v. Rossi, 456 U.S. 25, 35 (1982). This is particularly true when the stray remark is directly contrary to the plain language of the statute and every other indicia of intent in the legislative his- tory.” The Fifth Circuit in Hamker, again relying on this Court’s opinion in Middlesex County, recognized that ex- panding the citizen suit provision to embrace suits for past violations would directly undermine the intent of Congress to limit the burden on the Federal courts. In Middlesex County, this Court recognized that the citizen suit provision in the Clean Air Act—the model for the % The court below considered itself justified in ascribing talis- manic significance to the comments of a single legislator because the legislator was Senator Muskie, sponsor of the Clean Water Act. App. 14a n.13. As this Court has often noted, however, “[t)he contemporaneous remarks of a sponsor of legislation are certainly not controlling in analyzing legislative history” Weinberger Vv. Rossi, 456 U.S. at 35 n.15. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. at 118; Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979). This rule applies with no less force to Senator Muskie’s comments on the Clean Water Act. See Milwaukee v. Illinois, 451 U.S. at 331 n.23 (“the dissent attaches great weight to the views of Senator Muskie”) (emphasis sup- plied). Indeed, as two commentators have noted, Senator Muskie’s “enthusiasm may explain his expansion of the statutory language.” Schwartz & Hackett, Citizen Suits Against Private Industry Under the Clean Water Act, 17 Natural Resources Lawyer 327, 348 (1984). 18 provision at issue in this case—was defended against the charge that it “‘may burden the courts unduly’” on the ground that it offered “‘no hope of financial gain and the very real prospect of financial loss’” for the citizen plaintiff. 453 U.S. at 18 n.27 (quoting 116 Cong. Rec. 33104 (1970) (remarks of Sen. Hart)). Expanding the scope of the citizen suit provision to include suits for purely past violations would provide a concrete financial incentive for citizen suits in Federal court. As the Ham- ker court explained: If section 1365 were interpreted as permitting citi- zen suits for civil penalties for past violations, all state damage claims which could be brought under pendent jurisdiction could be litigated in a federal forum, thus undermining congressional intent to limit the burden on the district courts. Since the Act provides for awards of attorney’s fees and ex- penses, there would be a substantial incentive to bring suit under the Act rather than in state court. (756 F.2d at 396.} Again, the court below was not persuaded by the rea- soning of the Fifth Circuit. The court conceded that the concern of the Hamker court was “a real one,” but dis- missed it by noting that District Courts could avoid the problem by being “wary” in their exercise of pendent jurisdiction. App. 17a. C. The Decision of the Fifth Circuit in Hamker and of the Fourth Circuit Below Cannot Be Reconciled The court below clearly recognized that its decision created a conflict with the Fifth Circuit, going so far as to devote a section of its opinion to “The Hamker Deci- sion.” App. 15a. The court began that section by sug- gesting that “it could be argued that Hamker is distin- guishable” because no permit was involved in Hamker and because Hamker concerned “only a single long-past and non-recurring discharge.” App. 15a. The fact that the present case involves permit violations while Hamker involved violations of the Act is a distinction without a 19 difference. The citizen suit provision authorizes suits against persons in violation of “an effluent standard or limitation under this chapter.” 33 U.S.C. § 1865(a) (1) (A). “{T]his chapter” refers to the Clean Water Act, and the effluent standards or limitations may be set in a permit issued under the Act, as in this case, or in the Act itself, as in Hamker. See 33 U.S.C. § 1365(f). There is simply nothing about the source of the limitation allegedly violated that can in any way reconcile the contrary jurisdictional holdings of the Fourth and Fifth Circuits." Nor can Hamker be distinguished as involving only a “single discharge.” The discharge in Hamker lasted two weeks. 765 F.2d at 394. Each day of a violation such as the one involved in Hamker is a separate violation under the Act, and accordingly Hamker involved some 14 violations of the Act. For that matter, the present case can also be viewed as involving only a “single discharge” —the regular discharge of treated effluent-from the Gwaltney plant into the Pagan River while repair of the system was underway. Under the Act that discharge resulted in several discrete violations, but that is equally true of the discharge at issue in Hamker. The important point is that in both Hamker and the present case any violations of the Act were abated prior to commencement of the citizen suit. In Hamker the past violations were held insufficient to satisfy the jurisdictional requirements of the citizen suit provision; in this case the past viola- tions were held to satisfy those same requirements. The court in Hamker in no way rested its decision on the nature or number of incidents of the discharge, but solely on the fact that it was a past violation. 11 District Courts in the Fifth Circuit have applied Hamker to cases in which the alleged violation was of a permit limitation. See, e.g., Sierra Club v. Copolymer Rubber and Chemical Corp., 621 F. Supp. 1013 (M.D. La. 1985), app. pending, No. 85-3763 (5th Cir.). States has firmed that it “believes that Hember cor rectly interpreted Section 505 (33 U.S.C. § 1365)” and that citizen plaintiffs cannot bring “penalty-only actions against violators who have attained compliance before suit is filed.” Brief for the United States as Amicus Curiae Supporting Appellants at 16 n.10, 25 n.17, Sierra Club v. Shell Oil Co., Nos. 85-3753, 85-3762, 85-3753 (5th Cir.) (appeal pending). The Government, however, because respondents alleged a continuing violation, even if the stipulated facts demonstrated that no such viola- tion existed when the suit was filed. The court below declined to accept this theory, and expressly did not decide whether any allegations of con- tinuing violation by respondents were made in good faith: Because we hold that the Clean Water Act confers not decide whether in this case made their allegations of uing violations in faith. * * * (S)uch an is not requi or juris- diction to lie. [App. 7a-8a n.9.] Nor would the Government’s theory succeed in recon- ciling the two cases, even if it had been accepted. Re- spondents’ allegations that Gwaltney constituted “a threat to continue its violations,” App. 7a n.9, were no different from plaintiffs’ allegations in Hamker that the defendant continued to operate its pipeline in a manner that would result in future violations of the Act. See 756 F.2d at 394, 397-398. In both cases the allegations were to the can a ‘iil jue peed ab allttin bait Hit HE He a | i Hoe HLH erat Prerameatiet Ae At ii iinet lel TEM Tie FE ijn HEB HTH Baye sa Ate 25% & Bae i i é + Hy i Lis Ha 42 = A BHT 7 itt ‘teat Hag a Lil cea ig ie ia PET at sHbiee re s Es = SE g,73 gs Ss ae Edit on ots] 524) tt Wilig ru SUEsadaba = “agdniisageiiil Ht bas iy . * +E al Ni Mt i iL Ut. HPRE raed "Hk The decision of the court below will doubtless precipi- tate an even greater increase in the volume of citizen suits. As of January 1984, some 65,000 permits had been issued under the Clean Water Act. Hearings on Implementation of the Federal Clean Water Act Before the Subcomm. on Investigations and Oversight of the House Comm. on Public Works and Transportation, 98th Cong., 2d Sess. 4-5 (March 7, 1984) (statement of Hugh J. Wessinger, General Accounting Office). Violations of effluent limits in those permits must be reported by the permit holders themselves in discharge monitoring reports, which are required by law to be made available to the public. 33 U.S.C. § 1818; 40 C.F.R. § 122.41 (1) (4). The reports are generally sufficient to establish a violation of the Act. See United States v. Ward, 448 U.S. 242 (1980). As the Act is interpreted in the Fourth Circuit, then, “any citizen” with standing need only look up the dis- charge monitoring reports of any one of the thousands ber and Chemical Corp., 621 F. Supp. at 1014-15 (four consoli- dated cases); Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532, 535 (W.D.N.Y. 1984) ; Sierra Club v. Simkins Indus- tries, Inc., 617 F. Supp. 1120, 1126-27 (D. Md. 1985); Student Public Interest Research Group v. AT&T Bell Laboratories, 617 F. Supp. at 1194-95; Student Public Interest Research Group V. Georgia-Pacific Corp., 615 F. Supp. 1419, 1425-26 (D.N.J. 1985) ; Student Public Interest Research Group Vv. Monsanto Coc., 600 F. Supp. at 1476-77; Sierra Club v. Aluminum Company of America, 585 F. Supp. 842, 853-854 (N.D.N.Y. 1984) ; Student Public Interest Group v. National Starch and Chemical Corp., 23 Env’t Rep. Cas. (BNA) 1982, 1984 (D.N.J. 1985) ; Sierra Club v. Kerr-McGee Corp., 23 Env’t Rep. Cas. (BNA) 1685, 1689-90 (W.D. La. 1985) ; Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 22 Env’t Rep. Cas. (BNA) 1999, 2000 (D.R.I. 1985) ; Sierra Club v. Raytheon Co., 22 Env’t Rep. Cas. (BNA) 1050, 1054-55 (D. Mass. 1984) ; Student Pub- lic Interest Research Group ¥. Anchor Thread Co., 22 Env’t Rep. Cas. (BNA) 1150, 1154 (D.N.J. 1984) ; Sierra Club v. Tosco Corp., 22 Env’t Rep. Cas. (BNA) 2117 (N.D. Cal. 1984) ; Sierra Club v. Monochem, No. 84-147B (M.D. La. 1985), app. pending, No. 85-3762 (5th Cir.) ; Sierra Club v. Shell Oil, No. 84-3583 (E.D. La. 1986), app. pending, No. 86-3753 (5th Cir.) ; Friends of the Earth v. Archer Daniels Midland Co., No. 84-CV-413 (N.D.N.Y. 1986). 24 of permit holders, find a violation—no matter how iso- lated, no matter how old—and file suit, with every con- fidence of prevailing and recovering all attorneys’ fees and expenses.’*® Under the rule announced below, any violation at any time in any one of ayer 65,000 permits can form the basis of a suit by any citizen, seeking penalties of up to $10,000 per day.” The plaintiff’s case is essentially made by the defendant himself in the discharge monitoring re- ports. Citizen plaintiffs thus have little to lose and much to gain simply by flipping through old discharge moni- toring reports. And, as noted by the Hamker court, there is a strong incentive for plaintiffs to append state law damage claims to their citizen suits, thereby covering their attorneys’ fees and expenses on those claims as well.'® % Since the plain language of the statute does not authorize citizen suits for purely past violations, and since Congress did not intend to authorize such suits, it is not surprising that the citizen suit provision contains no statute of limitations. Courts that have misread the statute to permit citizen suits for purely past violations have been compelled to struggle with the vexing issue of finding an appropriate limitations period to “borrow” for such litigation, with widely divergent results. Some courts have gone so far as to hold that there is no limitations period for citizen suits. See Student Public Interest Research Group v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1083-85 (D.N.J. 1986). Others have borrowed the five-year limitations period in Federal law for civil penalty actions, see Sierra Club v. Simkins Industries, Inc., 617 F. Supp. at 1124-25, while still others have borrowed limitations periods from state law. See Sierra Club v. Chevron U.S.A., Inc., No. CV&85-1851 (C.D. Cal., Jan. 14, 1986), app. pending, No. 86-6287 (9th Cir.). 7 This result is particularly troubling in view of the holding below—which we believe to he erroneous but which is not chal- lenged here—that a violation of a single monthly limit constitutes thirty violations instead of one, resulting in a maximum penalty of $300,000 rather than $10,000. See App. 18a-22a. 1% The holding of the court below also increases the danger of another incentive to suit wholly inconsistent with the objectives of the Act. Penalties under the Act are payable to the United States 25 The holding of the court below will also disserve the objectives of the Clean Water Act by permitting citizen suits to interfere with the primary enforcement respon- sibilities of States and the EPA under the Act. There is no doubt that Congress intended citizen suits to supple- ment government efforts to abate pollution, and indeed to spur government action when necessary to stop pol- lution. Congress did not, however, intend to permit citi- zens to exhume purely past violations, and bring penalty actions on the basis of such violations. Such suits do not help abate pollution—by definition, the problem al- ready has been abated. Instead, they actually interfere with government efforts to promote prompt compliance with the Act. One of the objectives of EPA’s enforcement policy is the swift resolution of environmental problems. EPA Civil Penalty Policy, Env’t Rep. (BNA) (Fed. Laws) 41:2991 (February 16, 1984). To serve this objective, EPA has established a formal policy that it “will con- sider reducing the gravity component of the penalty for settlements in which the violator already has instituted expeditious remedies to the identified violations prior to the commencement of litigation.” Id. at 2993. If citizens could exhume past violations years later, however, and sue for maximum penalties, the incentive underlying this pol- Treasury, not to citizen plaintiffs. The prospect of large penalties, however, can be used as leverage to obtain a settlement directly benefitting the citizen plaintiff. It is common knowledge in the industry, for example, that many defendants in these suits settle the claims against them by making contributions to the plaintiff groups bringing suit or to projects sponsored by those groups. See Schwartz & Hackett, 17 Natural Resources Lawyer at 359. The United States recognized that this is a serious problem in the amicus brief it filed below. See Br. at 26 n.18 (“parties to a private enforcement action could attempt to circumvent the court’s penalty assessment and unjustly enrich the plaintiffs at the expense of the Treasury”). The Governmert goes so far as to argue that “courts should subject any settlements to some form of public notice and comment similar in effect to those used by the government.” I/d. The seriousness of the problem, however, could be mitigated simply 26 i etely evaporate.” The strained reading ef the statute permitting such suits thus undermines the sep gp yids yg That goal, after all, was “to re and maintain the chemical, physical, and bio- echoed titans of to Nation’s waters,” 33 U.S.C. § 1251 (a), not to restore and maintain the environmental liti- gation bar. The citizen suit provision essentially vests prosecutorial functions in private citizens. Private citizens, however, unlike state or Federal authorities, are not accountable to the electorate. Serious constitutional questions would be presented if the decision below were permitted to stand.” Congress has on limited occasions expressly au- thorized private citizens to seek penalties payable to the United States for purely past violations. Sec, ¢.g., 31 U.S.C. § 3730. Congress knows how to authorize such actions if it wants to, and, in light of the serious ques- tions surrounding such suits, they should not be implied in the absence of express authorization." The citizen by adhering to the language of the statute and not permitting citizens to seek penalties for purely past violations. Only a formal consent order issued in Federal court would bar subsequent citizen suits. See Student Public Interest Research Group v. Georgia-Pacific Corp., 615 F. Supp. at 1482. A consent order issued iu a state administrative proceeding would not have such an effect. See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1986). 7 In the case of an ongoing violation, either the State or EPA can bring suit after notice from the citizen plaintiff, and such action precludes the citizen suit. In the case of purely past viola- tions that the governmental authorities have decided do not warrant - court action, however, there would appear to be no mechanism by which the State or EPA could sue to prevent penalties being im- posed. The State or EPA could hardly sue for the purpose of obtaining no relief. *1 One reason such actions seeking penalties for purely past vicla- tions should not be implied is that when Congress has authorized such suits, it has takem care to enact express safeguards against the problem of settlements benefitting the private plaintiffs at the expense of the United States. See id. § 3730(b) (1) (citizen suit 27 suit provision should be interpreted—as it was by the Fifth Circuit in Hamker—to avoid these serious ques- tions, particularly since such an interpretation is com- pelled by the plain language of the statute and supported by the legislative history. In the Fourth Circuit, citizen suits may be brought under the Clean Water Act for purely past violations. In the Fifth Circuit, they may not. This Court should grant the writ to resolve this direct and irreconcilable conflict on an important and recurring question of Fed- eral law. CONCLUSION For the foregoing reasons, this Court should grant the writ and reverse the decision of the court below. Respectfully submitted, E. BARRETT PRETTYMAN, JR.* RICHARD J.M. POULSON PATRICK M. RAHER DAvip J. HAYES CATHERINE JAMES LACROIX JOHN G. ROBERTS, JR. HoGAN & HARTSON (a partnership including professional corporations) 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4685 Counsel for Petitioner * Counsel of Record seeking penalties for false claims “may be dismissed only if the court and the Attorney General give written consent and their rea- sons for consenting”) ; United States v. Eicher, 56 F. Supp. 972, 973 (D.D.C. 1944) (intent of quoted language was “to discourage private compromise settlements”). See note 18, supra. j - 7 7 é ’ ‘ a) : : ‘ al “ * rs -— | . - hd i) eo APPENDICES APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 85-1873 CHESAPEAKE BAY FOUNDATION, INC.; NATURAL RESOURCES DEFENSE, — Appellees, GWALTNEY OF SMITHFIELD, LTD., Appellant, UNITED STATES OF AMERICA, Amicus Curiae, ATLANTIC STATES LEGAL FOUNDATION, CONNECTICUT FUND FOR THE ENVIRONMENT, FRIENDS OF THE EARTH, SIERRA CLUB, and STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, Amici Curiae. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., District Judge. (C/A 84-366-R) Argued: February 4, 1986 Decided: May 22, 1986 Before WINTER, Chief Judge,, and RUSSELL and SPROUSE, Circuit Judges. Patrick M. Raher (David J. Hayes; Catherine J. La- Croix; Hogan & Hartson; Anthony F. Troy; George A. Somerville; Mays, Valentine, Davenport & Moore on brief) for Appellant; James Thornton, Natural Resources 2a Defense Council, Inc., and Jeter M. Watson, Chesapeake Bay Foundation, Inc. for Appellees; Joseph E. Lees, De- partment of Justice (F. Henry Habicht II, Assistant At- torney General; Nancy B. Fireston and David C. Shilton, Department of Justice; Glenn Unterberger; Elizabeth Ojala, Office of Enforcement und Compliance Monitoring, Environmental Protection Agency; Bruce J. Terris, Nathalie V. Black on brief) for Amicus Curiae. WINTER, Chief Judge: Plaintiffs Chesapeake Bay Foundation (“CBF”) and National Resources Defense Council (“NRDC”) filed a “citizen suit” under section 505 of the Clean Water Act, 33 U.S.C. § 1365, against defendant Gwaltney of Smith- field, Inc. (“Gwaltney”), alleging violations of the pol- lutant effluent limits contained in Gwaltney’s National Pollutant Discharge Elimination System (“NPDES”) permit, issued pursuant to section 402 of the Act, 33 U.S.C. § 1842. The district court granted plaintiffs’ mo- tion for partial summary judgment on the issue of liability and held a hearing to determine the amount of the civil penalty to be assessed against Gwaltney pur- suant to section 309(d) of the Act, 33 U.S.C. § 1319(d). Several months later, Gwaltney filed a motion to dismiss for lack of subject matter jurisdiction, alleging that it had ceased violating its permit prior to plaintiff's filing suit. Gwaltney argued that citizen suits for purely past violations are not permitted under the Act, and that for jurisdiction to lie, the Act requires a defendant to be violating the Act at the time suit is filed.’ The district court denied the motion to disr- iss, holding that citizen suit jurisdiction could lie in the absence of an ongoing violation. It also ruled that Gwaltney was * Gwaltney also argued that CBF and NRDC lacked standing to bring this lawsuit. The district court rejected this contention, and Gwaltney does not appeai from this aspect of its ruling. liable for a maximum civil penalty’® of $6,660,000, but, in view of a variety of factors, adjusted the penalty downward to $1,285,322.* Gwaltney appeals, and we affirm. I. Plaintiffs are nonprofit corporations dedicated to pro- tecting natural resources. CBF is a regional environ- mental group with over 19,000 members residing ‘n the Chesapeake Bay area, and NRDC a nationwide e viron- mental group with over 800 of its members residing in Virginia. Gwaltney is a subsidiary of Smithfield Foods, Inc., and is engaged in the business of processing and packing pork products. Smithfield Foods had acquired the Gwaltney plant, which is situated on, and discharges wastewater into, the Pagan River near Smithfield, Vir- ginia, from the ITT-Continental Baking Co. Gwaltney assumed responsibility for wastewater discharge under the NPDES permit as of October 27, 1981; although numerous violations of the permit occurred before that date, only those violations occurring afterward are the subject of this lawsuit. Jurisdiction over this citizen suit was grounded on Section 505(a) of the Act, 33 U.S.C. § 1365(a), which permits any citize to commence a civil action against any person alleged to be in violation of an effluent stand- ard or limitation under the Act, in order to enforce the limitation and/or to assess civil penalties for its viola- 2 Civil penalties under the Act are payable to the U.S. Treasury, and are to be distinguished from private civil damages, awarded to a plaintiff. Such damages are very clearly not permitted by the Act. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981). 8 The district court’s opinion is reported at 611 F. Supp. 1542 (E.D. Va. 1985). 4a tion.* The suit was filed more than sixty days after plaintiffs, in compliance with section 505(b) (1) (A) of the Act, 33 U.S.C. § 1865(b) (1) (A), had given Gwalt- ney, the Environmental Protection Agency (“EPA”) and the Virginia State Water Control Board notice of Gwaltney’s violations and of the plaintiffs’ intent to file suit. The violations involved in this case (the responsibility for which is not at issue on appeal) are repeated dis- * This section of the Act, in its entirety, provides: Citizen Suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— : S : : 2 4 by law, see 33 U.S.C. § 1318(a)(3)(A); 40 C.F.R. § 122.41(1) (4), in its discharge monitoring reports (DMR’s). wie At ile fh Hitless faye {iia ag i He i aH Hittite | ie erat Ht le H i TH AH iflass Ta II. A. Subject Matter Jurisdiction Because it is undisputed that Gwaltney had ceased vio- lating its permit before June 15, 1984, when suit was instituted, Gwaltney contends that the district court lacked jurisdiction over the subject matter of the suit. It argues that the plain language of the Act requires this result, because a defendant, under section 505(a), must be “in violation” of the Act for jurisdiction to attach.’ ® Section 505(a) actually confers jurisdiction in cases of a per- son “alleged to be in violation” of an effluent standard or limita- tion issued under the Act. Plaintiffs argue in the alternative, and the United States, as amicus curiae, asserts as its primary con- tention, that the statute be read as conferring citizen suit jurisdic- tion when there is a good faith allegation of a continuing violation. The district court itself offered, as an alternative basis for deciding this case, an interpretation of section 505(a) as a rule of good faith pleading, similar to the amount-in-controversy requirement for diversity jurisdiction. See 611 F. Supp. at 1549 n.8. In the latter instance, the amount stated in the plaintiff's complaint is deter- minative of jurisdiction, if made in good faith. The fact that the plaintiff ultimately recovers less than the jurisdictional amount does not divest the court of jurisdiction. In the case before us, plaintiffs, in requesting civil penalties and injunctive relief, alleged that Gwaltney had continued to violate the Act after plaintiffs had given Gwaltney notice of their intent to sue, and that without appropriate judicial relief was a threat to continue its violations. A very sound argument can be made that plaintiffs’ allegations of continuing violations were made in good faith, despite the fact that Gwaltney has not actually violated the Act since May 15, 1984. Given the facts that excessive TKN dis- charges are more likely in the winter than in warmer weather, and that Gwaltney had been responsible for numerous violations during the winter immediately prior to the filing of this suit, it was not at all clear at the time of filing in June 1984, that Gwaltney’s new and unproven water treatment facilities would survive the coming winter without mishap. . However, our holding, as developed in the text, assumes the now- established fact that as of May 15, 1984, Gwaltney had ceased violating the limits of its NPDES permit. Because we hold that the Clean Water Act confers on the district court jurisdiction over 8a Gwaltney interprets this statutory language as requiring a polluter to be violating the Act at the time suit is filed against it. Gwaltney further contends that the structure of the statute and its legislative history limit the role of citizen suits to seeking abatement of ongoing violations and obtaining civil penalties for past violations only when jurisdiction is established by the existence of an ongoing one. We disagree with each of these contentions and hold that the Clean Water Act authorizes citizens, as “private attorneys general,” see Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 17, 14 n.23 (1981), to seek civil penalties for past violations of the Act as well as abatement of ongoing violations. 1. Statutory Language Gwaltney argues that the ordinary meaning of section 505 requires that a defendant be engaged in a violation at the time the complaint against it is filed for juris- diction to lie. See Hamker v. Diamond Shamrock Chemi- cal Co., 756 F.2d 392, 395 (5 Cir. 1985). The Hamker court refused to read “to be in violation” as meaning “to have violated,” stating that such an interpretation “ob- viously strains the grammar of the statute and diverges from its ordinary meaning.” Jd. We respectfully disagree. We do not read the language as encompassing only those situations in which a defend- ant is currently violating the Act. Rather, we agree with the district court that the language is ambiguous, in that it can be read to comprehend unlawful conduct that occurred only prior to the filing of a lawsuit as well as citizen suits seeking civil penalties for past violations, we need not decide whether plaintiffs in this case made their allegations of continuing violations in good faith. Because being “in violation” of the Act encompasses more than just perpetration of ongoing violations, or chronic episodic violations likely to recur in the near future, such an allegation is not required for jurisdiction to lie. 9a unlawful conduct that continues into the present.’® See also Student Public Interest Research Group v. Monsanto Co., 600 F. Supp. 1474, 1476 (D. N.J. 1985) (“A plaus- ible construction of the language is that one is ‘in viola- tion’ and continues to be ‘in violation’ by having ‘vio- lated.’ In other words, the taint of a past violation is continuing.”). We therefore cannot, as Gwaltney urges, rely on the “plain meaning” of this language in deciding this case. Instead, we look beyond the language itself to the structure of the statute and its legislative history to discern congressional intent as to the scope of citizen suit jurisdiction. | 2. Statutory Structure In light of the language of numerous other sections of the Act, Gwaltney’s reliance on the words “in violation” to curtail the scope of citizen suits undermines its posi- tion. Virtually all of the enforcement provisions of the Act, for citizen and government enforcement alike, em- ploy similar, present-tense phrasing. See, e.g., 33 U.S.C. § 1319(a)(1) (EPA Administrator authorized to take enforcement action, including court action, whenever he “finds that any person iz in violation of any condition or limitation ... .”); id. § 1819(a) (3) (Administrator may issue a compliance order or file a civil suit whenever he “finds that any person is in violation” of certain provi- sions of the Act or of permit conditions or limitations) ; id. § 309(c) (1) (criminal penalties may be imposed on “fa]ny person who willfully or negligently violates” cer- tain provisions of the Act or permit conditions or limita- 1 The district court offered a useful analogy to the situation of a taxpayer who underpays his taxes in one year and pays in full his taxes for subsequent years. Having once underpaid, he con- tinues to be “in violation” of the tax laws, the relevant statute of limitations being the only obstacle to a finding of liability for the year of delinquency. 611 F. Supp. at 1547; see also Student Public Interest Research Group v. AT & T Bell Laboratories, 617 F. Supp. 1190, 1195 (D. N.J. 1985). 10a tions). It can hardly be questioned that the EPA has authority to bring suit for civil penalties for purely past violations. Cf. United States v. Earth Sciences, Inc., 599 F.2d 368, 375-76 (10 Cir. 1979) (EPA may, under 33 U.S.C. § 1319(a) (3), either issue a compliance order to prevent future pollution or seek civil penalties for past violations, or do both) ; United States v. Detrex Chemical Industries, Inc., 393 F. Supp. 735, 738 (N.D. Ohio 1975) (same); Student Public Interest Research Group v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1197 (D. N.J. 1985) (“(T]here is no doubt that the EPA may bring suit based on past violations.” Student Public In- terest Research Group v. Monsanto Co., 600 F. Supp. 1474, 1476 (D. N.J. 1985) (“It can hardly be argued that the Government is restricted to abatement actions [to the exclusion of suits for civil penalties}”). Thus “in violation,” in the context of government enforcement, has been construed to encompass past, completed violations as well as current, on-going transgressions. Any other read- ing of the Act would eliminate a significant deterrent to violations of the Act and severely undercut the Act’s ambitious purpose, “to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” 33 U.S.C. § 1251 (a). Similarly, a significant deterrent would be lost if citi- zen suits seeking civil penalties for past violations were not permitted. For this reason, the scope of citizen en- forcement powers must, in this important respect, be viewed as co-extensive with the enforcement powers of the EPA. A number of courts have so held, based largely on the similarity of language between the provisions au- thorizing government units and the citizen suit provision. See Connecticut Fund for the Environment v. The Job Plating Co., 623 F. Supp. 207, 213 (D. Conn. 1985) (“{Rjemedies obtainable in citizen suits should be co- extensive with those available in suits initiated by the federal government.”) ; Student Public Interest Research lla Group v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1425 (D. NJ. 1985) (“In suits uader Section 505 of the Clean Water Act, citizens have the same remedies avail- able to the EPA”); AT&T Bell, 617 F. Supp. at 1199 (“(T]o hold that citizen suits alone are barred from seeking civil penalties for past violations would thwart the goal of uniformity in enforcement.”). Gwaltney argues further that the Act is structured so that citizen suits are to play a “distinct and limited” role in the enforcement of the Act, one “supplementary” to the roles of state and federal agencies. While it can- not be denied that citizens’ enforcement authority is nar- rower than that of government—citizens, for example, obviously cannot seek criminal penalties or issue com- pliance orders—the Act does not deprive citizens of the right to sue for past violations. This conclusion is supported by the fact that the Act does impose certain express limitations on the bringing of citizen suits. Sec- tion 505(b), 33 U.S.C. § 1365(b), provides that no citi- zen suit may be commenced less than sixty days after the plaintiff has given notice of an alleged violation to the Administrator, the state in which the violation occurs, and the alleged violator. The section also prohibits filing of a citizen suit if either the Administrator or the state has commenced and is diligently prosecuting a civil or criminal action in federal or state court. In such cases, however, a citizen is permitted to intervene as a matter of right. These provisions have been narrowly construed by the courts, e.g., Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 63 (2 Cir. 1985) (initiation of administrative enforcement action by state agency did not preclude filing of citizen suit), and the Act contains no other express limits on institution of citizen suits. We read the statute as requiring only those limits on citizen suit jurisdiction that Congress expressly pro- vided; we see no reason to impose by implication limits which Congress could have, but did not, create. 12a The fact that section 505(a) itself expressly authorizes the court in a citizen suit to “apply any appropriate civil penalties under [section 309(d), 33 U.S.C. 1319(d)]” lends further support to plaintiffs’ position. Courts have relied on this fact in concluding that the Act authorizes citizen suits seeking civil penalties for past violations. See, e.g., Georgia Pacific, 615 F. Supp. at 1425 (language of sections 505(a) and 309(d) “has been held to sustain civil penalties for past violations”) (citing United States v. Earth Sciences, Inc., 599 F.2d 368, 376 (10 Cir. 1979) ; Monsanto, 600 F. Supp. at 1476 (section 505(a) “quite specifically refers to the court’s power to impose civil penalties and contains no limiting time frame”). Stu- dent Public Interest Research Group v. Anchor Thread Co., 22 Env’t Rep. Cas. (BNA), 1150, 1154 (D. NJ. 1984) ; Job Plating, 623 F. Supp. at 213." Moreover, an expansive reading of the jurisdictional grant contained in section 505(a) is consistent with S. Rep. No. 414, 92d Cong., Ist Sess. 79 (1971), prinied in 1 A Legislative History of the Water Pollu- tion Control Act Amendments of 1972, at 1497 (here- whatsoever is available unless there is an ongoing violation on which to ground jurisdiction under section 505 (a). tes a ie i bes i i Given this recognition of the importance of citizen general” under the Act, “suggest[s] that Congress in- suits seeking civi: penalties, and the fact that Congress tended citizens to step into the shoes of government cies that failed to act”). knew how to, and did, in some ways, expressly limit the application of these suits, there is no reason to sup- expressly provided for and noc imposed on civil suits by striction—the requirement of an ongoing violation—not pose that Congress intended to impose an additional re- l4a ever, do not state that abatement of ongoing violations is the only relief available under section 505(a), and in fact refer to the availability of civil penalties. Jd. at 1497." The sections of the legislative history that speak most directly to the issue before us are the oral and written one, or an occasional or sporadic one.” 118 Cong. Rec. 33700, (1972), reprinted in 1 Legislative History at 179 (emphasis added). The Senator also noted that “{c]iti- zen suits can be brought to enforce against both con- * Gwaltney notes further that the same emphasis on abatement appears in the history of the Clean Air Act vision, 42 U.S.C. § 7664, on which Section Act was modeled. Citations to the Clean to interpreting sections 301 and 204 of the Act); American Meat Institute v. EPA, 526 F.2d 442, 451-52 (7 Cir. 1975) (relying or. written comments by Muskie, as “the principal author of the Act”). l5a tinuous and intermittent violations.” Jd. at 163. Mr. Muskie’s comments indicate quite strongly that the Act was intended to permit citizens, as private attorneys gen- eral, to sue violators even in the absence of a violation that is ongoing at the time suit is filed. 4. The Hamker Decision Gwaltney relies heavily on Hamker v. Diamond Sham- rock Chemical Co., 756 F.2d 392 (5 Cir. 1985). As sug- gested in Section IIA(1) above, we find the reliance to be misplaced. Hamker involved a citizen suit seeking civil penalties, an injunction, and damages by way of pendent state law claims, as a result of an oil spill, a one-time occurrence that took place many months before suit was filed. There was no effluent permit or com- pliance order involved. The Hamker court relied chiefly on the “ordinary meaning” of the statute and on Middle- sex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), in concluding that prospective relief is the only kind of relief authorized by the Act’s citizen suit provision, and that civil penalties are avail- able “only as prospective relief.” 756 F.2d at 398-99. Because no permit violation was involved in Hamker, because only a single long-past and non-recurring dis- charge (for which not even a good faith allegation of a possible continuing violation could have been made), and because the Hamkers failed to allege a violation of any effluent standard or limitation under the Act, it could be argued that’ Hamker is distinguishable on its facts and on that basis inapplicable to the case before us. But even if not distinguishable, we decline to follow it to the extent that it holds that section 505(a) of the Clean Water Act does not permit citizen suits seeking civil penalties for past violations. As we have discussed above, we dis- agree that the “ordinary meaning” of the statute re- quires the adoption of the rule espoused in Hamker. The language “to be in violation of” is at least am- biguous, and our reading of the statute as a whole and 16a its legislative history lead us to interpret that language as permitting citizen suits for violations occurring soiely in the past. In addition, we find the reliance by the Hamker court, and by the defendant in the case bejore us, on the Su- preme Court’s opinion in Middlesex to be misplaced. The issue in Middlesex was whether the Clean Water Act, with its “elaborate enforcement provisions,” 453 at 13, authorized an implied private cause of action for damages as well. The Court held that it did not. Court, in fact, acknowledged the availability of civil penalties under the Act. Jd. at 14 n.25. ™ Gwaltney’s reliance on City of Evansville v. Kentucky Liquid Recycling, 604 F.2d 1008 (7 Cir. 1979), cert. demed, 444 ; (1980), is similarly flawed, as the issue in that case also was also Illinois v. Outboard Marine Corp., 619 F.2d 623, 631 (7 Cir. 1980), vacated and remanded, 453 U.S. 917 (1981), on remand, Corp., 21 Env't Rep. Cas. (BNA) 1390, 1398 (D.R.I. 1984) (citing City of Evansville). 17a If section 1365 were interpreted as permitting citi- suits for civil penalties for past violations, all be zen state damage claims which could brought under could power Gibbs, 383 U.S. 715, 726 (1966) (“It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.”) In the case of the Clean Water Act, under which it was the intent of ; | | : the lure of obtaining damages in federal avoid the “floodgates” problem envisioned by the Hamker court. In sum, we hold that citizen suits like the one at bar, seeking civil penalties for permit violations committed entirely in the past, are permitted under section 505(a). Gwaltney has not asserted, and indeed could not assert, given section 505(a)’s express provision for “appropriate civil penalties under section [309(a), 33 U.S.C. § 1319 18a (d)),” that civil penalties may never be assessed in a citizen suit. However, the narrow reading of 505(a) that it urges, creating jurisdiction to such penalties only in suits involving violations that con- tinue up to the time suit is filed, places limitation on the use of citizen suits and as a toul of enforcement and deterrence. B. Gwaltney’s Violations of Monthly Average Limitations 28 3 33 U.S.C. § 1319(d) for exceeding a monthly average limita- File HARM Heise Hi i ie i ih Hash iti a ie I pies Hata it it iy MERU ppiiig tte by , iH: RADY bun au ae ure un HITE HUB ; HAE bE a2 |*2085 HH Hie aT. Dae ce ae iUtiagtt i | 2la maximum penalty), even though it never once exceeded its daily maximum.” The seeming unfairness of the situation in Gwaltney’s hypothetical dissipates when one recalls that § 1319(d) serves only to set a maximum penalty. Within this limit, the district court in its discretion may set an “appropri- ate” penalty. A district court, applying the approach to penalty assessment that we adopt, could (and indeed should, all else being equal) impose a substantially - 17 This hypothetical was advanced by Gwaltney in the district court. The district court attacked Gwaltney’s use of this hypo- thetical as an attempt to suggest that environmental damage is caused, and penalties therefore appropriate, only for violations of daily limitations. As the district court noted, 611 F. Supp. at 1553, this suggestion ignores the concept that both large, isolated dis- charges and moderate, long-term discharges are potentially harmful. This is presumably why NPDES permits like Gwaltney’s contain monthly average limitations that are substantially lower than the daily limitations. In its brief on appeal, Gwaltney presents a slightly different hypothetical, tied somewhat more closely to the realities of this case: A polluter calculates its monthly average on the basis of six monthly samples. On five of the six sample days, little or no effluent is discharged, and on the sixth, the discharge is so great that the monthly average limitation is exceeded for the month. There is thus on!y one identifiable day of excessive discharge; yet, the polluter is subject to a maximum penalty corresponding to thirty days of violation. Because it involves damage caused by a single event, rether than by continuous discharges, this hypothetical is not as vulnerable as the first to the district court’s criticism. On the other hand, EPA regulations provide for monthly average permit limits only for pollutants that are discharged continuously, 40 C.F.R. § 122.45 (d) (2), so that a polluter who discharges in a pattern like that posited in Gwaltney’s second hypothetical might not be subject to a monthly average limit in the first place. In any event, scenarios like Gwaltney’s second hypothetical do not require us to reject the district court’s approach to setting the maximum penalty. As dis- cussed in the text, while the court may set a large maximum penaity in such a case, it retains discretion to assess a penalty much smaller than the maximum, as the situation requires. 22a smaller penalty on Gwaltney’s hypothetical polluter than on either of the polluters in the first two hypotheticals discussed. Again, what is important is to adopt an approach that will give district courts the continuity of possibilities necessary for them to assess appropriate sanctions in every case. The district court’s approach achieves this end. C. Amount of Penalty Gwaltney contends that, in a number of ways, the dis- trict court abused its discretion and exceeded its statu- tory authority in establishing the amount of the penalty in this case. First, Gwaltney argues that, in assessing a part of the penalty, the court impermissibly shifted the burden of proof to Gwaltney. The district court found that Gwalt- ney was responsible for thirteen violations of daily lim- itations occurring during months in which the monthly average limitation was not violated. Gwaltney’s DMR’s did not show on precisely which days the violations oc- curref=they could conceivably have occurred on as few as seven days. See 611 F. Supp. at 1556 & n.15. The court presumed that they occurred on thirteen separate days, leaving it to Gwaltney to demonstrate through records solely within its control, that there was some “overlap” “ of violations, thus reducing the total number of days of violation. Because Gwaltney failed to come forward with evidence showing overlapping violations, the district court relied on the presumption that thirteen separate daily violations had occurred. * The question of “overlap” is only pertinent in light of the district court’s holding that $10,000 is the maximum penalty per day regardless of how many different violations occurred on that day. The parties have not raised this issue on appeal. See supra note 8. 23a We find no infirmity in the district court’s approach. Plaintiffs, by showing that thirteen violations of daily maximums had occurred, had in essence established a prima facie case of thirteen daily violations. Requiring Gwaltney to come forward with some evidence to rebut this is not impermissible, particularly where, as here, such information would appear to be peculiarly within the knowledge of Gwaltney. See Campbell v. United States, 365 U.S. 85, 96 (1961) (“The ordinary rule, based on notions of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.”) (quoting United States v. New York, N.H. & H.R.R., 355 U.S. 253, 256 n.5 (1957)). Moreover, by requiring permit holders to monitor their discharges and report them through DMR’s, 33 U.S.C. § 1318(a) (3) (A); 40 C.F.R. § 122.41(1) (4), the Act itself places on the permit-holder a burden of showing compliance with the permit’s limitations. In addition, as we have stressed repeatedly, deciding the number of days of violation is relevant only in determin- ing the maximum allowable penalty, and the district court is not obliged to assess the entire maximum amount. For these reasons, the court’s requiring Gwaltney to show that the actual number of days of vivlation was less than the thirteen violations that appeared on the face of its DMR’s, does not require a reassessment of the penalty imposed. Gwaltney’s remaining contentions regarding the penalty assessed require little discussion. As noted above, the district court and the parties agreed that in assessing penalties the court would use the EPA’s Civil Penalty Policy, 41 Env’t Rep. (BNA) 2991 (Feb. 16, 1984), as a guideline. Gwaltney now com- plains that in adjusting the penalty to reflect the “grav- ity” of Gwaltney’s violations, the court exceeded the percentage increase recommended by the EPA policy. The EPA policy, however, is an internal document for 24a agency guidance, and is not binding on the district court. The court agreed only to use the policy as a guideline, see 611 F. Supp. at 1556, and is not limited strictly by its terms in imposing an “appropriate” civil penalty. 33 U.S.C. § 1365 (a). Next, Gwaltney contends that the district court abused its discretion by assessing a penalty that failed to further the goal, espoused in the EPA Civil Penalty Policy, of “fair and equitable treatment of the regulated com- munity.” Specifically, Gwaltney complains that the pen- alty assessed is much greater than those assessed in a handful of “similar” cases decided five or more years prior to this one. We do not undertake a detailed com- parison of this and prior cases in order to determine the propriety of the penalty assessed below. Each case must “stand on its own merits, and here the district court ap- plied the agreed upon guidelines in a thorough, thought- ful, and rational manner. We do not view the outcome thus reached as arbitrary or an abuse of discretion. Gwaltney also complains that the district court abused its discretion when, in adjusting the penalty to account for delays in compliance, it assessed a penalty for each day of unjustified delay, regardless of whether a viola- tion actually occurred on each of those days. Because 33 U.S.C. § 1819(d) speaks in terms of penalties per day of violation, Gwaltney contends that the court erred in im- posing penalties for days on which no violation occurred, and that its penalty should be reduced accordingly. We disagree. The Act speaks in terms of days of violation only for the purpose of establishing the maximum penalty assessable. Jd. The district court properly considered Gwaltney’s days of violation in setting a maximum pen- alty of $6.66 million for 666 days of violation. Within that framework the court was permitted, in its discre- tion, to craft an “appropriate” penalty. Jd. § 1365(a). This the court also did when, pursuant to the EPA Civil Penalty Policy, it penalized Gwaltney for unexcused de- lays in improving its effluent treatment systems. We see no abuse of discretion in the district court | such a suit. We hold also that for the purpose of fixing an “ap- propriate” civil penalty which, pursuant to 33 U.S.C. § 1319(d), may be fixed at a maximum of $10,000 per proach in setting Gwaltney’s maximum penalty, and did not abuse its diseretion in calculating the penalty actu- ally assessed against Gwaltney. AFFIRMED. 26a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R GWALTNEY OF SMITHFIELD, LTp., Defendant. [Filed June 26, 1985] MEMORANDUM Water Act, 33 U.S.C. §§ 1251 et seg. (the “Act”). The Court has already determined, in granting plaintiffs’ motion for partial summary judgment on the issue of liability, that defendant has violated the Act; the parties — do not now contest liability. They do, however, differ over (i) defendant’s maximum liability for its violations and (ii) the appropriate penalty for those violations. Plaintiffs contend that defendant is subject to a maxi- mum of $8,300,000 in civil penalties, and that the full measure of liability should be imposed. Defendant, on the other hand, contends that it is subject to a maximum Plaintiffs filed a short response, also had filed a trial memorandum on the day prior to trial. Several months later, defendant filed a motion to dismiss based on its BACKGROUND This suit is a citizen enforcement action—a “citizen suit”—authorized by Section 505 of the Clean Water Act, 33 U.S.C. § 1365. Plaintiffs are two non-profit cor- porations dedicated to protecting natural resources: the From October 27, 1981 until May 15, 1984, Gwaltney’s plant exceeded its discharge limitation for a variety of pollutants* on a number of occasions._ Gwaltney itself toring ports (DMRs), as required by law.’ Prior to October 27, 1981, Gwaltney was not responsible for the pollution dis- that it was aware of ITT-Gwaltney’s record of non- compliance. Only the violations subsequent to Gwaltney’s assumption of responsibility on October 27, 1981, are at issue here, however. * NPDES Permit No. VA 0002844. * Those pollutants are: (i) feeal coliform: (4) chlorine (Ci,) ; (ili) total suspende! solids (TSS); (iv) total Kjeldah! nitrogen (TKN) ; and (v) ofl and grease. * Section 1318(a)(3)(A) of Title 33 mandates, among other things, that the Administrator of the Environmental Protection Agency “require the owner or operator of any point source” to and : 7 | . gust 2239983929829 £54573 ie PTE Agu 3 = ¢ - ef — HAP a5) lt aa 2 cadagd $2,828) ,98533! sf patsy Hee Pins Heaeeeeelae ed UNG Tabata 1: iy i: fay Hit a2ierh! ge! id | fi jiaaerill 30a 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 (1972). See, e.g. Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2d Cir. 1984). An organizational plaintiff, such as CBF or NRDC, can establish “injury in fact” through injury to their members as weil as through injury to the organiza- tion itself. See, e.g., Sierra Club v. Morton, 405 U.S. at 739. The parties do not dispute these basic principles of standing. The Court need not consider the dispute over whether plaintiffs have established standing to sue in their own right, because it concludes that they have established standing to sue on behalf of their members. They estab- lished such standing when the Court granted their motion for summary judgment on the issue of liability. In sup- port of that motion, plaintiffs included an affidavit of one of their counsel stating: Members of CBF. reside in Virginia, in the vicinity of the Pagan River, and recreate in, on, or near, and otherwise use or enjoy the Pagan River and the water system of which it is a part... . The interests of CBF and of CBF’s members have been, are being, and will be adversely affected by [Gwaltney’s} fail- ure to comply with its NPDES permit requirements. The affidavit included an identical paragraph about mem- bers of NRDC. Defendant failed to dispute this in any * Standing requirements may be more lenient for citizen enforcers suing under the citizen suit provisions of other environmental statutes, where-—unlike the Clean Water Act § 505(g¢), 33 U.S.C § 1365(g)—there is no limitation of “citizen” to a person “having an interest which is or may be adversely affected.” See, ¢.g., Clean Air Act § 304(a), 42 U.S.C. § 7604(a) (1982) (“any person” can sue); Metropolitan Washington Coalition for Clean Air v. Wash- ington, D.C., 611 F.2d 809, 814 (D.C. Cir. 19756) (discussing stand- ing requirements under the Clean Air Act). aaayngy Teepgy WEEN y ft ER BALI AED i Hii a rithe at geeshF. 228s Ht ci HET vi asnttl He PUR bunt BRUEG he iil i shai = ee isis3 TEES be + EF z & “yd E: gt tee 2s $= = ik Higied feet ipeeda a ih sian itt ja astald a Lee TT RR ai 43 S23 5°8535 +4 aj : 7 attttat He ital ih ih i alee uit Mi Be id it . Ht i fle} tiles is! a iF aL a a lin iit berdaal Hill fifa HHI tT HH ti ; | 1 i ie Ht re chip init ae at Lh of the Pagan River. ment clearly supports Gwaltney’s position. Other courts besides one have perceived ambiguity in the statutory language a issue. See Student Public Incerest Research Group of New Jersey, Ine .v. Monsanto Co., 600 F. Supp. 1474, 1476, (D.N.J. 1985); Sierra Club ». Raytheon, 22 Env. Rep. Cases 1050, 1064 (D. Mass. 1984). The words “to be in violation” may reasonably be read as compre hending unlawful conduct that occurred solely prior to to the filing of the lawsuit as well as unlawful conduct that continues into the present. For example, a person who under-pays taxes one year remains “in violation” of the relevant tax laws, even though that person pays ~ the proper amount of taxes for the following year. Simi- larly, a polluter that exceeds various discharge limita- tions in its NPDES permit, such as Gwaltney, arguably remains “in violation” with respect to those excesses, even though in subsequent years it brings itself into com- pliance. Indeed, its discharge violations remain on the records, and the effects of the excess discharges may The district courts shall have jurisdiction .. . to apply any appropriate civil penalties under (33 US.C. § 1319/4) }. 33 U.S.C. §1365/a). Section 1319/d) authorizes civil penalties “not to exceed $10,000 per day of . . . viola- tion.” 33 U.S.C. § 1319/d). Neither Section 1319/d) nor the citizen-suit provision itself expressly limits the im- position of such civil penalties to polluters that persist their unlawful conduct up to the time the filed. On the contrary, the absence of any tion implies that Congress intended to In view of the ambiguity the statutory language, however, the Court has also reviewed relevant portions do not discuss any requirement that such suits must be based on unlawful conduct occurring at the time the suit See H.Rep. No. 911, 92d Cong., 2d Sess. 133 (1972), reprinted in 1 A Legislative History of the context of acknowledging the general availability of civil penalties—implies that such a requirement was never contemplated. The legislative history provides direct support, as well as support by implication, for the view that the Clean Water 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. Senator Muskie, the manager in the Senate of the bill that added the citizen suit provision to the Act, stated: _. . a citizen has a right under Section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, im violation, whether the violation be a continuous one, or an occasional or sporadic one. See 118 Cong. Rec. 33,700, reprinted in 1 Legislative History at 179 (emphasis added). Gwaltney acknowl- edges that Senator Muskie’s remark supports plaintiff's position and undermines its own. But it attempts to ellminate the force of his explication by noting that it is the remark of only an individual legislator. To be sure, a court cannot allow colloquies among legislators to materially alter clear statutory language. See, ¢.g., Regan v. Wald, —— US. , , 52 U.S.L.W. 4966, 4970 (1984). But such is not the case here. Rather, Senator Muskie’s remark lends further support to a plausible reading—and one which is uncontradicted by the statute itself and other legislative materials '"—of ambiguous statutory language. 7 Gwaltney also quotes # remark of Senater Bayh in support of its position. Senator Bayh’s remark is s follows: These sorts of citizen suits—in which a citizen can obtain an injunction but cannot obtain money damages for himself—are a very useful additional tool in enforcing environmental pro- tection laws. 1 Legislative History at 221. Gwaltney argues that the fact that Senator Bayh did not mention civil penalties—and did mention injunctive relief—somehow indicates that Senator Muskie’s expli- cation was an inadvertent misstatement. The Court disagrees. Senator Bayh’s statement hardly contradicts Senator Muskie’s expheation. It is, rather, an accurate statement of a citizen- enforcer’s remedies under the Clean Water Act with respect to injunctions and money damages—and simply does not address the circumstances when a citizen suit for civil penalties may be maintained. Gwaltney also calls attention to occasional references in the legislative history to “abatement” actions. See S.Rep. No. 414, 92d Cong., ist Sess. 79-82, reprinted in 2 Legislative History at 1497-1500. Such references, however, do not persuade the Court that abatement of continuing unlawful conduct was the only avenue of relief Congress contemplated when it authorized citizen suits under the Act. See Student Public Interest Research Group of New Jersey v. Monsanto Co., 600 F. Supp. 1474, 1476 (D.NJ. 1985). 87a A reading of the citizen-suit provision that would au- thorize suits for civil penalties against polluters for past unlawful conduct regardless of their compliance status when the suit is filed is also consistent with one of the primary policy objectives inherent in the concept of citi- zen suits: deterrence of violations. Indeed, unless citi- zens may sue for civil penalties in such circumstances, citizen suits would provide little, if any, additional- in- centive for polluters to comply with their discharge limi- tations until a citizen suit is actually commenced. See also Monsanto, supra, 600 F. Supp. at 1476-77; Sierra Club v. Aluminwm Company of America, 585 F. Supp. 842, 854 (N.D.N.Y. 1984). If citizen suits under the Act were limited to situa- tions where the polluter is engaged in unlawful conduct when the suit is filed, the deterrence effect of citizen suits would also be undermined by the evidentiary dif- ficulties citizen enforcers would fact in establishing that a polluter is currently discharging unlawfully. As the Senate Report recognized, one of the keys to the success- ful functions of the Act’s citizen suit provision is dis- closure of a polluter’s discharge information. See S.Rep. No. 414, 92d Cong., 1st Sess. 81 (1971) reprinted in 2 Legislative History at 1499 (“The information and other disclosure provisions required throughout the bill are important to the operation of this provision.”). And, in- deed, Gwaltney’s DMRs form the basis of this lawsuit. But, as plaintiffs have pointed out, such reports are not available until at least a month—and sometimes more— after the discharge occurs. Gwaltney’s proffered con- struction of the Act would engage the litigants in dis- covery battles over whether a polluter is no longer dis- charging unlawfully; and it would engage the courts in a search for standards to apply in determining whether a polluter’s conduct can fairly be viewed as continuing in violation. See Hamker v. Diamond Shamrock Chemi- cal Co., 756 F.2d 392, 399 (5th Cir. 1985) (Williams, 38a J., concurring) (attempting to define what constitutes “in violation”); Friends of the Earth v. Facet Enter- prises, Inc., 22 Env. Rep. Cases 1143, 1145 n. 1 (W.D.N.Y. 1984) (“... it is difficult for a plaintiff to verify that a violation is occurring at the very time that. plaintiff is filing a notice of intent to sue... . I am not prepared to draw a line that Congress has not drawn, defining the point at which violations are sufficiently “recent” to form the basis for a citizen suit. To my mind, that line has been drawn already [by the relevant statute of limitations].”) Such a situation would also be contrary to Congress’s understanding that citizen suits involve “manageable and precise benchmarks for enforcement.” S.Rep. No. 92-414, Ist Sess. 81 (1971), reprinted in 2 Legislative History at 1499.* ®The problem of determining whether a violation is a “con- tinuing” one is highlighted well in this case. Plaintiffs filed this suit in mid-June of 1984. With a history of violations of its TKN limitations in the wintertime, Gwaltney had just experienced another winter of repeated violations of its TKN limitations, despite the changes it had implemented in its wastewater treatment system to address the problem. At the time of trial in December of 1984, one of Gwaltney’s own witnesses—Mr. Sneed—expressed doubt as to whether Gwaltney would meet its TKN limitations. It was not until Gwaltney had experienced a full winter without problems that it could make its motion to dismiss based on its present compliance, with a secure belief that it was indeed in compliance. Thus, plaintiffs’ allegation in the complaint, that Gwaltney was continuing to violate its NPDES permit when plain- tiffs filed suit appears to have been made fully in good faith. On these facts, the Court believes that even if Gwaltney were correct that a district court has no jurisdiction over citizen suits based entirely on unlawful conduct that occurred entirely in the past, the Court would still have jurisdiction here. A useful analogy is the manner in which the federal courts treat the jurisdictional amount requirement in diversity cases. Gwaltney has raised this analogy in support of its position that the Court is without jurisdiction here. The Court disagrees, and concludes that the analogy supports the position that it does have jurisdiction here. In diversity cases, the question whether the jurisdictional amount is satisfied—and whether the court, ultimately, has jurisdiction—is Gwaltney is not, however, without authority for its position. It relies heavily on Hamker v. Diamond Sham- rock Chemical Co., 756 F.2d 392 (5th Cir. 1985). In that case, the Court of Appeals for the Fifth Circuit held that a person cannot maintian a citizen suit under the Clean Water Act unless the polluter’s conduct is unlaw- ful at the time the suit is filed, and cannot be brought First, the Court notes that the panel concluded the statutory language is not sufficiently ambiguous to any question about its proper meaning. See id. at statutory scheme centers primary enforcement respon- sibility with the states and the Administrator of EPA, citizens are not authorized to citizens must first notify the and the alleged polluter and public enforcement authorities the opportunity to before proceeding. See 38 U.S.C. § 1365(b) (1) (A). H | Z z 7 ¢ E 4 z 74 i z | 3 ment authorities—of its intent to sue, the statu templates that a citizen loses the right to lator brings itself into compliance before elapses, just as the citizen loses the right governmental authorities commence prosecu before sixty days elapses. /d. at 396. This reasoni is unpersuasive. The statute expressly provides that pu citizen suit, see 33 U.S.C. § 1865(b) (1) (B), but does not anywhere state that the violator’s compliance within the sixty-day period deprives a citizen of the right to sue. It thus appears inappropriate to infer that compliance soks ries egies 7 ® Hh HHT 1 Hen 1 fat sie iit a lp + aL eee brit bel Pr t ut + iH dytlisa ti Hit wit Hi th atalintiplit ii ue Heese | ya 42a Gwaltney also relies on City of Evansville, Indiana v. Kentucky Liquid Recycling, 604 F.2d 1008 (7th Cir. 1979), cert. denied sub nom Louisviie and Jefferson County Metropolitan Sewer District v. City of Evans- ville, Indiana, 444 U.S. 1025 (1980). In that case, the Court of Appeals for the Seventh Circuit remarked that the Clean Water Act “does not provide for suits against parties alleged to have violated an effluent standard or limitation in the past or for recovery of damages.” /d. at 1014. That remark, however, insofar as it can be said to address citizens for civil penalties for past violations, is only dicta. The issue in the case was whether citizen suits may be brought for damages. The panel did not at all analyze whether the statute authorizes citizen suits for civil penalties for past violations."° The case of Paw- tuxet Cove Marina v. Ciba-Geigy Corp., 21 Env. Rep. Cases 1393 (D.R.I. 1984), which Gwaltney also cites, relics primarily on City of Evansville to reach its con- clusion. See id. at 1394 (referring to cases cited in magistrate’s decision, 21 Env. Rep. Cases 1390, 1391). Accordingly, the Court does not find the case to be per- suasive. Finally, Gwaltney relies on Middlesex County Sewer- age Authority v. National Sea Clammers Association, 453 U.S. 1 (1981). Gwaltney focuses on Justice Powell’s 1© Plaintiffs argue that a case decided by the Court of Appeals for the Seventh Circuit subsequent to City of Evansville implicitly rejects the position with respect to citizen suits based on past vio- lations that City of Evansville took. That case, People of the State of Illinois v. Outboard Marine Corporation, Inc., 680 F.2d 473 (7th Cir. 1982), is not as on point as plaintiffs argue. The case does reflect the understanding that the United States can sue under the Clean Water Act for injunctive and other relief based on past discharges, regardless of a polluter’s present compliance. See id. at 480-81. It also reflects the understandiz¢ that citizens may intervene in such cases. Jd. at 480. It simply does not address the question whether citizens themselves can sue for civil penalties based on a polluter’s unlawful conduct, that occurred entirely in the past, however. 43a observation that “this provision allows suits under the Act by private citizens, but authorizes only prospective relief... .” Id. at 6. This observation, however, like the semark of the Seventh Circuit in City of Evansville, arose in the context of whether a citizen enforcer may sue for damages. The Supreme Court, like the Seventh Circuit, concluded that one may not. Later in the opinion it did recognize that civil penalties are authorized in citizens suits. See id. at 14 n. 25. It had no occasion to consider or remark about whether a citizen enforcer may sue a polluter for civil penalties based on past violations. III. Maximum Luwbility. The number of days during which a polluter violates a limitation in its permit sets the polluter’s maximum lia- bility in civil penalties for violating that limitation. The subsection of the Clean Water Act authorizing civil pen- alties states that a polluter in violation of, among other things, permit limitations such as those forming the basis of this suit “shall be subject to a civil penalty not to exceed $10,000 per day of such violation.” 33 U.S.C. §$ 1319(d). Determining the number of days involved in a given violation is thus an important aspect of assessing civil penalties. Determining whether, and in what cir- cumstances, a polluter can be subjected to a penalty of greater than $10,000 per day for permit violations is also important. The parties dispute the law on both points. A. Number of days involved for violating a monthly average. Gwa'tuey has violated its “monthly average” permit limitations for several substances on a number of occasions. The “monthly average” of a substance re- flects the averege amount (or concentration, where the -ubstance is measured by concentration instead of by amount) of the substance discharged per day, based on an average of measurements taken for that substance over the course of a month. The monthly average for the pollutants at issue in this case is roughly half of the eens 44a maximum daily amount allowed.’ Gwaltney argues that a violation of a monthly average constitutes a single day of violation. Plaintiffs, on the other hand, maintain that a violation of a monthly average constitutes thirty days of violation. As discussed above, the relevant section of the Clean Water Act authorizing eivil penalties reads that: “any person who violates . . . any permit condition or limita- vn... Shall be subject to a civil penalty not to exceed $10,000 per day of such violation.” 33 U.S.C. § 1319(d). Thus, to determine the maximum authorized penalty for the violation of a monthly limitation, the Court must consider how many days are involved in such a violation. It is difficult for this Court to imagine how the violation of a monthly limitation involves any number of days other than the number of days in that month. Vio.ating a monthly limitation, then, subjects a polluter to a maxi- mum penalty of $300,000. Similarly, a violation of a weekly limitation would, it seems, necessarily involve seven days. At least one other district court has reached the same conclusion. See United States v. Amoco, 580 F.Supp. 1042, 1045 (W.D. Mo. 1984). Although it cites neither cases nor legislative history in support of its position, Gwaltney contends that this con- clusion is nevertheless wrong primarily because it be- 11 The average and maximum permit limitations for four of the pollutants at issue in this case read as fol'ows on Gwaltney’s DMR for May, 1984: (i) for TSS: 228.000 KG/D (daily average over a month), 455.000 KG/D (daily maximum); (ii) for fecal coliform: 200.0000 N/CML (daily average over a month), 400.000 N/CML (daily maximum); (iii) for TKN: 109.0000 KG/D (daily average over a month), 219.0000 KG/D (daily maximum); (iv) for oil and grease: 78.0000 KG/D (daily average over a month), 156.0000 KG/D (daily maximum). For chlorine, (Cl,), there was no average limitation: rather, a daily minimum (1.5000 MG/L) and maximum (2.5000 MG/L) were set. 45a lieves it can be unjust.” To illustrate its point, Gwaltney suggests a hypothetical: a polluter discharges, for twenty- nine days of a month, 98% of the amount that it must average each day in order to meet its monthly average; on the last day, however, the polluter discharges 180% of that amount. Because of the last day’s discharge, the polluter would violate its monthly average; yet, if its permit allowed a daily maximum twice as great as the monthly average (as Gwaltney’s does), the polluter would not have violated its daily maximum for the substance at all during the entire month. In Gwaltney’s view, sub- jecting the polluter to thirty days’ liability because of the monthly violation is unjust, especially in light of the fact that the polluter never exceeded its daily maximum. 12 Gwaltney raises two other arguments against treating the vio- lation of a monthly limitation as a thirty-day violation. First, Gwaltney contends that to characterize a violation of a monthly limitation as thirty days of violation is contrary to the principle that penal statutes are to be construed strictly. See, é.g., Commissioner of Internal Revenue v. Archer, 361 U.S. 87, 91 (1959). Adhering to this proposition does not affect the Court’s conclusion. The words of the statute authorize a penalty of up to $10,000 “per day of such violation.” Because a violation of a monthly limitation necessarily involves a violation over an entire month, a maximum penalty of $10,000 per day of the month is plainly within the words of the statute and therefore does not violate any principal of strict construction. Second, Gwaltney argues that one of the stipulations, in con- junction with the plaintiffs’ response to an interrogatory, precludes plaintiffs from arguing that Gwaltney’s violation of a monthly limitation subjects Gwaltney to a penalty for every day of the month. The parties stipulated that 160 violations had occurred, and plaintiffs had indicated in response to an interrogatory that “the total dollar amount of civil penalties” they would seek would be “$10,000 per violation.” Some of the violations that were stipu- lated were, of course, violations of monthly limitations. Gwaltney is correct that plaintiffs now take a position on penalties that is technically inconsistent with their interrogatory response because they said “$10,000 per violation” instead of “$10,000 per day of each violation.” But such an event, parties’ responses to interrogatories do not preclude this Court from imposing appropriate penalties. 46a The Court disagrees. Part of Gwaltney’s argument is based on the suggestion that no real harm is being done where maximum daily limitations are not violated. But the mere fact that a daily maximum is not violated does not mean that the polluter’s discharges are harmless. Daily maximums for the pollutants at issue are no doubt more lenient than the monthly average because the en- vironment may be able to absorb a relatively high dis- charge in a single day without incident—while a sub- stantially lower discharge over the course of a month may present an environmental problem. In any event, the water pollution authorities have established the al- lowable discharge levels for various time intervals in order to ensure that water quality standards are met. It is not for the district court to decide, in a citizen suit proceeding, that a permit limitation an agency has fixed is unnecessary. Another part of Gwaltney’s argument is based on the fact that only on one day did its hypothetical polluter exceed the amount that it needed to maintain each day in order to meet the month’s average. But this too is unpersuasive. The average is based on discharges over the entire month. When a polluter violates a monthly average, every day of its discharges contributes to the violation, even if most of the discharges are within the average that the polluter needs to maintain in order to stay within the monthly limitation." 13 Gwaltney also suggests that its violations of a monthly average cannot be presumed to be a violation during every day of the month, because the average may be computed based on measure- ments taken less frequently than every day. The Court recognizes that Gwaltney’s permit requires it to monitor many of its dis- charges only three days per week, rather than every day. But even though those periodic tests do not establish with absolute certainty that Gwaltney’s actual monthly average exceeded the permitted amount, it is nevertheless reasonable to presume that they do establish such a monthly violation—especially in light of Gwaltney’s failure to introduce more accurate evidence to the contrary. 47a The problem with Gwaltney’s position is further il- lustrated when one considers a counter-hypothetical: the polluter nearly exceeds—but does not pass—its daily maximum every day of a month. Such a polluter would far exceed the monthly average, and would be liable for violating that limitation. But Gwaltney’s position, if adopted, would constrain a court to treat such conduct as one single day of violation, thereby preventing a court from imposing over $10,000 in penalties for a full month of substantial discharges. Such a limitation does not strike this Court as a sensible one, much less as con- sistent with the statute. Ultimately, the district court has discretion to deter- mine the appropriate penalty under Section 1319(d) for a day of violation. As the district court noted in Amoco, merely because a polluter is subject to $300,000 in penal- ties for violating a monthly standard does not necessarily mean that those penalties will be imposed. See Amoco, supra, 580 F. Supp. at 1045. The $300,000 is a maxi- mum penalty under the statute, not a mandatory one. See 33 U.S.C. § 1319(d). Thus, the district court can consider any appropriate factors in arriving at a penalty. But it ought not to have its hands tied, when crafting a penalty for a violation of a monthly limitation, by a $10,000 limit. B. Maximum penalty per day where multiple viola- tions occur within a day. In some instances, Gwaltney violated discharge limitations for several substances on the same day. Gwaltney argues that the Clean Water Act limits its liability to $10,000 per day, regardless of the number of its violations on a given day. Plaintiffs, on the other hand, argue that the Act only limits a per- mittee’s liability to $10,000 per day per violation of the discharge limitations on a given substance. The relevant statutory provision states that: Any person who violates . . . any permit condition or limitation [implementing any of several enumer- 48a ated section of the Clean Water Act, in a permit such as Gwaltney’s NPDES permit] . . . shall be subject to a civil penalty not to exceed $10,000 per day of such violation. 33 U.S.C. §1319(d). There is no question here that Gwaltney’s NPDES permit is a type of permit encom- passed under this subsection. Nor is there any question that all of the limitations at issue in Gwaltney’s permit are limitations implementing sections of the Clean Water Act enumerated in Section 1319(d). The parties merely dispute the proper construction of the phrase “$10,000 per day of such violation.” Gwaltney relies on United States v. Detrex Chemical Industries, Inc., 393 F. Supp. 735 (N.D. Ohio 1975). In that case, the district court rejected the view that 33 U.S.C. § 1319(d) can be read to authorize “$10,000 per violation per day.” Jd. at 738. The district court first concluded that the statutory language is ambiguous. See id. at 736. It next reviewed the legislative history and found references to the Act’s authorizing penalties up to “$10,000 per day” and “$10,000 per day of violation,” without any use of the words “of such violation.” See id. at 737. It also concluded that $10,000 per day as an absolute maximu!: provides an adequate deterrent, and is consistent with other provisions of the Clean Water Act. See id. at 736-37. Plaintiffs suggest that the appropriate reading of Sec- tion 1319(d)—and what the Detrex court intended— was that Section 1319(d) establishes a maximum daily pen- alty of $10,000 for violating the limitations on any given substance, not an absolute daily maximum. For example, if a polluter violates its limitations for fecal coliform as well as for TKN on the same day, it is subject to a maximum civil penalty of $20,000, not $10,000. On the other hand, if the polluter violates two different limita- tions—such as the monthly average and the daily maxi- mum—for TKN only, on a given day, it is subject to no 49a more than $10,000 in civil penalties for that day of viola- tion. They rely on dicta in a recent district court case, United States v. Amoco Oil Co., 580 F. Supp. 1042, 1046-47 n.1 (W.D. Mo. 1984) to support their belief that the Detrex holding can be harmonized with this construction of Sec- tion 1319(d), and that this construction is indeed the correct one. In Amoco, the district judge remarked that “a good argument can be made for the idea that viola- tions of the daily limit for two or more different effluents should be subjected to separate penalties.” Jd. at 1047 n.1 (emphasis original). The Court does not believe that Detrex can be har- monized with the plaintiffs’ and the Amoco court’s con- struction of Section 1319(d). Indeed, the district judge in Amoco acknowledged that “there are indications” that Detrex cannot be harmonized with his own (and plain- tiffs’) proffered construction. Amoco, supra, 580 F. Supp. at 1047 n.1. In order to harmonize the two, plaintiffs correctly point out that the reported opinion in Detrex does not indicate whether the multiple violations per day that were at issue involved the same substance or differ- ent ones. They suggest that the “multiple per day viola- tions” that the case addressed may have involved re- peated violations on the same day of an hourly limitation for a single substance. This may be true, of course. But whether or not the facts were as limited as plaintiffs suggest, the Detrex court clearly contemplated the issue in terms of an absolute maximum penalty per day, re- gardless of whether the limitations violated were for the same or different substances: . . . a $10,000 per day civil penalty, regardless of the number of violations of § 1311, 1312, 1316, 1317, or 1318 of Title 33 or of any permit condition or limitation or of any order of the E.P.A. more than adequately effectuates the Congressional purpose of a “real” threat of sanction. Detrex, supra, 393 F. Supp. at 738. 50a The Court concludes that the Detrex court’s construc- tion is the appropriate one. Section 1319(d) authorizes a maximum of $10,000 per day in civil penalties for violations that are enumerated therein, even where the defendant has violated discharge limitations for several substances during the same day. In view of the contrary suggestion in Amoco, it may be helpful to explain the Court’s reasoning further. As the Detrex court remarked, the statute itself is ambiguous. To elaborate on this, the words “$10,000 per day of such violation” may be read, as plaintiffs would suggest, to mean “$10,000 per day per each violation.” On the other hand, the words may also be read as indicating how the number of days for a maximum civil penalty of $10,000 can be imposed should be computed: that is, to clarify that the maximum civil penalty may be imposed for each day of an enumerated violation—rather than, for example, being limited to the day on which a violation is reported, or to the day on which the Administrator gives an order that the defendant violates, or to the days on which the defendant violates some provision of the Clean Water Act beside the enumerated ones. All of these alternate readings may have been at least arguable if the statute had ended with the words “$10,000 per day,” omitting the words “of such violation.” In view of the ambiguity in the statute itself, the Detrex court examined t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A02. Public record. Not legal advice.