Opposition Brief — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

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NO. 86-473 4) NOV 20 1986

- | JOSEPH F. SPANIOL, JR.

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, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

JETER M. WATSON*

ANN POWERS

CHESAPEAKE BAY FOUNDATION,

INC.

Suite 815, Heritage Bldg.

1001 East Main Street

Richmond, VA 23219

(804) 780-1392

Attorne for Respondent

Chesa a Bay Foundation,

*Counsel of Record a CT

ADDITIONAL COUNSEL LISTED ON BACK OF COVER

ae —

APPELLATE PRINTING SERVICES INC HERITAGE BLOG RICHMOND VA (804) 643-7789

JAMES THORNTON

NANCY MARKS

NATURAL RESOURCES DEFENSE COUNCIL,

INC.

122 East 42nd Street

New York, NY 10168

(212) 949-0049

Attorneys for Respondent

Natural Resources Defense Council,

Inc.

————————<«,

QUESTION PRESENTED

Whether the federal district courts

have jurisdiction under Section 505 of

the Clean Water Act, 33 U.S.C. 1365(a),

to entertain "citizen suits" seeking

civil penalties for chronic episodic

violations of the Act that occurred prior

to the filing of the suit.

PARTIES TO THE PROCEEDINGS

Respondents and plaintiffs-appellees

below are Chesapeake Bay Foundation, Inc.,

and Natural Resources Defense Council,

Inc. Chesapeake Bay Foundation, Inc.,

a tax-exempt corporation organized under

the laws of the State of Maryland, op-

erates state offices in Maryland, Penn-

sylvania, and Virginia, and has members

in all 50 states and the District of

Columbia. In Virginia, Chesapeake Bay

Foundation has two subsidiary chapters,

the Hampton Roads Chapter, comprised of

members residing in the Hampton Roads

area, and the York Chapter, comprised

of members residing in the vicinity of

the York River. Natural Resources De-

fense Council, Inc., is a not-for-profit

membership corporation organized under

the laws of the State of New York, with

offices in New York, Washington, D.C.,

and San Francisco, California. Peti-

tioner and defendant-appellant below

Gwaltney of Smithfield, Ltd. is a wholly-

owned subsidiary of Smithfield Foods, Inc.

iii

TABLE °F CONTENTS

QUESTIONS PRESENTED.

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW .

JURISDICTION .

STATUTE INVOLVED .

STATEMENT .

ARGUMENT .

CONCLUSION .

APPENDIX

Appendix A: Findings of

Fact and Conclusions of Law

as Stated from the Bench,

August 28, 1984 . :

TABLE OF AUTHORITIES

Cases

American Frozen Food Institute

v. Train,

Cir. 1976).

American Meat Institute v. EPA,

~ 526 F.2d 442 (7th Cir. 1975)

Bowen v. American Hospital

Association, 106 5. ct.

C!s. 5 6 6 ke

Chevron U.S.A. Inc. v. NRDC,

467 0.S. 837 (198 ss

4).

City of Evansville v. Kentuck

it uid Recycling, inc., BOLT

Fg 1008 TTth f= 1979),

cert. denied, 444 U.S. 1025

(1980) Sa a a oe ae 6 f

Connecticut Fund for the En-

vironment v. Job Platin

Co., 623 F. supp. 207 ‘ol Conn.

T5985).

E. I. duPont de Nemours & Co.

v. Train, 430 U.S. I12 (1977)

Hamker v. Diamond Shamrock

cal Co.,

(Sth Cir. 1985).

Page

passim

eee terminate

Page.

Hensley v. Eckerhart, 461 U.S.

G24 cE) .* @ © @ 8 ee @ « 43

Middlesex Count

thority v. Nat:

Sewerage Au-

Tonal Sea

ammers $ociation, 453

28-30

Pawtuxet Cove Marina Inc. v.

Ciba-Geigy Corp., 21 Env’t

Rep. Cas (ERAS 1393 (D.R.I.

1984) , 22 Env't Pep. Cas.

(BNA) 1999 (D.R.I. 1985),

oqvees pending, No. 86- 1227

st Cir.) ... 37,41

Sierra Club v. Copol r Rubber

& Chemical Corp. pee F. Supp.

I013 (M.D. La. 1985) appeal

pending, No. 85-3763 ~—

| eae ‘ « 35,42

Sierra Glub v. Monochem, Inc.,

appeal “pending. No. 85-3762.

. @ *» Saar : 34,35

etna Club v. Shell Oil Co.,

a. -

appeal “pending. No. 85-3753

Sierra ae v. Simkins Indus-

tries Upp.

1120 D. ona’ 1985) ; oe wo «6 aoa

Student Public interere Re-

Search Gro AT&T Belt

taborstories S17 F. Supp 16,19,

ITSO (H.W.Y. 1985) . . . . . 21,28,37

Page

St t Public Interest Re-

searc Vv. santo

Co., 600 F Supp. 1472

ee oe ek, 17

Train v. Colorado Public In-

terest searc r nc.,

. ; 22

United Mine Workers v. Gibbs, .

353 U.S. VIS T1966). » 6 « 4

United States v. American

rucking sociations, Inc., -

United States v. Detrex Chemical

- upp.

735 (WD. Ohio 1975) .... 19-20

Statutes and Regulations

Clean Water Act of 1977 (33

U.S.C. 1251 et seq.)

33 U.S.C. 1318(a). . ... 5

33 U.S.C. 1319(a)(1) .. . 17

33 U.S.C. 1319(a)(3) .. . 18

33. U.S.C. 1319(c). . ... 18

vii

a5 ADA GQaoacacacac

.C.

ANNNNnNNNnMN

AAaAANAaAaAAaAN

1319(d).

aaa

1342 (a) (1)

1342 (a) (2)

1365(a). ..

1365 (b) (1) (A).

1365 (d). ;

7604 .

-R. 122.41(1)(4) .

~R. 123.25(a) (12).

Legislative Material

118 Cong. Rec. 33700 (1972).

S. Rep.

92-414, 92d Cong.,

lst Sess. 64 (1971).

S. Rep.

99-50 99th Cong.,

lst Sess. 28 (1985).

Other Authority

Environmental Law Institute,

Citizen Suits:

Page

11,13,18

2.6.15, 30

An Analysis

O°

tizen Enforcement Under

nhistere tatutes

CGept.

EPA Civil Penalty Policy,

41 Env't Rep.

1984)

Laws) 2991 (1984).

Schwartz & Hackett,

Suits Against Private

(BNA) (Fed.

Citizen

In-

mder the Clean Water

Lawyer 327 (1984).

viii

atural Resources

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1986

No. 86-473

GWALTNEY OF SMITHFIELD, LTD.,

Petitioner,

Vv.

CHESAPEAKE BAY FOUNDATION, INC.,

and

NATURAL RESOURCES DEFENSE COUNCIL,

INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

a ‘STA A S

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals

(Pet. App. la-25a) is reported at 791

F.2d 304. The opinion of the district

court (Pet. App. 26a-74a) is reported

at 611 F. Supp. 1542.

JURISDICTION

The judgment of the court of appeals

(Pet. App. 75a-76a) was entered on May

22, 1986. A petition for rehearing was

denied on June 26, 1986 (Pet. App. 7/7a-

78a). The petition for a writ of cer-

tiorari was filed on September 23, 1986.

The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

Section 505(a) of the Clean Water

Act, 33 U.S.C. 1365(a), provides as

follows (emphasis added) :

Except as provided in sub-

section (b) of this section,

any citizen may commence a

civil action on his own be-

half--

(1) against any person (in-

cluding the te tates,

and (ii) any other governmental

instrumentality or agency to the

extent permitted by the eleventh

amendment to the Constitution)

= is — ed to be in violation

uent standard or

Tieteattane under this chapter or

(8) an order issued by the Ad-

ministrator or a State with res-

pect to such a standard or limi-

tation, or,

(2) against the Administrator

where there is alleged a failure

of the Administrator to perform

any act or duty under this chap-

ter which is not discretionary

with the Administrator.

The district courts shall have

urisdiction, thout regard to

the amount in controversy or the

citizenship of the parties, to

enforce such an effluent standard

or limitation, or such an order,

or to order the Administrator

to perform such an act or duty,

as the case may be, and to appl

any appropriate civil easlttes

a section 1319(d) of this

title.

STATEMENT

1. Pursuant to Section 402 of the

Clean Water Act, 33 U.S.C. 1342, peti-

tiomer possesses a permit to discharge

specified amounts of pollutants from

its meat packing plant into the Pagan

River, a tributary of the Chesapeake Bay

(Pet. App. 2a, 3a, 27a-28a; App., infra

4a). Petitioner exceeded the dis-

charge limitations in its permit on nu-

merous occasions between October 27,

198l--the date on which petitioner ac-

quired the meat packing plant and there-

by assumed responsibility for the plant's

discharges--and June 15, 1984--the date

on which respondents commenced this ac-

tion for declaratory and injunctive

The pollutants are fecal coli-

form, chlorine, total suspended solids,

total Kjeldahl nitrogen, and oil and

grease (Pet. App. San. 5).

relief and the imposition of civil pe-

nalties payable to the United States

Treasury.”

Monitoring Reports ("pMRs") 2 constitu-

Petitioner's own Discharge

ted the proof of its permit violations

(Id. at Sa).

2 In its Findings of Fact and Con-

clusions of Law as Stated from the Bench

(App., la-7a), the district

court snes a petitioner had exceeded

the discharge limitations contained in

its permit om at least 237 occasions

between January 1979 and June 15, 1984

(Id. at Sa). The court eee pane

agreed with petitioner's contention that

it should be relieved of liability for

violations that had occurred poser to

goscecener ¢ acquisition of the plant.

ereafter, the parties stipulated that

160 post-acquisition reported violations

had occurred (Pet. App. 45a n. 12). The

stipulation did not relate to the number

of "days of violation” involved.

; DMRs are required by the Clean

Water Act and regulations promulgated

thereunder. See 33 U.S.C. 1318(a),

1342(a)(1) and (2); 40 C.F.R. 122.41(1)

(4) amd 123.25(a) (12).

Respondents invoked the jurisdic-

tion of the district court pursuant to

Section 505(a) of the Clean Water Act,

33 U.S.C. 1365(a), which authorizes

“citizen suits" to be brought against

any person “who is alleged to be in

violation of (a) an effluent standard

or limitation under this chapter* * +”

Respondents complied with the statutory

prerequisites for an action under Section

505(a) by providing petitioner, the Ad-

ministrator of the United States Environ-

mental Protection Agency ("EPA"), and

the Virginia State Water Control Board

witn more than 60 days’ notice of their

intent to bring suit. See Section 505

(b) (1) (A) of the Act, 33 U.S.C. 1365(b)

(L)(A). Specifically, respondents gave

notice of their intent to sue on February

29, 1984 (See Pet. App. 80a). Peti-

tioner'’s permit violations, as reflected

by its subsequent DMRs, continued until

May 15, 1984, or some two-and-one-half

months after respondents gave notice of

their intent to sue (Id. at 4a-5a, 80a).

Respondents accordingly filed suit on

June 15, 1984, based on continuing per-

mit violations as shown on the DMRs

available at the time the complaint was

filed (Id. at 82a-83a). Not until after

the filing of the complaint were any

violation-free months reported by pe-

titioner.”

4 Petitioner would have the Court

believe that it was in general compliance

with its permit in March 1984, when the

Virginia State Water Control Board (to

which the authority to issue permits

under the Act has been delegated by EPA)

decided not to initiate an enforcement

action against petitioner in state court

(See Pet. 4-5 & n. 3). Im actuality,

the Board declined to initiate such an

action in March because a Gwaltney of-

ficial testified under oath that peti-

tioner was in compliance (Ct. App. Ex.

2. Om August 28, 1984, the district

court granted summary judgment for res-

pondents on the issue of liability, there

being no dispute that the permit viola-

tions had occurred (App., infra 6a).

The question of remedy was set for trial

in December, 1984.

On May 16, 1985, more than eight

months after the district court's ruling

(Footnote Continued)

Vol. 422-423). But petitioner continued

to violate its permit in March, and the

violations were not abated until May 15,

1984 (Id. at 314-323). A violation-free

month was not reported until the June

1984 DMR, which was filed after respon-

dents had initiated this action (Pet.

App. 86a). Contrary to the impression

it seeks to convey, therefore, petitioner

appears very much to have been the type

of chronic episodic violator who "inten-

tionally ‘turns off the spigot' just be-

fore a citizen brings a suit" (Pet. 7

n. 4 (quoting Hamker v. Diamond Sham-

rock Chemical Co., 756 F.

t r. (Williams, J., concur-

ring)).

wa .

—_ : 4

(ee Se ee

(

on liability and more than four months

after trial on the remedy, petitioner

moved to dismiss the action for lack of

jurisdiction. Petitioner relied on

Hamker v. Diamond Shamrock Chemical Co.,

756 F.2d 392 (Sth Cir. 1985), in which

the court held that Section 505 does not

authorize citizen suits for civil penal-

ties if the violations alleged in the

complaint are not “ongoing” at the time

of suit. Relying on the post-complaint

DMRs that reported no violations subse-

quent to May 15, 1984, petitioner con-

tended that it was not "in violation"

of its permit at the time this suit was

filed.

The district court rejected pe-

titioner's argument on two alternative

grounds (Pet. App. 33a-43a). First, the

court concluded that the words “to be

in violation,” as used in Section 505(a)

of the Act, “may reasonably be read as

comprehending unlawful conduct that oc-

curred solely prior to the filing of

the lawsuit as well as unlawful conduct

that continues into the present” (Id. at

34a). Alternatively, the court held

that respondents’ allegations in the

complaint of continuing violations were

made in complete good faith. The court

thus reasoned that, “even if [ petitioner!

were correct that a district court has

no jurisdiction over citizen suits based

entirely on unlawful conduct that oc-

curred entirely in the past, the Court

would still have jurisdiction here”

(Id. at 38a 1.8). The court analogized

to the jurisdictional amount requirement

in diversity cases, which is tested not

by the amount the plaintiff actually

recovers but by the amount stated in

good faith in the original claim (Id. at

38a-39a n.8). The allegations in res-

pondents' complaint satisfied the good

faith test, the court concluded, because

"there was no certainty here--legal,

factual, or otherwise--that petitioner's}

system would correct one of the two ma-

jor violation problems for which this

suit was brought--until nearly one year

after the suit was filed" (Id. at 39a

n.8).

The district court then determined

the maximum civil penalty for which pe-

sictonse could be held liable. The

court ruled that the maximum number of

days of liability for violations of

monthly averages contained in peti-

tioner's permit was the number of days

in the month, but that the maximum daily

penalty was limited by statute (33 U.S.

C. 1319(d)) to $10,000 per day, regard-

less of the number of violations in a

given day (Pet. App. 43a-5la). Applying

these principles, the court calculated

petitioner's maximum potential civil

penalty to be $6,660,000 (Id. at 5la-

53a). Using EPA's Civil Penalty Policy,

41 Env't Rep. Cas. (BNA) (Fed. Laws)

2991 (1984), as a nonbinding guideline

(Id. at 53a), the court then determined

that the appropriate penalty to be as-

sessed against petitioner was $1,285,322

(Id. at 7la). In setting the amount of

the penalty, the district court noted

that petitioner's response to specific

discharge problems at the plant "triv-

ialize (d] {their ] seriousness," was

“nothing less than offensive," "bor-

der led! on benign neglect," and contri-

buted to hundreds of days of violations

that, by petitioner's own admission,

could have been prevented (Id. at 59a

60a, 62a, 69a). The court also found

that petitioner had derived significant

economic benefit from its delays in

bringing the plant's biological treat-

ment system into compliance (Id. at

55a-58a, 66a-67a).

3. The court of appeals affirmed

the district court's judgment in all

respects (Pet. App. la-25a). Specifi-

cally, the court held: (1) that the

absence of an ongoing violation at the

time the complaint is filed does not

defeat federal jurisdiction under Sec-

tion 505(a) of the Clean Water Act in

an action for civil penalties (Pet. App.

7Ja-18a, 25a); (2) that, in setting an

"appropriate" civil penalty under 33

U.S.C. 1319(d), violations of "average"

limitations encompassing periods greater

ther one day are to be treated as a vio-

lation for each day of the time period

involved (Pet. App. 18a-22a, 25a); and

(3) that the district court did not abuse

its discretion in calculating the penal-

ty actually assessed against petitioner

(Id. at 22a-25a).? With respect to the

issue that petitioner asks this Court

to review, the court of appeals ruled

that petitioner's narrow reading of Sec-

tion 505(a), “creating jurisdiction to

impose [civil] penalties only in suits

involving violations that continue up

to the time suit is filed, places an

untenable limitation on the use of citi-

zen suits and civil penalties as a tool

of enforcement and deterrence" (Pet.

App. 18a).

> Petitioner has not asked this

Court to review the latter two issues.

ARGUMENT

The decision of the court of ap-

peals is correct, does not conflict with

any decision of this Court, and would

mot serve as an appropriate vehicle for

resolution of the conflict that peti-

tioner alleges between the decision be-

low and Hamker v. Diamond Shamrock Chem-

ical Co., 756 F.2d 392 (Sth Cir. 1985).

Accordingly, review by this Court is not

warranted.

l. a. Section 505(a) of the Clean

Water Act, 33 U.S.C. 1365(a), authorizes

citizen suits to be maintained against

any person "who is alleged to be in

violation of" various requirements

impesed under the Act. Petitioner con-

tends (Pet. 7-10) that Congress's use

of the present tense in the drafting of

this section so plainly forecloses citi-

zen suits founded on pre-complaint vio-

lations that further analysis is un-

necessary. However, as the courts below

correctly have held, petitioner's

reading of the statutory language is not

the only possible interpretation of the

words Congress chose. To the contrary,

as the district court below noted, "the

language is ambiguous" (Pet. App. 8a);

and as the court of appeals below stated,

"the words 'to be in violation' may

reasonably be read as comprehending un-

lawful conduct that occurred solely prior

to the filing of the lawsuit as well as

unlawful conduct that continues into

the present" (Id. at 34a). As another

court has explained (Student Public In-

terest Research Group v. AT&T Bell La-

boratories, 617 F. Supp. 1190, 1195

(D.N.J. 1985)):

"A plausible construction of the

language is that one is ‘in vio-

lation,’ and continues to be ‘in

violation’ by having ‘violated. '

In other words, the taint of a

past violation is continuing."

Student Public Interest Research

Group of New Jersey v. Monsanto

CO., . Supp. :

(D.N.J. 1985)* * *, It would not

be odd locution to say someone

is “in violation" of the tax

laws even though he or she filed

the fraudulent return two or

three years ago, or "in violation"

of election laws for failing to

report campaign contributions

received for a past campaign.

Similarly, a polluter might be

“in violation" of the [Clean

Water Act] for violations of two

or three years ago.

This construction of Section 505(a)

comports with the structure of the Act

as a whole. Virtually all of the Act's

enforcement provisions, including’ those

authorizing enforcement actions by EPA,

are written in the present tense. See,

e.g., Section 309(a)(1), 33 U.S.C. 1319

(a)(1) (emphasis added) (the Administra-

tor is authorized to take enforcement

| SI

actions whenever he ‘finds that any per-

son is in violation of any condition or

limitation * * *); Section 309(a) (3),

33 U.S.C. 1319(a)(3) (emphasis added)

(the Administrator may issue a compli-

ance order when he "finds that any per-

son is in violation" of provisions of

the statute); Section 309(c), 33 U.S.C.

1319(c) (emphasis added) (criminal pe-

nalties may be imposed against "any

person who willfully or negligently vio-

lates" provisions of the statute or per-

mit conditions or limitations); Section

309(d), 33 U.S.C. 1319(d) (emphasis ad-

ded) (civil penalties may be imposed

against “any person who violates" pro-

visions of the statute or permit limi-

tations or conditions).

Thus, if petitioner's reading of

Section 505(a) were to be accepted, the

conclusion would follow inescapably that

ao aay

EPA is likewise prohibited from taking

any enforcement action against pollu-

ters whose violations ceased prior to

the filing of suit. But the courts have

consistently rejected reading any such

limitation into EPA's enforcement pow-

ers. See, e.g., United States v. Earth

Sciences, Inc., 599 F.2d 368, 376 (10th

Cir. 1979) ("It is plainly inconsistent

with the strong enforcement policy of

the Act to declare that EPA must choose

between prevention of future pollution

discharges and punishment of past vio-

lations through civil penalties.").

Accord Student Public Interest Research

Group v. AT&T Bell Laboratories, 617 F.

Supp. at 1198; United States v. Detrex

Chemical Industries, Inc., 393 F. Supp.

735, 737-738 (N.D. Ohio 1975).° Peti-

tioner's reading of the statute also

attributes to Congress the implausible

intent to ascribe one meaning to Section

309(d) of the Act in the case of citizen

suits and another meaning to the same

section in the case of governmental en-

forcement actions. Section 505(a) ex-

“Petitioner contends (Pet. 12-13)

that the issue of the Administrator's

authority to seek civil penalties for

past violations is not presented in this

case and that the Court should therefore

disregard the cases holding that the

Administrator does indeed possess such

authority. But there is no reason for

the Court to disregard judicial con-

structions of other sections of the Act

that use language icentical to that con-

tained in Section 505(a) in evaluating

petitioner's argument that the "plain

meaning" of the words used in that Sec-

tion prohibit citizens from seeking ci-

vil penalties for past violations.

SRI

pressly authorizes courts hearing citi-

zen suits to assess civil penalties under

Section 309(d), the same provision that

authorizes the assessment of such penal-

ties in suits brought by EPA. There is

no reason to suppose that Congress in-

tended "two radically different inter-

pretations [| of Section 309(d) ], one for

citizen suits and one for EPA suits."

Student Public Interest Research Group

v. AT&T Bell Laboratories, 617 F. Supp.

at 1198.

Furthermore, petitioner's conten-

tion (Pet. 15-16, 25) that citizens may

obtain only injunctive relief is at odds

with both the language of Section 505(a),

authorizing the assessment of civil pe-

nalties, and common sense. As the court

reasoned in Student Public Interest Re-

search Group v. AT&T Beil Laboratories,

617 F. Supp. at 1198-1199:

oo EE

The whole idea that Congress

might have empowered citizens to

seek civil penalties only pros-

pectively is rather odd. Penal-

ties are necessarily imposed on

past violations. *** Citizen suits

can certainly seek injunctive

relief. The courts are fully

empowered to impose sanctions

for contempt, sanctions greater

than those available under Sec-

tion 1319(d). Thus, the theory

of defendants and of the Hamker

court would require us to believe

that the provision empowering

courts to enforce citizen suits

with civil penalties was super-

fluous.

b. In addition to maintaining fi-

delity to the overall structure of the

Act, the court of appeals' construction

of Section 505(a) is fully supported by

the only pertinent legislative history.’

, In light of the ambiguity in

the statutory language, petitioner's

reliance (Pet. 8) on the “plain meaning

rule" is misplaced. Cf. Train v. Colo-

rado Public Interest Research Group,

Inc., 426 U.S. 1, 10 (1976) (quoting

United States v. American Trucking Asso-

ciations, Inc., 310 U.S. 534, 543-544

(1940) ) CT TThere certainly can be no

"rule of law" which forbids [reference

to legislative history], however clear

the words may appear on "superficial

examination.'''"').

—————

+ in

Senator Muskie, the principal architect

of the Act, explained that citizen suits

Wes

are authorized “in the case of any per-

son who is alleged to be, or to have

been, in violation, whether the violation

be a continuous one, or am occasional

or sporadic one.” 118 Cong. Rec. 33700

(1972) (emphasis added) .® The legisla-

8 Petitioner attempts to discredit

Senator Muskie's clear explanation of

Section 505 by categorizing it as "a

stray comment by one legislator" (Pet.

16). But the court of appeals correctly

recognized that Senator Muskie's state-

ments about the Clean Water Act may not

be so lightly dismissed (Pet. App. l4a

n.13):

Because of his crucial role in

the drafting and sponsorship of

the bill that became the Clean

Water Act, we give his comments

significant weight. Other courts

too have had occasion to rely

on Muskie's remarks regarding

the intent and meaning of the

Act. See, e.g., American Frozen

Food Institute v. Train, 539

F.2d 107, 118-20 (D.C. Cir.

1976) (quoting extensively from

tive history also refutes petitioner's

argument (Pet. i3) that citizen suits

were somehow viewed as less important

than governmental enforcement actions.

(Footnote Continued)

Muskie's comments as an aid to

interpreting sections 301 and

304 of the Act); American Meat

pgtisurs v. EPA, 526 F.2d 442

52 (7th Cir. '1975) (relying

on written comments by Muskie,

as “the principal author of the

Act").

At the same time that it erroneous-

ly dismisses Senator Muskie's authori-

tative interpretation of Section 505,

petitioner asks the Court to rely on

various remarks in the Act's legislative

history that describe citizen suits as

“abatement” proceedings (See Pet. 15-16

& n.9). The court of appeals appro-

priately recognized (Pet. App. l3a-1l4a)

that none of the passages cited by pe-

titionmer states that “abatement of on-

going violations is the only relief

available under Section a)." Thus,

the legislative history relied upon by

petitioner simply does not address the

question presented. Senator Muskie's

statement, on the other hand, speaks

directly to the point at issue.

| rs

As the Senate Report explained (S. Rep.

92-414, 92d Cong., lst Sess. 64 (1971)),

"(i]t should be noted that if the Federal,

State, and local agencies fail to exer-

cise their enforcement responsib.lity,

the public is provided the right to seek

vigorous enforcement action under the

citizen suit provisions of Section 505.”

Thus, nothing in the legislative history

supports petitioner's denigration of the

role of citizen suits in Congress's over-

all enforcement scheme.

. There are distinctions between

citizen suits and governmental enforce-

ment actions, but those distinctions

only highlight the fact that petitione z's

narrow construction of Section 505(a)

is not ome of them. As the court of ap-

peals explained (Pet. App. lla (citation

omitted) ):

Section 505(b), 33 U.S.C. Section

1365(b), provides that no citizen

suit may be commenced less than

sixty days after the plaintiff

has given notice of an alleged

violation to the Administrator,

c. The decision below avoids the

near-total emasculation of the citizen

suit provision that follows from peti-

tioner's argument. There is neither

evidence nor logic to support petitioner's

contention that Congress meant to au-

thorize expensive and time-consuming pre-

(Footnote Continued)

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 pro-

secuting a civil or criminal ac-

tion 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* * *, and the Act con-

tains no other express limits on

institution of citizen suits. We

read the statute as requiring only

those limits on citizen suit juris-

diction tnat Congress expressly

provided; we see no reason to im-

pose by implication limits which

Congress could have, but did not,

create.

paration for litigation that could be

thwarted "the day, the hour, or the

minute before a suit is filed."" Sierra

Club v. Simkins Industries, Inc., 617

F. Supp. 1120, 1132 (D. Md. 1985).

Indeed, the instant case well illustrates

the illogic of petitioner's position.

Petitioner does not contend that re-

spondents could have known that peti-

tioner's permit violations, which had

been ongoing for years, suddenly ceased

before suit was filed. Because of the

time necessary for a polluter to ana-

lyze its discharges, obtain laboratory

reports, and prepare and submit its

DMRs, violations typically are not re-

ported until at least a month after

they have occurred. Accordingly, it

would be physically impossible for

anyone other than the polluter to de-

termine whether, on any given day, its

discharges were in violation of its per-

mit limitations. For this reason, one

court has concluded that "Congress could

not conceivably have meant that the vio-

lations literally be ones occurring at

the time the citizen suit is filed."

Student Public Interest Research Group

v. AT&T Bell Laboratories, 617 F. Supp.

at 1194.

2. a. Contrary to petitioner's

contention (Pet. 9-10), the decision

below in no way conflicts with this

Court's decision in Middlesex County

Sewerage Authority v. National Sea

Clammers Association, 453 U.S. 1 (1981).

In Sea Clammers, the Court held that the

comprehensive enforcement scheme con-

tained in the Clean Water Act, including

the citizen suit provision, leaves no

room for implied private damages actions.

The Court's concern was with the scope of

relief available to private persons

outside that which is authorized by

Section 505, not with the coverage of

10 It was in this

Section 505 itself.

context that the Court stated, in dicta,

that Section 505 "authorizes only pro-

spective relief" (453 U.S. at 6) and

that citizens "may sue for injunctions"

to enforce the Act (Id. at 14). The

Court had no occasion to consider the

scope of relief available under Section

505 itself, and nothing in Sea Clammers

holds that citizen suits seeking civil

penalties for past violations are pro-

10 The same situation occurred in

City of Evansville v. Kentucky Liquid

Recycling, inc., 004 F.2d 1008 (7th Cir.

), cert. denied, 444 U.S. 1025 (1980),

in which the plaintiffs sought to recover

compensatory damages for themselves for

defendant's past violations of the Act,

not civil penalties for the United States

Treasury. The court rejected this pri-

vate remedy.

hibited. To the contrary, the Court

noted that, in addition to injunctive

relief, "civil penalties, payable to

the Government, also may be ordered by

the court. Section 505(a), 33 U.S.C.

Section 1365(a)." 453 U.S. at 14 n.25.

The Court also clearly recognized that

citizens are authorized to act as "pri-

vate attorneys general” (Id. at 13-17)

in the event that government agencies

fail to act.

tl Petitioner's reliance (Pet. 14)

on the Court's characterization in Sea

Clammers of citizen suits as being of a

“Limited nature" (453 U.S. at 17 n.27)

has no applicability to this case. The

Court found support for that conclusion

in the parallel--but not identical--

citisen suit provision contained in the

Clean Air Act, 42 U.S.C. 7604. Signif-

icantly, the Clean Air Act does not

authorize the imposition of civil penal-

ties in citizen suits, whether the pen-

alties are for past or continuing vio-

lations; instead, only injunctive relief

is authorized. Section 505(a) of the

Clean Water Act, on the other hand, ex-

pressly authorizes courts to impose ci-

b. Petitioner relies most heavily

on an asserted conflict between the de-

cision below and the Fifth Circuit's

decision in Hamker v. Diamond Shamrock

Chemical Co., 756 F.2d 392 (Sth Cir.

1985). Altnough the court below did

state (Pet. App. 15a) that it disagreed

with Hamker, the two cases present such

different facts that it would not be ap-

propriate to attempt a reconciliation

of the two decisions here.

Hamker, like Sea Clammers, was es-

sentially a damages action, although the

plaintiffs in Hamker attempted to cloak

their case in the garb of a citizen suit

(Footnote Continued)

vil penalties. This distinction was

explained by the Court in Student Public

Interest Research Group v. AT&! Bell

Laboratories, 61) F. Supp. at 1195-1196

| *

under Section 505(a). Hamker involved

a single discharge, an oil leak from a

pipeline, that lasted about two weeks

before it was detected and stopped.

756 F.2d at 394. Plaintiffs sought

injunctive relief and civil penalties

under the Clean Water Act and compen-

satory and punitive damages based on

pendent state law claims. Id. The

court held that subject matter juris-

diction under Section 505(a) was lacking,

construing the Act as authorizing only

those citizen suits that allege an on-

going violation of an effluent standard,

limitation, or order imposed under the

statute. 756 F.2d at 395, 396, 398-399.

The majority opinion emphasized not only

the fact that the alleged violation was

limited to a single occurrence, but also

that plaintiffs had failed even to allege

that isolated event violated any effluent

standard, limitation, or order imposed

under the Act (Id. at 396-397). The

concurring opinion stressed ‘the narrow

applicability of the holding of the Court"

(Id. at 399 (Williams, J., concurring)).

Judge Williams elaborated as follows

(Id.):

I would urge that the require-

ment that the polluter be "in

violation" clearly is broad

enough to cover the chronic

episodic violator or the vio-

lator who intentionally “turns

off the spigot” just before a

citizen brings suit. In either

of these circumstances, the stat-

ute should surely be interpreted

to cover such violations as being

current. Such circumstances

are not at all the same as this

case, so I wish to emphasize the

difference between a single

past event and a course of pol-

luting conduct where continuity

happens to be broken at the

time citizen complaint is made

and pursued. In the latter

situation, the polluter is "in

violation”.

Here, unlike the situation in Ham-

ker, petitioner violated its permit at

least 160 times over the 22 months pre-

ceding the filing of suit (Pet. App.

45a n.12). Nothing in the Fifth Cir-

cuit's opinion suggests that it would

have reached the result it did had it

been confronted with a comparable situ-

ation, in which respondents could not

have known at the time the complaint

was filed that years of violations had

suddenly ceased. If these circumstances,

review of the conflict alleged by pe-

titioner should await the consideration

by the Fifth Circuit of a case presenting

the issue here raised in a more closely

analogous factual setting. Six citizen

suits raising the question presented

here on facts similar to the instant

case are pending on appeal in the Fifth

Circuit, ** and that court should be

t2 Sierra Club v. Shell Oil Co.,

No. 84-3553 (E.D. La. 1986), appeal

pending, No. 85-3753 (Sth Cir.); Sierra

given the opportunity to elucidate fur-

ther its ruling in Hamker. The result

may well be a decision to confine Hamker

to its atypical facts, thereby obviating

(Footnote Continued)

Club v. Monochem Inc., No. 84-147B (M.D.

La. 1985), appeal pending, No. 85-3762

(Sth Cir.); Sierra Ciub v. Copolymer

Rubber & Chemical Corp., 621 F. Supp.

IOI3 (%.D. La. 1985), appeal pending,

No. 85-3763 (5th Cir.) (four consoli-

dated cases). In each of these cases,

the polluters’ DMR's showed violations

subsequent to the filing of suit as well

as before. That distinction, however,

has no bearing on the jurisdictional

issue presented. Clearly, subject mat-

ter jurisdiction cannot be made to turn

on events that do not occur until after

a complaint is filed. Were the rule

otherwise, the court and the parties

would have to wait some unknown period

of time after the initiation of a suit

to determine whether jurisdiction ex-

isted. Thus, the critical issue to be

decided im the pending Fifth Circuit

appeals is whether there must be a vio-

lation occurring on the date the com-

plaint is filed. The Fifth Circuit's

resolution of that question, in the

context of cases alleging violations

that occurred shortly before suit was

filed, will thus require it to consider

the same factual situation addressed

by the court below.

the need for review by this Court. Cf.

E. I. duPont de Nemours & Co. v. Train,

430 U.S. 112, 135 n.26 (1977) ("This

litigation exemplifies the wisdom of

allowing difficult issues to mature

through full consideration in the courts

of appeals.").

The possibility that the Fifth

Circuit may narrow or refine its deci-

sion in Hamker is not at all speculative

in light of the fact that, with the ex-

ception of district courts within the

Fifth Circuit bound to follow Hamker,

virtually every court to consider the

Fifth Circuit's decision has rejected

it. See Atlantic States Legal Founda-

tion v. Al Tech Specialty Steel Corp.,

635 F. Supp. 284, 286-287 (N.D.N.Y.

1986); Connecticut Fund for the Environ-

ment v. Job Plating Co., 623 F. Supp.

207, 213-214 (D. Conn. 1985); Sierra

Club v. Simkins Industries, Inc., 617

F. Supp. at 1131-1134; Student Public

Interest Research Group v. AT&T Bell

Laboratories, 617 F. Supp. at 1194-1199;

Student Public Research Group v. Georgia-

Pacific Corp., 615 F. Supp. 1419, 1425-

1426 (D.N.J. 1985). tS We therefore sug-

gest that review of the issue by this

court would be premature at this time.

13 Petitioner notes (Pet. 22-23

n.15) the existence of 18 district court

decisions that have addressed the issue

here presented, but it fails to point

out that, outside the Fifth Circuit,

only a single court has accepted its po-

sition. That case, Pawtuxet Cove Ma-

rina, Inc. v. Ciba-Geigy Corp., 21 Env't

Rep. Cas. R.L. 1984), 22

Env't Rep. Cas. (BNA) 1999 (D.R.I. 1985),

appeal pending, No. 86-1227 (lst Cir.),

merely cites Hamker and contains no inde-

pendent analysis. In addition, the com-

plaint in Pawtuxet, like the complaint

in Hamker but unlike the complaint here,

did not allege any continuing violations.

22 Env't. Rep. Cas. at 2000. Signifi-

cantly, the complaint in Pawtuxet, like

the complaint in Hamker, also sought

c. In addition to the fact that

the Fifth Circuit may wish to reconsider

or expressly limit Hamker, review of the

issue presented is not warranted in this

case because the judgment may be harmo-

nized with Hamker under the alternative

rationale noted by the district court

(Pet. App. 38a-39a n.8) and urged by the

Untted States as amicus curiae in the

court below. As previously noted, Sec-

tion 505(a) authorizes citizen suits

against persons alleged to be in viola-

tion of the Act. The district court

reasoned that, even if petitioner's

(Footnote Continued)

damages, in addition to other relief.

21 Env't Rep. Cas. (BNA) at 1394-1396

(D.R.I. 1984). In any event, the de-

cision is of limited precedential value

in light of the pendency of an appeal

in which the First Circuit will resolve

the jurisdictional question not only

for the District of Rhode Island but

for the entire Circuit.

theory with respect to past violations

were accepted, a complaint that alleged

in good faith the existence of continuing

violations would not be subject to dis-

missal upon later discovery that the

violations had ceased prior to suit

(Pet. App. 38a-39a n.8). Although the

court of appeals did not rely on this

rationale (Id. at 7a-8a n.9), this

Court reviews judgments, not opinions.'”

Bowen v. American Hospital Association,

106 S. Cer. 2101, 2112 n.1ll (1986) (quo-

ting Chevron U.S.A. Inc. v. NRDC, 467

U.S. 837, 842 (1984)). In Hamker, no

good faith allegation of a continuing

violation was made, nor would one have

been possible in light of the facts.

In the instant case, by contrast, there

is no serious question that respondents’

allegations of continuing violations

‘

were made in the utmost good faith. *4

Thus, petitioner has failed to show that

review of the judgment below would pro-

duct a different result.

a4 Petitioner contends (Pet. 20-21)

that here, as in Hamker, the only alle-

gations were that violations of the Act

might occur in the future. In Hamker,

however, such allegations were wholly

speculative, while in the instant case

respondents relied on a history of years

of continuing violations that, so far as

the public records demonstrated, had not

been abated at the time suit was brought.

We note also that petitioner's em-

phasis (Pet. 21 nn. 12 & 13) on the fact

that the parties stipulated that peti-

tioner's last violation occurred on May

15, 1984, does not defeat the iogic of

the district court's altern*tive ration-

ale. The stipulation was, »f course,

entered after the good faith allegations

in the complaint were made, and it can-

not alter the fact that, when suit was

initiated, the only publicly available

information indicated that petitioner

was still in violation of its permit

limitations.

3. Finally, petitioner raises a

“parade of horribles” if its construction

of Section 505(a) is not adopted. Peti-

tioner's arguments are based on sheer

speculation having nothing to do with

the facts of this case. For example,

petitioner relies on the Hamker court's

concern that allowing citizen suits for

past violations would place an undue

burden on the federal courts by permit-

ting all state damages claims that could

be brought under pendent jurisdiction

to be litigated in a federal forum.

Hamker, 756 F.2d at 396. While that may

have been a legitimate concern in Ham-

ker, in which plaintiffs sought both

compensatory and punitive damages, no

state law claims were ever raised in

this case. Moreover, other than Pawtu-

xet Cove Marina Inc. v. Ciba-Geigy Corp,

supra mote 13, of the 18 district court

decisions cited by petitioner (Pet. 22-

23 m.15), only one even suggests that

a pendent state law claim may have been

raised. See Sierra Club v. Copolymer

Rubber & Chemical Corp., 621 F. Supp.

at 1016 n.13. In any event, the court

of appeals correctly recognized that,

under the principles established in

United Mine Workers v. Gibbs, 383 U.S.

715, 726 (1966), a district court "would

be acting within its discretionary au-

tority in refusing to exercise juris-

diction over state law damage claims”

(Pet. App. 17a). }°

is Petitioner also suggests (Pet.

24) that citizens will be encouraged to

bring damages actions disguised as cit-

izen suits in order to recover attorney

fees for their state law claims. Peti-

tiomer, like the court of appeals in Ham-

ker, fails to offer any support for the

motion that the Clean Water Act's attor-

In another makeweight argument, pe-

titiomer suggests (Pet. 25) that exces-

sive numbers of citizen suits will dis-

serve the policies of the Clean Water

Act by interfering with the "primary

enforcement responsibility” of EPA and

the States. This assumption is flatly

at odds with Congress's intent in en-

acting Section 505. As the Senate Report

explained (S. Rep. 92-414, supra at 80):

The standards for which enforce-

ment would be sought either under

administrative enforcement or

through citizen enforcement pro-

cedures are the same. Therefore,

the participation of citizens

in the courts seeking enforce-

ment of water pollution control

requirements should not result

in inconsistent policy.

(Footnote Continued)

ney fee provision, 33 U.S.C. 1365(d),

necessarily extends to attorney fees

incurred in the pursuit of pendent

state law claims. Cf. Hensley v.

Eckerhart, 461 U.S. 424, 434-435 (1983).

In fact, petitioner makes no credible

case that citizen enforcement powers

are not being responsibly employed,

nor could it do so if it tried. /®

Citizen enforcement is working very

well, as documented in a recent Senate

Report and a study performed for the

Environmental Protection Agency. See

S. Rep. 99-50, 99th Cong., lst Sess. 28

16 Petitioner argues (Pet. 24-25

n.18) that "{i]t is common knowledge in

the industry” that many defendants set-

tle citizen suits by making contributions

to the plaintiff groups bringing the suits

or to projects sponsored by those groups.

Nothing of the sort occurred here; the

nearly $1.3 million in civil penalties

assessed by the district court will be

paid to the United States Treasury.

Moreover, the authority petitioner cites

for the "common knowledge in the indus-

try" consists of three letters received

by a single attorney who then wrote an

article on the general subject of citi-

zen suits. See Schwartz & Hackett, Ci-

tizen Suits Against Private Industry

Under the Pyaen Watae Act, 1? Natural

Resources Lawyer 327, 328 & n.6, 360-

365 (1984).

(1985); 1? Environmental Law Insti*ute,

Citizen Suits: An Analysis of Citizen

Enforcement Actions Under EPA-Adminis-

tered Statutes, at V 5-ll (Sept. 1984).

Finally, the participation of the United

States as amicus curiae in a number of

ad Petitioner quotes from the

Senate Report out of context. It is

true, as petitioner notes (Pet. 22),

that the Report remarked on the increase

in the number of citizen suits filed in

recent years, but petitioner attempts

to convey the totally inaccurate impres-

sion that that increase is at odds with

congressional intent. In fact, however,

the Report states in three sentences

preceding the sentence quoted by pe-

titioner (S. Rep. 99-50, supra, at 28):

Citizen suits are a proven en-

forcement tool. They operate

as Congress intended--to both

spur and supplement to [sic|

government enforcement actions.

They have deterred violators

and achieved significant com-

pliance gains.

these cases, including the instant one

demonstrates the total lack of founda-

cr?

| ame

cr?

| an

| ame

a |

a8)

08)

number of frivolous citizen suits work-

ing any interference with EPA's pri-

mary enforcement authority

ieee

CONCLUSION

The petition for a writ of certiorari

should be denied.

Respectfully submitted,

JETER M. WATSON*

ANN POWERS

CHESAPEAKE BAY FOUNDATION,

INC.

Suite 815, Heritage Bldg.

1001 East Main Street

Richmond, VA 23219

(804) 780-1392

Attorneys for Respondent

Chesapeake Bay Foundation,

nc.

JAMES THORNTON

NANCY MARKS

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

122 East 42nd Street

New York, NY 10168

(212) 949-0049

Attorneys for Respondent

Natural Resources Defense

Council, Inc.

*Counsel of Record

NOVEMBER 1986

»~*

APPENDIX A

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

7 ay

Wwe

DEFENSE ,

_ .

LTNEY OF SMITHFIELD,

~" ta

RICHMOND DIVISION

SAPEAKE BAY FOUNDATION, )

and NATURAL RESOURCES ) Civil

) Action

Plaintiffs, No .

) 84-0366-

) m

)

Defendant.

FINDINGS OF FACT AND CONCLUSIONS

F LAW AS STATED FROM THE BENCH

~-_

RE Honorable Robert R. Merhige,

JE...

United States District Judge

Richmond, Virginia

August 28, 1984

THE COURT: This is a motion

by plaintiffs for partial summary judg-

ment, on the issue of liability, ina

“citizens’' suit" to enforce certain

requirements of the Clean Water Act,

33 U.S.C. § 1311 et. seq. (the Act),

against a food-processing facility. No

effort was made to set up a factual is-

sue that was not present; there are no

factual issues here. The matter is ripe

for summary judgment.

The first of two plaintiffs

here, Chesapeake Bay Foundation, is a

non-profit organziation organized under

the laws of Maryland. Its principal

place of business is in Annapolis, and

it has an office in Richmond. It is a

regional conservation organization with

thousands of members in the Chesapeake

Bay area. Some of its members reside in

Virginia in the vicinity of the Pagan

River, and they use and enjoy the river

and the water system. (All this is set

forth in plaintiffs’ uncontested affi-

davits.)

The Court finds that the

quality of the nation's waters and wa-

ters of the Commonwealth directly affects

the health, recreation and esthetic en-

vironmental interests of that organiza-

tion and its members.

The Court finds that the in-

terests of that organization and its

members have been, are being, and will

be adversely affected by the failure

of defendant, Gwaltney of Smithfield,

Limited (Gwaltney), to comply with its

National Pollution Discharge Elimination

System (NPDES) permit.

The second plaintiff, Natural

Resources Defense Council, is a non-

profit membership organization organized

under the laws of the State of New York

with offices in New York, Washington

and San Francisco. It has over seven

hundred individual members within the

Commonwealth of Virginia. They, like

the members of the Chesapeake Bay Foun-

dation, utilize the river and are affec-

ted by Gwaltney's failure to comply with

its NPDES permit. (This, too, is by

uncontested affidavirc).

Jurisdiction in the case is

pursuant to 33 U.S.C. Section 1365(a)(1):

the Court finds from the uncontradicted

evidence that on October 23, 1974, the

Virginia State Water Control Board is-

sued, to the defendant, NPDES Permit

Number VA 0002844, pursuant to VA. Code

Section 62-1-44.15, Section 402 B. of the

ACT, and an approval of Virginia's pro-

gram by the Administrator of the United

States Environmental Protection Agency

RR RRR

discharge is unlawful unless it is du-

thorized by one of several specified

sections of the Act, including Section

402(b) of the Act, 33 U.S.C. 1342(b).

Section 402(b) provides that compliance

with the permit issued pursuant to this

section shall be deemed compliance with

Section 301 of the Act, 33 U.S.c. §

L311; for purposes of enforcement under

Section 309 of the Act, 33 U.S.c. §

L319, or under Section 505 of the Act,

33. U.S.C. 8 1365.

Without more, then, to vio-

late an NPDES permit condition is to

violate the Act. E.P.A. v. State Water

Resource Control Board. 426 U.S 200.

205, (1976), Natural Resources Defense

Council v. Costle, 568 F.2d. 1369 1374-

77 (D.C. Cireuit 1977)

There being no genuine issue

as to any material facrs the plaintiffs

are entitled to’ summary judgment in the

form of a declaration that the defendant

has violated the Act, for which it must

be held liable. It is so ORDERED.

Gentlemen, we might just as

well set it down for whatever else you

want to do with it. I will see you in

chambers. Thank you for your help.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.