# Joint Appendix — 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%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 49 ## Text Supreme Court. U.S. a7 JOSE: AR. IN THE Supreme Court of the Wuited States OCTOBER TERM, 1986 GWALTNEY OF SMITHFIELD, LTD CHESAPEAKE BAY FOUNDATION, IN¢ anc NATURAL RESOURCES DEFENSE COUNCI Re spor dents On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit JOINT APPENDIX E. BARRETT PRETTYMAN, JR." jeTER M. WATSON * RicHaRD J.M. POULSON \NN POWERS PaTrick M. RAHER CHESAPEAKE BAY Davin J. HAYES FOUNDATION, IN¢ CATHERINE JAMES LAUR® Suite 815, Heritage Bidg loOHN G. ROBERTS, JR 1001 East Main Street HOGAN & HARTSON Richmond, VA 23219 partnership including 804) 780-1392 professional corporations lawEa THORNTON $15 Connecticut Aver N.W NANCY MARKS Washington, D.( AU NATURAL RESOUR 202) 331-4685 DEFENSE CouNs r Petitioner 122 East 42nd Street ' vy k, N.Y L016 19-0049 ; elof R PETITION FOR CERTIORARI FILED SEPTEMBER 23, 1986 CERTIORARI GRANTED JANUARY 12, 1987 « - ’ " In THE Supreme Court of the Wuited States OcToBER TERM, 1986 No. 86-473 GWALTNEY OF SMITHFIELD, LTD... Petitioner. v. CHESAPEAKE Bay FOUNDATION, INC.. and NATURAL RESOURCES DEFENSE COUNCIL. Respondents. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit JOINT APPENDIX TABLE OF CONTENTS Page Docket entries from the United States District Court for the Eastern District of Virginia l Docket entries from the United States Court of Appeals for the Fourth Circuit 7 Exhibit 10: Discharge Monitoring Reports for March and May, 1984 11 Exhibit 25: Letter to Joseph Luter from Richard N Burton, dated March 12, 1984 13 Exhibit 27: Letter to Terence Switzer from Terry L. Retting, dated Apri! 6, 1984 16 DATE NR. 1984 June 15 1 Junel5S — June 22 2 June 29 3 June 29 A June 29 5 June 29 6 July 2 — July 5 7 July 23 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R CHESAPEAKE BAY FOUNDATION, et ai.., 8 Plaintifis, v. GWALTNEY OF SMITHFIELD, LTD., Defendant. DOCKET ENTRIES PROCEEDINGS Complaint filed. No jury demand. Summons issued & mailed to atty. for service. Pitf’s Decline to jurisdiction of Magistrate, filed Pitfs’ Statement of Material Facts Not In Dis- pute In Support For Their Motion For Summary Judgment, filed. Pitfs’ Memorandum of Law, filed. Affidavit of Jeter M. Watson, filed. Pitfs Notice of Motion, filed. Acknowledgement of summons, executed, filed. Deft’s Answer to Complaint, No Jury, filed, with Motion. Pitfs’ Response To Deft’s Answer & Motion To Dismiss, filed. DATE NR. 1984 July 25 9 July 25 10 Aug.20 11 Aug. 28 Aug.30 12 Sept.4 13 Sept.10 14 Oct. 5 -- Oct.10 15 Oct.16 16 Oct.16 17 2 PTO, Non-Jury, ent’d 7-25-84 (RRMjr) filed. Copies to counsel at PTC. Motion for Judgment on the Pleadings filed by the Pitf. Notice of Hearing on August 28, 1984 at 2:00 p.m., Filed. IN OPEN COURT: MERHIGE, J. HALASZ, OCR APPEARANCES: PARTIES BY COUNSEL. DEFT’S MOTION TO DIS- MISS HEARD; DENIED. PLTFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT HEARD; GRANTED. ORDER TO ENTER. (21 Mins.) ORDER, denying deft’s motion to dismiss; de- nying deft’s motion to abstain: pitf’s motion for partial summary judgment is GRANTED ete. Ent. by RRM, JR. on 08/30/84 & filed. Cps. mailed. Deft’s Motion for Rehearing, Filed. Pitfs’ Opposition to Deft’s Motion For Rehear- ing, filed. Transcript of Hearing before Hon. RRM, JR. on 08/28/84 In I Vol., filed. Pitf’s Motion For Expedited Discovery & Ex- pedited Proceedings on the Remedy, filed. ORDER, that discovery is extended through 12/14/84: Parties to file proposed findings of fact by noon 12/14/84. Deft’s motion for re- hearing is DENIED. Ent. by RRM, JR. on 10 16/84 & filed. Cps. mailed. Deft’s Answer, filed. No jury demand. DATE NR. 1984 Oct.16 18 Oct.17 19 Oct.26 20 Oct.30 21 Nov. 5 22 Nov. 6 23 Nov.16 24 Dec. 16 25 Dec. 16 26 Dec. 6 27 Dec. 14 28 Dec.17 29 Dec.17 30 3 PROCEEDINGS Deft’s Memorandum In Support of Motion For Rehearing, filed. Pitf’s Motion To Set Trial Date, file”. Deft’s Motion For Reconsideration, filed. ORDER, that the portion of this Court’s Order of 10/16/84 denying deft’s motion for a re- hearing is VACATED. Argument on said mo- tion etc. is scheduled for 11/15/84 at 8:00 A.M. Ent. by RRM,JR. on 10/30/84 & filed. Cps. mailed. Pitfs’ Motion to Strike and Brief in Support, filed. Pitfs’ Status Hearing Memorandum, Filed. ORDER, that deft’s Motion For Rehearing is GRANTED & the Order of 08/30/84 is Amended to Provide that the deft. violated the Federal Water Pollution Control Act, ete. Briefing schedule set. Ent. by RRM,JR. on 11/16/84 & filed. Cps. mailed. Pitfs’ Notice of Deposition of J. Willis Sneed on December 11, 1984, Filed. Pitfs’ Notice of Depositions of Joseph Luter, III, Henry Morris, Terry Rettig & Kenneth Brown, Filed. Pitfs’ Request for Entry Upon Land, Filed. Pitf’s Proposed Findings of Fact & Conclusions of Law, filed. Parties Stipulation, filed. Deft’s Proposed Findings of Fact & Conclu- sions of Law, filed. (Exhibits to this are in a brown expandable next to case file) DATE NR. 1984 Dec. 18 31 Dec.18 32 Dec. 18 33 Dec.18 34 Dec. 18 35 Dec. 19 1985 Jan. 1] — Jan.16 36 Jan.29 37 Jan.29 38 Feb.11 39 4 PROCEEDINGS Pitfs’ Witness List, filed. Pitfs’ Exhibit List, filed. Deft’s Witness List, filed. Deft’s Exhibits List, filed. (Copies of Exhibits attached to this List) Pitf’s Trial Memorandum, filed. TRIAL PROCEEDINGS: MERHIGE, J. HALASZ, OCR APPEARANCES: PAR- TIES BY COUNSEL. MATTER CAME ON FOR TRIAL ON MERITS. OPENING WAIVED BY THE PLTFS. OPENING MADE BY THE DEFT. PLTF ADDUCED EVIDENCE; RESTED. DEFT ADDUCED EVIDENCE; RESTED. EVIDENCE CON- CLUDED. DEFT TO FILE POST-TRIAL BRIEF BY 1-15-85; PLTFS TO RESPOND W/N 7 DAYS THEREAFTER IF THEY DEEM IT NECESSARY. CASE TAKEN UNDER ADVISEMENT. (5 Hrs. 36 Mins.) Transcript of Trial Proceedings held on 12/19 84 in I Vol., filed. Deft’s Post-Trial Memorandum, Filed. Pitfs’ Motion For Leave To Amend The Com- plaint Or In The Alternative Join A Party Deft., filed. Pitfs’ Response To Defts’ Post-Trial Memo- randum, filed. ORDER, giving Ralston Purina Co. through 02/25/85 within which to file a response to pitfs’ Motion To Amend etc. Ent. by RRM,Jr. on 02/11/85 & filed. Cps. mailed. DATE NR. 1985 Feb.25 40 Mar. 8 41 Apr. 2 42 May16 43 May16 44 May 24 45 May 24 46 June 6 47 June 26 48 June 26 49 5 Non-Party Continental Baking Co.’s Memoran- dum In Opposition to Pitfs’ Motion To Amend Their Complaint Or In The Alternative To Join A Party Detftt., filed. ORDER, extending through 03/31/85 the time within which Pltfs’ must respond to Continen- tal Baking Co’s Memorandum In Opposition to Pitf’s Motion To Amend, etc. Ent. by RRM,JR. on 03/08/85 & filed. Cps. mailed. Pitfs’ Reply To Continental Baking Co’s, Mem- orandum In Opposition To Pitfs’ Motion To Amend Their Complaint Or In The Alternative To Join A Party Deft., filed. Deft’s Motion To Dismiss For Lack of Juris- diction, filed. Deft’s Memorandum In Support of Motion To Dismiss for Lack of Jurisdiction, filed. ORDER that Pitfs have ten (10) days from the date of this Order to file an opposing memo- randum, entered by RRM, JR. on 5/24/85 & Filed. Copies Mailed. Pitf’s Memorandum In Opposition To Deft’s Motion To Dismiss, filed. Deft’s Reply Memorandum In Support of Mo- tion To Dismiss for Lack of Jurisdiction, filed. Memorandum of the Court ent. by RRM,JR. on 06/24/85 & filed. JUDGMENT ORDER, that deft’s motion to dismiss is hereby DENIED: Deft., Gwaltney of Smithfield, Ltd., is declared to have been in violation of the Clean Water Act etc.; deft. en- joined until further Order of the Court to pro- vide ptifs’ with a copy of all reports said deft. DATE NR. 1985 June 26 June 26 July 24 July 25 July 25 July 26 Aug. 9 Aug. 12 Aug. 21 6 PROCEEDINGS submits to state or federal government relating to its NPDES permit etc. Deft. shall pay civil penalties in accord with the Court’s mermoran- dum in the sum of $1,285,322 with interest from this day forward; counsel for the respec- tive parties shall meet to confer re: atty. fees etc. if they fail to agree appropriate afiidavits shall be filed with the (Cont.) Court no later than 20 days from this date. Ent. by RRM,JR. on 06/26/85 & filed. Cps. mailed. Pitfs’ Application For Atty. Fees & Expenses (with attachments), filed. Deft’s, Gwaltney’s, Motion For Extension of Time, filed. Findings of Fact & Conclusions of Law As Stated From The Bench by Hon. RRM.JR., filed. Deft’s Notice of Appeal, filed. ($70.00 fee pd.) ORDER, granting deft’s motion for extension of time to respond to the application for atty fees through 08/02/85 ent. by DDW on 07/26 85 & filed. Cps. mailed. Deft’s Answer to Pitf’s Application For Costs & Fees, filed. ORDER, that the time within which deft. may respond to pitf'’s application for atty. fees is extended through 08/09/85 ent. by RRM,JR. on 08/12/85 & filed. Cps. mailed Clerk’s Certificate 7 UNITED STATES COURT OF APPEALS 11-12-85 FOR THE FOURTH CIRCUIT No. 85-1873 CHESAPEAKE Bay FOUNDATION, INC.;: NATURAL RESOURCES DEFENSE, Appellees, versus GWALTNEY OF SMITHFIELD, LTD.. Appellant. DOCKET ENTRIES - FILINGS—PROCEEDINGS Case docketed. ROA filed. bhr BRIEFING ORDER, filed. A due 10-07-85. Tenta- tive Calendar for December, 1985 session. bhr ORDER requiring a joint brief per side, filed. bhr. DISCLOSURE STATEMENT A, Y, filed. bhr DISCLOSURE STATEMENT E, N, filed. bhr DISCLOSURE STATEMENT E Re- sources), N, filed. bhr MOTION (K-44) of Friends of Earth, Sierra Club, Student Public Interest Research Group of New Jersey, Connecticut Fund for the Environment and Atlantic States Lega! Foundation for leave to file brief amici curiae on behalf of Es, filed (BHR ;jm) MOTION (K-67) of Es to supplement the appen- dix, filed (BHR :ew) (Natural ‘DATE 11-12-85 11-13-85 11-19-85 11-19-85 11-20-85 11-20-85 11-20-85 11/21/85 11/22/85 12/2/85 12/2/85 01-08-86 FILINGS—PROCEEDINGS MOTION (K-68) of Es to supplement the record, filed (BHR :ew) RESPONSE OF A (Gwaltney) in opposition of motion for leave to file amicus brief. filed. bhr RESPONSE of applicant's of the amicus brief in opposition to A’s response, filed. bhr MOTION (K-100) of A to extend page limitation of reply brief, filed. bhr RESPONSE OF E (Chesapeake) to motion for filing the amicus brief, filed. bhr MOTION (K-44) to file amicus brief; A's response in opposition to motion; applicant's response to A’s opposition; E’s response to amicus motion mailed to JHW. bhr MOTION (K-100) of A for extending page limi- tation of reply brief mailed to JHW. bhr APPELLANT'S OPPOSITION (K-68) to Es’ mo- tion supplement the record, filed (BHR :nac) Transmitted Es’ motion to supplement the appen- dix; Es’ motion io supplement the record on ap- peal; and A’s opposition to Es’ motion to sup- plement the record to JHW. (BHR :nac) ORDER granting motion K-44, filed (BHR-:jm) Copy to Troy; Raher-Hayes-LaCroix; Watson; Thornton; Powers; Terris-Black; Unterberger- Ojala ; Habicht-Firestone-Shilton-Lees ORDER granting motions K-67, K-68 & K-100, filed (BHR:jm) Copy to Troy; Raher-Hayes- LaCroix; Watson; Thornton; Powers: Terris- Black; Unterberger-Ojala; Habicht-Firestone- Shilton-Lees MOTION (A-6) of A to supplement the record, filed. bhr FILINGS—PROCEEDINGS 01-16-86 01-21-86 01-21-86 01-21-86 1/27/86 01-29-86 1/21/86 06 /05 /86 MOTION (A-8) of USA-AC for permission to par- ticipate at oral argument, filed (BHR:jm) Transmitted to HLW, DSR, JMS on 1/13/86 RESPONSE (A-6) of amicus curiae, US, to A’s motion to supplement the record, filed (DHB: ew) RESPONSE of E to A’s motion to supplement the record, filed (DHB :ew) RESPCNSE of amici curiae, Friends of the Earth, etc. to motion to supplement the record, filed (DHB :ew) Transmitted A’s motion to supplement the record (A-6); response of the amicus curiae, US to motion A-6; E’s response to motion A-6 and response of amici curiae, Friends of the Earth, ete. to HLW, DSR and JMS. RESPONSE to motion (A-8) of Amicus, US, to participate in argument, filed (Five minutes ceded by Es), (DHB:ew) REPLY to CBF’s opposition to Gwaltney’s motion to supplement the record, filed (BHR:jm) Trans- mitted to HLW, DSR, JSM on 1/27. ORDER granting A’s motion to supplement the record, filed (BHR:ew) Copy of order sent to Troy; Raher-Hayes-LaCroix; Watson; Thorn- ton; Powers; Unterberger-Ojala; Terris-Black and Lees. Letter to counsel (A-8) advising amicus may ar- gue if ceded 5 minutes from counsel (BHR:jm) PETITION FOR REHEARING AND SUGGES. TION FOR REHEARING IN BANC /(A-151 of A, filed (SAR:ew) Transmitted to HLW, DSR, JMS with copies to circuit judges on 06/06/86. 10 DATE FILINGS—PROCEEDINGS 6/5/86 MOTION (A-152) of Es for attorney fees and expenses, filed. jd 6/25/86 ORDER denying petition A-151, filed (SAR:jm) Copy to all counsel of record 06/13/86 LETTER from E’s counsel, Watson, with attach- ments, filed (SAR :cw) 06/30/86 RESPONSE of A to motion for attorney fees and expenses, filed (SAR :cw) 07/03/86 Transmitted Es’ motion for attorney fees and ex- penses, with attachments; letter from E's coun- se, with attachments; A’s response to motion for attorney fees and expenses to HLW: DSR and JMS. 07/03/86 MOTION (A-182) of A for stay of mandate, filed (SAR:ew) Transmitted to HLW: DSR and JMS along with the above transmittal. 7/9/86 REPLY of E’s (A-152) to A’s response to motion for attorney fees and expenses, filed. BMM :ch 7/10/86 TRANSMITTED E's reply to HLW, DSR, JMS, BMM :cb 8/5 86 ORDER that the motion for attorney's fees and ex- penses is referred to the d/ct. for decision: this court granted stay of mandate pending A’s timely application to U.S.S.Ct. for a writ of certiorari, filed. SAR:gac (See order further explanation) 8/5/86 ORDER that the mandate in this case be, and is hereby, stayed pending timely application of the A to the 8.Ct. of U.S. for writ of certiorari, filed. SAR:gac Copies of both orders « i R586 to Counsel of Record. oem ee sem erewe sees lee etewee ee eed avowse tt aaa eeatres © eee eeeet! SMITHFIELO aa ratryv vec 4trwnw COMMONWEALTH OF VIRGIN ee ee ITT GWALTNEYs, INC va 23430 FILE NO,22+2260, PARAMETER eee! 8 .eeerne avaerace MAniMUM unre 001 = FLOw reProrteo! 1,068 1,438 — eoeneasest MGO 002 Pr REPORTED eo vevevccccsccesecese .... ae eeeeeteeecoarepeces 093 . 19.4 a 8U05 [REPORTED : . ececvessent_ 174.000 DSTe KG70 006 TOTAL SuUS.SOLIOS |REPORTEO 157.1 236.9 adi ereses_ | 826.0000 S55, 0000 KG/O 00S TOTAL sianh CL2 REPORTED [tee eeeeeeneorerere gece LL on6 FECAL ™ COLIFORM R eeeeeteecererereeees seecme=srt = 064 TKN (N=K JEL) kh 123.0 220.5 Prerrrrt 10 e000 . KG/0 500 0 & ++ fy REPORTED 4.8 16.1 | | sesemswest 78.000 6. KG/C aoe Free ee Fee art CESU eee Te OF CO Hees * faseasd ano Oven? ._ Owes vera eccusnences we Taw fL.ow im. 6} wee wer tee te ae0@ teat ‘ ‘5 TO, A, a Le pee ieee Ott uratt oe (our, et : ; : ~ Ste eee t © OF Low heat + week FOP EO ORF te omreete 2608 + acent YE. Cowone eave ia >, 804 ’ ¥$7-4321 84 | 6 8 coon. tee aoneeeeeeess bo euer* eaeecmrtt ocean eee ae ow re * ITT GWALTNEY, INC COMMONWEALTH OF VIRGINIA STAT ~““"Sy Takase Someone oe ae@e@wese : 6 SmITHFIELO va (23430 neal FILE NO) ——_* _— = er — TY eco O88 FRI TEO Hae Parner ae entcurtrvet — Hermry L. Morris 12 WATER COT Tat L MaJOR 07/14/81 . v. =. ‘ . | ‘ United States District Judge Date Aug. 30. 1984 61 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R CHESAPEAKE BAY FOUNDATION, INC., et e/., Plaintiffs, We GWALTNEY OF SMITHFIELD, LTD.., Defendant. [Filed Nov. 16, 1984] ORDER After hearing counsel for the parties at a status con- ference held on the 7th day of November, 1984, it is hereby ADJUDGED and ORDERED as follows: 1. Defendant's Motion for Rehearing is GRANTED, and this Court’s Order of August 30, 1984, is AMENDED to provide that the Court declares defendant Gwaltney of Smithfield, Ltd. to have violated the Federal Water Pollution Control Act, 33 U.S.C. §§ 1311 and 1342, on those occasions subsequent to October 27, 1981, that are documented by Discharge Monitoring Reports that it has submitted to the Virginia State Water Control Board. 2. Counsel for the plaintiffs shall serve proposed find- ings of fact and conclusions of law on counsel for the defendants no later than November 27, 1984, and coun- sel for the defendant shall serve proposed findings of fact and conclusions of law on counsel for the plaintiffs 62 no later than December 4, 1984. Counsel for the parties shall thereafter meet and confer in an effort to enter into a comprehensive written stipulation of the facts and the law relevant to the imposition and amount of a civil penalty for the defendant's violations of the Federal Water Pollution Control Act. All stipulations shall be filed with this Court no later than 12:00 noon on De- cember 14, 1984, together with the parties’ proposed find- ings of fact and conclusions of law regarding those is- sues that cannot be resolved by stipulation s/ |Illegible| United States District Judge Date Nov. 16, 1984 Seen and Agreed to: s’ Jeter M. Watson JETER M. WATSON Chesapeake Bay Foundation, Inc 11 South 12th Street Richmond, Virginia 23219 Counsel for Plaintiffs s Anthony F. Troy ANTHONY F. Troy Mays, Valentine, Davenport & Moore 23rd Floor, Sovran Center 1111 East Main Street Post Office Box 1122 Richmond, Virginia 23208 Counsel for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION P . CA-84-0366-R CHESAPEAKE BAY FOUNDATION, INC.., Plaintiff, v. GWALTNEY OF SMITHFIELD, LTD.. Defendant. [TRANSCRIPT OF PROCEEDINGS) Richmond, Virginia Before: HoNnoras_e Ropert R. Mernice, Jr., United States District Judge Appearances: Jerer W. WATSON, Esq. JAMES THORNTON, Esq. ANN P. Galtuis, Esq. Scott Burns, Esq. For the plaintiff ANTHONY F. Troy, Eso. James E. RYAN, Jr., Esa. H. Wooprow Crook, Jr., Ese. For the defendant GILBERT FRANK HALASZ, RPR Official Court Reporter 64 (87) Q. Mr. Sneed, would the proposed interim solu- tion and the permanent solution, so called, did you tell the company that both would meet permit compliance? A. We felt they were both acceptable alternatives that stood a good chance of meeting the limitations, other- wise we would not have proposed them. Q. Would you describe very quickly for the court the change in the aerators design which has been introduced and how that would improve waste water treatment at the plant? A. Yes. The original aerators which were in the aerated lagoon originally from I. T. T. Gwaltney which were then moved to the new aerated lagoon do result in fairly large amount of temperature loss, particularly dur- ing the winter [88] time. So as those have needed repair or needed replacement they have been replaced with a submerged type of aerator. Q. Does that minimize heat loss, and does it make it more likely that the plant would comply with its T. K. N. limitations? A. That is correct. Q. You have reviewed the waste water characteristic, I take it, that come out of the packing plant. Are you aware—just characterize the waste water for me, if you would, please. Tell me what it is like. A. Yes, sir, it is a highly biodegradable waste as you would expect from food, that is, coming from pork. it is very readily treatable by the bacteria in the treatment plant by virtue of being a food waste. It is not a toxic type of waste. In fact, we had a number of toxics anal- yzed and none of them showed any concentrations that would be of concern. Q. So to your knowledge there is nothing in the waste water that would be toxic, that is of any concern? A. No, sir. Other than chlorine, which is required by the State Water Control Board to meet the fecal limitations. Q. All right. I don’t believe I have further questions. THE COURT: All right. MR. BURNS: I will try to make it brief. I only have a few questions, a couple areas I want to touch on. (89) CROSS-EX AMINATION BY MR. BURNS: Q. Isn't it in fact, through, that your company advised defendant, | believe you have testified, prior to the pur- chase of the Gwaitney facility that there were inadequate technology there with regard to meeting T. K. N. limits? A. Sharron City called our firm when Smithfield Foods was considering buying the plant and briefly de- scribed the facility that was there briefly and asked our opinion of it. We did indicate that we felt the lack of sludge return was of concern and noted potentially about our other problems that perhaps should be addressed. Q. Mr. Sneed, when was the Concept Engineering re- port designed to address these problems prepared? A. In June and i believe in July of 1982. Q. That is some eight or nine months after defendant acquired the Gwaltney plant? A. I believe that is correct. Q. With regard to the interim solution prepared in the Concept Engineering report, were there not some reservation with regards to its ability to meet T. K. N. limits in the winter? A. Yes, sir. We did have some reservations, particu- larly in light of the surface aerators and temperature loss. However, we had designed a very similar type system, a lagoon [90] system with sheet pile baffle walls at Smith- field Packing Company, and that did give us comfort in that regard. I might also note, of course, that subsequent use of the submerged aerators to replace the surface aeraters. Q. You referred a number of times in your testimony to Smithfield plant. You designed that plant? A. Yes, sir. Q. Have there been compliance problems there? A. In the past year or so, yes, there have been. Q Wasn't that facility in closed by the State Water Control Board as a result of that non compliance? A. Yes, sir. Q. Do you think that given that it was unreasonable for the State to request more information from Gwaltney than was provided by Smithfield? A. Yes, I do. That system performed very adequately for a number of years after it was designed. Only after the design loads were significantly increased did it go out of compliance. Q Mr. Sneed, is adequate grease cover important to proper winter T. K. N. treatment of the plant? A. On the anaerobic lagoon, yes. Q You were with us last week when we toured the facility, were you not? A. Yes. [91] Q Isn't it im fact true at that point in time, in December, the lower anaerobic lagoon did not have ade- quate grease cover? A. Yes. Earlier in the summer time that lagoon was covered with grease. And that was what we expected would happen. Quite frankly we were very surprised that that grease cover has deteriorated to this point, and we have since taken steps to accelerate the formation of that grease cover. Q. Given the importance, as you mentioned before, of maintaining adequate grease cover, isn't there some doubt in your mind as to whether the Gwaltney facility would be in compliance with T. K. N. limits this winter? A. Yes, we have. Q. Isn't there some doubt? That is all I am asking. A. Yes, sir. 67 I think there is some doubt every year that you would expect the plant to go out of compliance at some time. Q. I believe you mentioned earlier that the B.O.D. data biochemical oxygen demand data upon which you relied in developing the Concept Engineering report were within expected limits? A. Yes, sir. Q. Isn’t that because you chose to disregard the higher B.0.D. numbers reported on two to three days tested? [92] A. We did disregard the higher B.O.D. and sus- pended solids numbers on those days because the com- parison of those parameters with the T. K. N. and the grease indicated there was probably a grease spill which skewed those numbers. The one remaining sample which we did choose to believe is within norm of what we would expect from this type of plant. Q. You stated earlier, did you net, there were at least some reservation in your mind with regard to the inability of the interim solution to meet T. K. N. limits in the winter. A. Yes, sir. Q. Defendant didn’t at first even chose to implement the interim solution, did they? A. There was another proposal which was submitted by the personnel of I. T. T. Gwaltney after our Concept Engineering report was prepared. Q. That report or proposal was submitted in the late summer of 1982, was it not? A. I believe that is correct. Q. Did your company express an opinion with regard to the proposed modifications of your interim solution? A. Regarding our proposed modification? Q. No. Did your company express an opinion with regard to the modification proposed by Gwaltney when they decided not to follow your interim solution? A. Yes, sir, I believe we expressed doubt that the [93] proposed—the I. T. T. Gwaltney proposal would meet the limitations. 68 Q. Do you have an exhibit book? A. Idon’t have one in frent of me. Q. Exhibit 60, please. Can you identify that document for the record, please? A. This is a memo which was written by Jim Wells, president of our company, to Paula Wells and myself re- garding the Gwaltney packing plant. Q. Could you please read the last paragraph of that memo to the court? A. “In the meantime, Sharron City is training a new class of operators to run tests.” Q. Next to the last paragraph, pardon me a minute. A. “Ultimately Mr. Luter will have to decide what to do with waste treatment at Gwaltney Smithfield based upon the reaction of the State of Virginia concerning our report and concerning fines if there are T. K. N. vio- lations, which there most assuredly will be in the winter.” Q. That was with regard to the proposed modifica- tions of Gwaltney to interim solution, was it not? A. Yes, sir. 69 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R CHESAPEAKE BAY FOUNDATION, INC. and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs, Vv. GWALTNEY OF SMITHFIELD, LTD., Defendant. [Filed May 16, 1985) MOTION TO DISMISS FOR LACK OF JURISDICTION Defendant Gwaltney of Smithfield, Ltd. respectfully moves the Court to dismiss this action for lack of juris- diction over the subject matter, for the reasons stated in the accompanying Memorandum. GWALTNEY OF SMITHFIELD, LTp. By /s/ Anthony F. Troy Of Counsel H. Woodrow Crook, Jr. 107 Institute Street Post Office Box 406 Smithfield, Virginia 23430 (804) 357-3050 Anthony F. Troy James E. Ryan, Jr. George A. Somerville Edward E. Scher Mays, Valentine, Davenport & Moore 23rd Floor, Sovran Center 1111 East Main Street Post Office Box 1122 Richmond, Virginia 23208 (804) 644-6011 Counsel for Defendant. {Certificate of Service Omitted in Printing] 71 [Corrected Copy | IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R CHESAPEAKE BAY FOUNDATION, et al., Plaintiffs, Vv. GWALTNEY OF SMITHFIELD, LTD., Defendant. [Filed June 26, 1985] MEMORANDUM Before the Court is the question of the amount that ought to be assessed, in civil penalties, against defendant for polluting Virginia’s water in violation of the Clean 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 of about $980,000 in civil penalties, and that the Court should assess somewhere between $12,000 and $20,000. 72 Defendant also vigorously contests the Court’s subject- matter jurisdiction over this lawsuit. First, it argues that plaintiffs do not have standing to prosecute this action. Second, it argues that the statute does not au- thorize citizen suits against defendants who are not dis- charging unlawfully when the suit is filed. Following trial, defendant sought and received the Court’s leave to file a post-trial memorandum; about a month thereafter, defendant filed that memorandum. Plaintiffs filed a short response, and also had filed a trial memorandum on the day prior to trial. Several months later, defendant filed a motion to dismiss based on its argument that a continuing violation is required, which has been fully briefed. All the foregoing matters are now ripe for disposition. 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 Chesapeake Bay Foundation (CBF), a regional environ- mental group with over 19,000 members residing in the Chesapeake Bay area, including Virginia; and the Natu- ral Resources Defense Council] (NRDC), an environ- mental group ~~ 1 members throughout the nation, in- cluding over 800 members in Virginia. Defendant, Gwaltney of Smithfield, Ltd. (Gwaltney), is in the busi- ness of processing and packing pork products. It is a subsidiary of Smithfield Foods, Inc. (Smithfield Foods). Gwaltney’s plant, the operation of which is the subject of this lawsuit, is situated on the Pagan River near Smithfield, Virginia. In the course of its production, the plant discharges wastewater into that river. At all times material hereto, Gwaltney was allowed to discharge various pollutants from that plant into the river—within certain limits, as set out in a “National 73 Pollution Discharge Elimination System” (NPDES) per- mit." Such permits are issued pursuant to procedures and regulations under the Clean Water Act. See 33 U.S.C. § 1342. 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 reported these violations in its discharge monitoring re- ports (DMRs), as required by law.* Prior to October 27, 1981, Gwaltney was not responsible for the pollution dis- charges from the plant at issue here. Instead, ITT- Gwaltney, Inc. (ITT-Gwaltney) owned the plant and was responsible. Under ITT-Gwaltney as well as under Gwalt- ney, the plant repeatedly exceeded a number of its NPDES discharge limitations. Gwaltney acknowledges 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. The violations reported in Gwaltney’s DMRs form the basis of this action. Where a permittee is in violation of an NPDES discharge limitation, it is also “in violation of . . . an effluent standard or limitation under [the Act],” 33 U.S.C. § 1365(a)(1), which makes the per- mittee subject to citizen suits. Jd. For citizen suits under * NPDES Permit No. VA 0002844. ? Those pollutants are: (i) fecal coliform; (ii) chlorine (Cl,); (iii) total suspended solids (TSS); (iv) total Kjeldahl nitrogen (TKN) ; and (v) oil and grease. * Section 1318(a)(3)(A) of Title 33 mandates, among other things, that the Administrator of the Environmental Protectien Agency “require the owner or operator of any point source” to establish and maintain such records of effluent discharges and to make such reports as the Administrator may “reasonably require.” Currently, permittees under the Clean Water Act must submit DMRs. See 40 C.F.R. § 122.41(1)(4) (1984). Such reports are public information, by statute. See 33 U.S.C. § 1318(b) (2). 74 the Clean Water Act, Congress has authorized the district courts to assess appropriate civil penalties. 33 U.S.C. £ 1365(a). Such penalties may be as high as “$10,000 per cay of such violation.” 33 U.S.C. § 1319(d). DISCUSSION I. Standing. At the outset, the Court must dispose of defendant's contention that plaintiffs have no standing under either the Act or Article III of the Constitution. Standing is an element of jurisdiction over the subject matter. See, e.q., Warth v. Seldin, 422 U.S. 490, 494-95 (1975). Thus, if plaintiffs have no standing, then the Court may not proceed further. See id. Gwaltney contends that plaintiffs’ allegations are in- sufficient to establish standing for CBF and NRDC to sue in their own right. It then acknowledges that the allegations of standing in the complaint, taken alone, might be sufficient for CBF and NRDC to sue on behalf of some of their members. But Gwaltney argues that no such standing has been established because plaintiffs did not present evidence of standing at trial, even though Gwaltney denied plaintiffs’ standing allegations in its answer and Gwaltney’s counsel demanded prior to trial that plaintiff's counsel establish at trial that plaintiffs meet the Clean Water Act's standing requirements as articulated in Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984). Plaintiffs, on the other hand, argue that they have established standing to sue bo.h in their own right and on behalf of their members. As for stand- ing to sue for their members, they refer to the Court's findings in granting them summary judgment on the issue of liability, as well as to a number of affidavits they have filed at different stages of the litigation. 75 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, €.9., Sierra Club v. SCM Corp., 747 F.2d 99, 107 (24 Cir. 1984). An organizational plaintiff, such as CBF or NRDC, can establish “injury in fact” through injury to their members as well as through injury to the orgar®za- tion itself. See, ¢.g., Sierra Club v. Morton, 405 US. 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, eg., 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., 511 F.2d 809, 814 (D.C. Cir. 1975) (discussing stand- ing requirements under the Clean Air Act). 76 way at the summary judgment hearing, although it had raised the standing issue at the pleading stage.’ Indeed, Gwaltney failed to file any response whatsoever to plain- tiffs’ motion for summary judgment, despite the fact that two months had elapsed between the filing of plaintiffs’ motion and the hearing on it. In granting plaintiffs’ motion the Court specifically stated, in its findings of fact from the bench, that plaintiffs have standing to prosecute this action. Apparently, Gwaltney believes that any showing of standing that plaintiffs may have made previously is insufficient in light of a recent decision by the Court of Appeals for the Second Circuit, Sierra Club v. SCM, supra, 747 F.2d 99, construing standing requirements under the Clean Water Act. Gwaltney suggests that the case establishes a requirement that plaintiffs identify affected members in order to establish standing under the Act. The Court does not agree, however. In Sierra Club v. SCM, the issue pertaining to stand- ing before the Court of Appeals was whether the Sierra Club, solely on the basis of its “institutional interest in the preservation of the enviromnent,” could sustain “in- jury in fact” for standing purposes in a citizen suit under the Clean Water Act. See Sierra Club v. SCM, supra, 747 F.2d at 103. Writing for a unanimous panel, Judge Kearse rejected Sierra Club’s contention. After carefully reviewing the legislative history of the Act, she concluded that the Sierra Club could only establish stand- ing by showing actual injury within the meaning of Sierra Club v. Morton, 405 U.S. 727 (1972), and that the Sierra Club’s “institutional interest” was insufficient in that regard. /d. at 107. She furthe held that an * Gwaltney filed a document titled “Answer and Motion to Dis- miss,” in which it denied plaintiffs’ standing allegations in its “Third Defense.” The answer and motion were unaccompanied by any documents that might create a genuine issue of material fact as to plaintiffs’ standing, however. 77 organizational plaintiff can satisfy the actual injury re- quirement by “providing a concrete indication” that the organization or “one or more of its members” use the waterway into which the defendant discharges its wastes or would be adversely affected by the pollution of that waterway. Id. Despite defendant's suggestion to the contrary, Judge Kearse did not hold that a plaintiff organization must identify its injured members in order to provide the requisite “concrete indication.” It is true, of course, that the district judge had dismissed the complaint—at least in part—because the Sierra Club refused to identify any injured member. See Sierra Club v. SCM Corp., 580 F. Supp. 862, 865 (W.D.N.Y. 1981). Despite the contro- versy in the district court over Sierra Club's refusal to identify members, though—of which the Court of Ap- peals was well aware, see Sierra Club v. SCM, supra, 747 F.2d at 102—the Court of Appeals carefully avoided holding that an organization suing under the Clean Water Act must identify injured members in order to establish standing through them. Instead, Judge Kearse —noting that the Sierra Club had submitted an affidavit indicating merely that some of its members lived within a seventy-mile radius of the polluting plant—chose more general langvage to describe the requisite showing for standing: a concrete indication” that one or more mem- bers “used the | waterway involved) or would be affected by its pollution.” Plaintiffs here have satisfied this standard. The unopposed affidavit of plaintiffs’ counsel quoted supra, which indicates that members of plaintiffs’ organization use the river into which defendant dis- charges its wastes, is sufficient to establish plaintiffs’ standing under the Clean Water Act.* *In any event, plaintiffs did ultimately name members. In their response to defendant's post-trial memorandum, plaintiffs attached the affidavits of three affected members who indicated specifically how they used the Pagan River (or the Chesapeake Bay into which it flows), and how they are adversely affected by the pollution of the Pagan River. 78 Il. Continuing Violation. Gwaltney also argues that the Court has no jurisdic- tion over this suit because Gwaltney was not in violation of its NPDES permit when the complaint was filed, or subsequently. Gwaltney contends that the Clean Water Act’s citizen suit provision only confers jurisdiction where the polluter is engaged in an ongoing violation ; where the violation occurred entirely in the past, Gwalt- ney urges that there is no jurisdiction. Plaintiffs cuon- tend. on the contrary, that citizens can sue regardless of whether the polluter’s unlawful conduct was continuing at the time the suit was filed. The dispute is one of statutory construction. Gwalt- ney’s argument centers around the portion of the Clean Water Act's citizen suit provision that reads, in pertinent part: _.. any citizen may commence a civil action on his own behalf — (1) against any person .. . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter .... $8 U.S.C. $1265(a)‘1) ‘emphasis added). Gwaltney points out that the statute does not include the words “to have violated.” and argues that the statute therefore only authorizes citizen suits against polluters whose un- lawful conduct is occurring at the time the suit is filed. In analyzing whether Gwaltney’s position is correct, the Court begins with the familiar principal that it need not consider a statute’s legislative history where the statutory language itself is clear. See, ¢g., Ex Parte Collett, 337 U.S. 55, 61 (1949). Despite Gwaltney’s pro- testations to the contrary, the Court does not believe that the statutory language on which Gwaltney rests its argu- meat clearly supports Gwaltney’s position. Other courts besides this one have perceived ambiguity in the statutory tanguage at issue. See Student Public Interest Research Group of New Jersey, Inc. v. Monsanto Co., 600 F. Supp. 1474, 1476, (D.N.J. 1985); Sierra Club v. Raytheon, 22 Env. Rep. Cases 1050, 1054 (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 linger well after they occur. In addition to the ambiguity in the words “to be in violation” standing alone, other portions of Section 1365 suggest that Gwaltney’s proffered construction is not the only.—or the most—plausible one. Section 1365 states that: The district courts shall have jurisdiction . . . to apply any appropriate civil penalties under [33 U.S.C. § 1319/4) }. 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 in their unlawful conduct up to the time the complaint is filed. On the contrary, the absence of any such limita- tion implies that Congress intended to authorize citizen suits to recover civil penalties based on a polluter’s un- lawful conduct in the past, regardless of whether the polluter has ceased its unlawful conduct by the time the citizen suit is brought. In the Court's view, the statutory language, fairly read, suggests that the Act authorizes citizen suits for civil penalties based on unlawful con- duct that occurred in the past, regardless of whether a polluter is in compliance when the suit is brought. In view of the ambiguity of the statutory language, however, the Court has also reviewed relevant portions of the legislative history in order to better understand Congress's intent. The committee reports do not ex- pressly address the issue at hand one way or another. They do, however, note that the statute authorizes the recovery of civil penalties in citizen suits. The reports do not discuss any requirement that such suits must be based on unlawful conduct occurring at the time the suit is filed. See H. Rep. No. 911, 92d Cong. 2d Sess. 133 (1972). reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 at 820 (1973) ‘hereinafter “Legislative History”); S.Rep. No. 414, 92d Cong.. Ist Sess. 79, reprinted in 2 Legisia- tive History at 1497. As already referred to, the ab- sence of any discussion of such a requirement—in the context of acknowledging ihe 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: ... @ 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, in violation, whether the violation be @ continuous one, or an occastonal or sporadic one. 81 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 eliminate 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, e.g., Regan v. Wald, —— U.S. . , 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. A reading of the citizen-suit provision that would au- thorize suits for civil penalties against polluters for past 7 Gwaltney also quotes a remark of Senator Bayh in support of its position. Senator Bayh’s remark is as 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 Legisiative 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 wgs an inadvertent misstatement. The Court disagrees. Senator Bayh’s statement hardly contradicts Senator Muskie’s explication. 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 Leg’slative 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.N.J. 1985). 82 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. Aluminum 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 sucecss- 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, J., eoneurring) (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. 83 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 of 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 not answered by whether the plaintiff ultimately recovers in excess of $10,000. See, e.g., 14A C. Wright, A. Miller, E. Cooper, Federal Practice & Procedure § 3702 at 31-33, and cases cited (1985). Rather, the issue is whether the amount plaintiff stated in the 84 In light of the language of the Clean Water Act’s citizen suit provision, its legislative history, and its underlying policy goals, the court concludes that the Clean Water Act authorizes citizen suits for civil penal- ties for violations of the Act, regardless of whether the polluter is engaged in unlawful conduct at the time the suit is filed or afterward. A number of other courts have recently reached the same conclusion. See, e9., Monsanto, supra, 600 F. Supp. at 1476-77; Aluminum Company of America, supra, 585 F. Supp. at 853-54; Sierra Club v. Raytheon, supra, 22 Env. Rep. Cases at 1054; Student Public Interest Research Group of New Jersey v. Anchor Thread Co., 22 Env. Rep. Cases 1150, 1154 (D.N.J. 1984); see also Student Public Interest Research Group of New Jersey v. Tenneco Polymers, 602 F. Supp. 1394, 1398-99 (D.N.J. 1985); Facet Enter- prises, supra, 22 Env. Rep. Cases at 1145 n.1. 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 maintain 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 for civil penalties for past violations. Jd. at 396. This Court, respectfully, disagrees. First, the Court notes that the panel concluded the statutory language is not sufficiently ambiguous to raise any question about its proper meaning. See id. at 395. original claim satisfies the amount, and is made in good faith. See, e.g., Wiggins v. North Carolina Equit. Life Assur. Co., 644 F.2d 1014, 1016-17 (4th Cir. 1981). As Gwaltney recognizes, the test of good faith is whether it appears to be a “legal certainty” that the jurisdictional fact is not satisfied. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); Wig- gins, supra, 644 F.2d at 1016-17. But there was no certainty here— legal, factual, or otherwise—that Gwaltney’s system would correct one of the two major violation problems for which this suit was brought—until nearly one year after the suit was filed. 85 As discussed supra, however, this Court—and several others—have examined the language without being able to resolve its plain meaning with the same degree of certainty. Second, the Hamker panel reasoned that because the statutory scheme centers primary enforcement respon- sibility with the states and the Administrator of EPA, citizens are not authorized to sue polluters unless the polluter is engaged in ongoing unlawful conduct. Id. at 395-96. But this Court does not comprehend how the conclusion necessarily follows from the premise. For, even if the statute is construed to allow citizens to sue for past violations, primary enforcement responsibility remains with the states and the administrator: generally, citizens must first notify the states, the administrator, and the alleged polluter and wait sixty days te give public enforcement authorities the opportunity to act before proceeding. See 33 U.S.C. § 1365(b) (1) (A). The panel also reasoned that because the statute requires the citizen-enforcer to notify the violator—as well as enforce- ment authorities—of its intent to sue, the statute con- templates that a citizen loses the right to sue if the vio lator brings itself into compliance before the sixty days elapses, just as the citizen loses the right to sue if the governmental authorities commence prosecution in a court before sixty days elapses. Jd. at 396. This reasoning is unpersuasive. The statute expressly provides that pub- lie enforcement within the sixty-day period precludes a citizen suit, see 33 U.S.C. § 13865(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 by the violator carries the same consequences for citizen enforcement as initiation of a government enforcement action °. *The Court also notes that the committee reports, as well as the statute itself, do not indicate that one of the purposes of the 86 Finally, the Hamker panel reasoned that construing the provision to preclude citizen suits for civil penalties based on past violations would promote the goal of limit- ing the burden on the federal courts. But this Court is not persuaded that such a construction would ultimately reduce the federal judiciary burden. If such a construc- tion were adopted, citizen suit provisions would pro vide an incentive for compliance only in those specific cases where the citizen-enforcer actually files a notice of intent to sue and then a complaint. The threat of citizen suits would have little general deterrent effect. It is not unreasonable to presume that under such a sys- tem, noncompliance would be more widespread than un- der a system where it is clear that citizens can sue for civil penalties for past violations. If the number of citi- zen suits is related to the level of noncompliance—a rea- sonable assumption—then it may well be that the num- ber of suits actually filed per period of time would be greater under a system in which citizens cannot sue for civil penalties for past violations. In considering the persuasiveness of Hamker, this Court also notes that the Hamker panel did not address the legislative history militating against its construction of the statute. As discussed supra, the legislative his- tory corroborates the view that citizens can sue for civil penalties for past violations. Gwaltney also relies on City of Evansville, Indiana v. Kentucky Liquid Recycling, 604 F.2d 1008 (7th Cir. 1979), cert. denied sub nom Louisville and Jefferson County Metropolitan Sewer District v. City of Evans- sixty-day notice requirement is to give a violator the opportunity to come into compliance and avoid liability. See H. Rep. No. 911, 92d Cong., 2d Sess. 133 (1972), reported in 1 Legislative Histo. y, at 820; S. Rep. No. 414, 92d Cong., Ist Sess. 79-80 (1971), reprinted in 2 Legislative History at 1497-98. Rather, the sole purpose ap- pears to be to “encourage and provide for agency enforcement.” S. Rep. No. 414, 92d Cong., Ist Sess. 79 (1971), reprinted in 2 Legislative History at 1497. 87 ville, Indiana, 444 U.S. 1025 (1980). In that case, the Cou:t 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.” Id. at 1014. That remark, however, insofar as it can be said to address citizen suits for civil penalties for past viola- tions, 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 Pawtuxet Cove Marina v. Ciba-Geigy Corp., 21 Env. Rep. Cases 1393 (D.R.I. 1984), which Gwaltney also cites, relies 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 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 remark of the Seventh Circuit in City of Evansville, * 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 poin’ s plaintiffs argue. The case does reflect the understanding that tue 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 understanding 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. 88 arose in the context of whether a citizen enforcer may sue for damages. The Supreme Court, like the Seventh Cireuit, 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. Il. Maximum Liability. 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. Gwaltney has violated its “monthly average” permit limitations for several substances on a number of occasions. The “monthly average” of a substance re- flects the average amount (‘or concentration, where the substance 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 maximum daily amount allowed."' Gwaltney argues that "! The average and maximum permit limitations for four of the pollutants at iseve in this case read as follows on Gwaltney's DMR for May. 1984: (i) for TSS: 228.000 KG_D (‘daily average 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 civil penalties reads that: “any person who violates . . . any permit condition or limita- tion . . . 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. Violating 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. 19°4). 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- lieves it can be unjust.” To illustrate its point, Gwaltney 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); (ili) for TKN: 109.0000 KG/D (daily average over a month), 219.0000 KG/D (daily maximum); (iv) for oll 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. “4 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 « monthly limitation as thirty days of violation is contrary to the principle that penal statutes are to be construed strictly. See, 90 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 discha:ge, 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. 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. ¢.@., Commissioner of Internal Revenue o. Archer, 461 US. 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 £19,000 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 th 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 ty interrogatories do not preclude this Court from imposing appropriate penaties 91 able charge in a single day without incident—while a sub- stantial 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. average, every day of its discharges contributes to the , even of the discharges are within the average that the polluter needs to maintain in order to stay within the monthly limitation.” 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 “ Gwaltney also suggests ‘hat 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 por 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 im light of Gwaltney’s failure to introduce more accurate evidence to the contrary. 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- ated sections 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 USC. £1319/d). There Gwaltney'’s NPDES permit is passed under this subsection. Nor is that all of the limitations at issue in Gwaltney’s permit ze ; : 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. Detrer 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.” Id. 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 maximum 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 Detrer court intended—was that Section 1319/d) establishes a marimum daily pen- alty of $10,000 for violating the limitations on any given substance, not an absolute daily maximum. For ; 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 more than $10,000 in civil penalties for that day of viola- tion. They rely on dicta in a recent district court case. #e Id. har- con- idge that ain- Supp. otiffs trex day ffer- iola- re- ition urse. atiffs issue re- r the than se of struc- orizes 95 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 the legislative history and found several indications that Congress intended to authorize an absolute daily maximum. See Detrex, supra, 393 F. Supp. at 737. The Court need not elaborate further on this point, nor on the other reasons for this construction that Detrex discusses. Plaintiffs do not raise any per- suasive reasons for choosing their construction over the one that Gwaltney has offered and that the Detrex court and this Court find to be correct. Their primary argu- ment is based on the language of Section 1319(d) itself and the fact that the Amoco court, in dicta, suggested the same reading based on that language. As the Court has already demonstrated, however, that language is amen- 96 able to various other readings as well. Plaintiffs provide no legislative history in support of their position. And their primary policy argument is that deterrence is better effectuated by their position. This, however, is unclear. A maximum penalty of $10,000 per day may amount to a substantial deterrent against violations by ‘even the largest corporations where more than a few days of violation are involved, as will be come clear infra. The Court is satisfied that its construction of Section 1319(d) accurately reflects the intent of Congress. C. Maximum civil penalty applicable to Gwaltney. In light of the f6regoing principles for calculating days of violation, the Court is now able to determine the number of days for which Gwaltney is, in its view, subject to a $10,000 maximum penalty. The parties have stipulated to the number of violations, based on Gwaltney’s DMRs from November, 1981 to August, 1984. Copies of the DMRs themselves are also in evidence. The DMRs reflect which of the stipulated violations involve monthly limita- tions, and which ones involve daily limitations. The Court has summarized Gwaltney’s violations in Appen- dix A. During twenty-two of the thirtyhree months for which are in evidence, Gwaltney violated the monthly average for at least one substance. During these same months, Gwaltney almost always violated more than one daily maximum or monthly average limitation. But under the principles discussed above, Gwaltney is subject to no more than $10,000 per day of violation, regardless of how many violations occurred on that day. There were 653 days in those twenty-two months; * thus, there were 653 days of violation. For those days of violation, Gwalt- ney is subject to a maximum penalty of $6,530,000. 4 Actually, a total of 669 days are in the twenty-two months involved. The parties have stipulated, however, that during the last of those 22 months—May, 1984—no violations occurred after May 15. Accordingly, the Court has treated Gwaltney’s violation of its May, 1984 monthly average for TKN as involving only 15 days of violation. 97 In addition, Gwaltney violated daily limitations during five months when it reported no violation of monthly averages. In July 1982 it violaced two limitations; it also violated two limitations during each of the three months following. Finally, Gwaltney violated five daily maxi- mum limitations in February, 1984, making a total of 13 violations of daily standards during months when no violations of monthly averages occurred. The DMRs do not indicate on which day of the month a given violation occurred, however. Therefore, it is im- possible for the Court to discern whether any of these daily violations occurred on the same days. Conceivably, there were as few as seven different days of violation.” Plaintiffs have not demonstrated that each of these thirteen violations of daily standards occurred on differ- ent days. The Court nevertheless believes that it is reasonable to presume that each of these did occur on a different day. Gwaltney has contended throughout this litigation that it is subject to a maximum penalty of $10,000 for a given day of violation, regardless of how many violations oc- curred on that day. Gwaltney also has complete access to any relevant records, so that it could have presented evidence to show that any of the violations occurred on the same day, if such evidence indeed existed. In the absence of such evidence, the Court concludes that Gwalt- ney’s violations during those five months occurred on 15In July 1982, for example, there was one fecal coliform viola- tion and one chlorine violation. Those violations could have occurred on the same day, because tests for fecal coliform were performed three times per week, and tests for chlorine were performed hourly, according to the DMRs. Each of the two reported chlorine violations in August, September, and October, 1984, could have occurred on the same day because chlorine was tested on an hourly basis. In February 1984, the single TKN violation and the two fecal coliform violations could have occurred on the same days as the three oil and grease violations. Tests for all three substances were performed three days per week, according to the DMRs. 98 thirteen different days. These violations increase Gwalt- ney’s maximum liability in civil penalties by $130,000. Adding this to the maximum penalty for the months when Gwaltney violated monthly standards, $6,660,000 is the maximum civil penalty to which Gwaltney is subject. IV. Gwaltney’s Penalty. As the Court has already discussed, the penalty of $10,000 per day of violation authorized by Section 1319 (d) is a maximum penalty, not a mandatory one. The Court now faces the task of determining the actual pen- alty, within the statutory limits, that Gwaltney shall be assessed. The parties differ markedly on this point. Plaintiffs urge the Court to impose the statutory maxi- mum: here, as the Court has discussed, over $6,000,000. Gwaltney argues that a far smaller amount ought to be assessed: somewhere between $12,000 and $20,000. Despite their widely varying estimates of the appropri- ate penalty, the parties agree that the United States EPA’s civil penalty policy, see Environmental Protection Agency Civil Penalty Policy, [Federal Laws]-Env’t Rep. (BNA) 41:2991 (June 1, 1984) (hereinafter cited as “EPA Penalty Policy”), is an appropriate guideline for determining the amount of Gwaltney’s penalty. Neither of the parties argue that the policy binds the Court. Nor indeed does it. Nevertheless, both parties suggest—and the Court agrees—that EPA’s penalty policy provides a helpful analytical framework for arriving at a civil pen- alty. It is especially useful in light of the substantial maximum penalty that the statute authorizes, on the one hand, and the total absence of guidance Congress has provided in assessing penalties pursuant to Section 1319 (d), on the other hand. Cf. Clean Water Act § 311(b) (6), 33 U.S.C. § 1321(b) (6) (in determining the amount of the penalty for types of violations of the Clean Water Act not at issue in this case, the following factors shall be considered: the size of the business involved; the effect of the penalty on the business’ ability to continue; and the gravity of the violation). Finally, there are 99 few cases that explain in any detail how they arrive at a penalty amount under Section 1319/(d). A. The EPA Penalty Policy. The policy aims at two general goals: (i) deterrence; and (ii) “fair and equi- table treatment of the regulated community.” See EPA Penalty Policy, 41:2992-93. As for deterrence, the policy recognizes that both deterrence of future violations by the violator (specific deterrence) and by other regulated firms (general deterrence) is important. See id. at 41:2992. For deterrence purposes, the policy recommends a penalty that includes two components. First, it should include the “economic benefit of non-compliance”; other- wise, the violator and potential violators would perceive that it pays to violate the law, creating an obvious dis- incentive for compliance. See id. Second, the penalty should inc#ide an additional amount, which the policy characterizes as @ “gravity component.” If the penalty were limited to the economic benefit of non-compliance, regulated firms would find that they would have nothing to lose by non-compliance because a penalty for their violations would make them no worse off than if they had complied in a timely way. See id. The policy sug- gests that the gravity component reflect both the serious- ness of the violation and—where extensive non-compli- ance with a regulatory program exists in an area—an additional amount to promote general deterrence pur- poses. See id. Once an appropriate penalty for deterrence purposes has been estimated, the policy recommends that this “preliminary deterrence amount” be adjusted to ensure that the “regulated community” is fairly treated. See EPA Penalty Policy at 41:2992. The policy identifies a variety of factors that ought to be accounted for in arriv- ing at a final civil penalty. Such factors include the degree of willfulness or negligence involved, the degree of cooperation involved, the violator’s history of non- compliance, and whether the penalty would force the violator out of business. See EPA Penalty Policy at 41 :3000-02. 100 B. Gwaltney’s violations. Although the parties have stipulated to over 160 different violations invoiving five different substances, the Court shall consider two distinct compliance problems in arriving at Gwaltney’s penalty. Each problem related to a specific pollution control method at the plant. Inadequacies in one method or the other account for virtually all of the violations at issue here. 1. Chlorination problems. From November, 1981 to October, 1982, Gwaltney experienced problems with its chlorination process. These problems caused Gwaltney’s violations of its fecal coliform and chlorine limitations during that time. Fecal coliform, a type of microbe associated with human and animal feces, is a good indi- eator of the safety of water for drinking, swimming, and shellfish harvesting. Gwaltney’s permit includes both monthiy average and daily maximum limitations on its discharges of fecal coliform. Chlorine is a toxic chemical that the state requires Gwaltney to use—in appropriate concentrations—to kill fecal coliform. Chlo rine also kills other life forms where its concentration is high enough, however. Thus, Gwaltney’s NPDES permit imposes daily maximum as well as minimum limitations on the concentration of its chlorine discharges. From July, 1981 (before Gwaltney bought the plant) until October, 1982, the plant chronically violated its permit limits for fecal coliform and chlorine. These violations were due to both insufficient and excessive exposure of Gwaltney’s waste-water to chlorine. Gwaltney knew that its plant had a chlorine problem prior to purchasing the plant from ITT-Gwaltney in October, 1981. ITT-Gwaltney had taken the initial step of purchasing a new chlorinator, which Gwaltney believed would correct the chlorine and fecal violations. After a period of nearly one year from the takeover date, Gwalt- ney finally resolved the chlorination problems at its plant. At no time did Gwaltney seek outside assistance from independent consultants in analyzing the causes or the extent of its chlorination problems. 101 a. Economic benefits. The Court first considers the economic benefits that accrued te Gwaltney as a result of the delay in the plant’s having a chlorination system that would meet the chlorine and fecal coliform limita- tions. The Court feels compelled to ensure that Gwaltney receives no economic benefit whatever from its delay in having a properly operating chlorination system. Determining with precision a firm’s economic benefit from noncompliance is not a simple matter. As EPA’s penalty policy points out, there are at least three distinct types of economic benefits that a violator may enjoy as a result of its violation. See EPA Penalty Policy at 41:2996-97. First, by delaying the expenditure of funds on compliance, a violator obtains the use of the money for other purposes in the meantime. Second, a violator may also avoid some costs altogether—for example, the costs of maintaining and operating the pollution control sys- tem until it is implemented. Third, a violator may, in addition, obtain a competitive advantage as a result of its violation—for example, it may be able to offer goods at a lower price, thereby possibly increasing its sales and profits. While these different types of benefit are not difficult to understand in the abstract, determining their amounts is more complicated. Indeed, proving the extent of some of these types of economic benefits will often be impossible; thus, any objective formulation of economic benefits is likely to underestimate that benefit. The Court need not painstakingly determine such an amount, how- ever. The purposes behind including an economic benefit component in a penalty assessment are to ensure that the violator disgorges at least its economic benefit. while also providing some objective basis for at least part of the penalty assessment. In light of these purposes and the difficulty of demonstrating all elements of economic benefit, the Uourt shall incorporate any objective evidence to arrive at what it hopes is a rational estimate of Gwalt- ney’s economic benefit, resolving uncertainties in favor of a higher estimate. Gwaltney «ffered evidence addressing primarily the first type of economic benefit: the benefit accruing from delaying its expenditures. Gwaltney indicated that its net cost for the changes in the chlorination system was $11,560. This amount is undisputed. In order to deter- mine Gwaltney’s economic benefit from delaying its ex- penditure, one must also know the length of the delay and the value of not incurring that expenditure. Gwaltney attempted to demonstrate at trial that it could not have implemented the necessary improvements in the chlorination system any more than four months earlier than it actually did. Gwaltney argues that its economic benefit from delay should therefore be computed based on this four-month period. The Court, however, believes that the period of benefit for computing the eco nomic benefit of delayed compliance should run for the entire time during which the violator is out of com- pliance because of its chlorination problems: here, twelve months. The Court recognizes, of course, that Gwaltney could not have accomplished the necessary changes in- stanteously upon discovering the chlorination problems. Indeed, Gwaltney's suggestion that six months was an appropriate, reasonable period for implementing a fully complying chlorination system may be correct. But this does not change the fact that if the expenditures had been made in time to prevent any violations at all, then Gwaltney would have incurred al! the expenditures prior to the noncompliance period." The Court also notes that its approach for computing the benefit period comports with that of the EPA's penalty policy. See EPA Penalty Policy at 41-2996. Gwaltney argues that its actual rate of interest on borrowed funds during this period should be used to The fact that in the circumstances of this case another frm —ITT Gwaltney, rather than defendant—owned the plant at the time such expenditures would have been incurred does not alter this conclusion Presumably the cost of such improvements would have been reflected in the sale price that defendant would have paid for the plant. caleulate its economic benefit from delayed compliance. It adduced evidence that during the relevant period this rate was 13%. Plaintiffs, on the other hand, computed Gwaltney’s economic benefit from delay using a rate of 18.17%, which is the ten-year rate of return on equity earned by Smithfield Foods, Inc.—Gwaltney’s parent cor- poration. At least in these circumstances, the Court be- lieves that 13% —the actual interes’ rate Gwaltney itself paid on borrowed funds—is a more accurate basis for determining Gwaltney’s economic benefit. from delay.” Given Gwaltney’'s rate of interest, its period of delay compliance because of chlorination problems, and the Gwaltney because of the delay in expending funds on the chlorination system. That amount is approximately Plaintiffs cite Ohio ex rel. Brown « Dayton Malleable, Ine., 13 ERC. 2189, 2194 (Ohi Ct. CP. 1979), of'd, 498 NE. 24 120 penalty assessments under an Ohio water pollution statute, appar- ently no one contended that the defendant's own rate of interest ought to be used. Rather, the choice before the Court was between ™ Gwaltney's annual rete of return (13%) multiplied by the amount of investment involved ($11,560) multiplied by the number of years of non-compliance (10). In its proposed calculations, Gwaltney, like the Court, calculates its benefit from delay on the entire amount of investment involved $11,560. Gwaltney claims that this is « generous concession on ite part, because the money was actually exp nded over the course of the improvements, which while the calculation is based on the fiction that the money was «pent in a lump sum at the end of the improve. m nts— facilitating the computation but distorting the reality. The 104 ney’s ‘otal economic benefit, the Court has no basis for rationally arriving at a figure any larger. In view of the rest of the penalty that Gwaltney shall be assessed, however, the Court has no doubt that Gwaltney shall disgorge any economic benefit of its non-compliance. b. Gravity component. Gwaltney argues that there is no reason to impose a penalty with an adjusted gravity component of more than $4,900. Gwaltney'’s suggested gravity component covers all the violations at issue in this case, including its violations resulting from its chio- rination problems. The actual and potential environmental harm asso ciated with a violation is an important factor, under the EPA's penalty policy, in arriving at the gravity com- ponent. See EPA Penalty Policy at 41:2999. The Court agrees. In connection with the environmental harm of its fecal coliform violation, Gwaltney recognizes that the presence of fecal coliform has led the state to generally prohibit the taking of shellfish for human consumption from much of the Pagan River. Gwaltney attempts to minimize the seriousness of its fecal coliform violations, however, by pointing out that the state—in certain cir- cumstances—nevertheless allows oysters and clams from those same parts of the Pagan River to be sold for hu- man consumption in their uncooked state. Further, Gwaltney argues that the Pagan River's condition with respect to fecal coliform could not be improved for shell- fish harvesting even if Gwaltney constantly complied with the feca! coliform limitations in its permit. Gwaltney also attempts to minimize the seriousness of its fecal coliform violations by noting that the State has not abso- Court agrees that a fiction is involved, but disagrees that it distorts Gwaltney's economic benefits from delay If the expenditures had been incurred in time to improve the system before the violations occurred, it is reasonable to presume that each of the expenditures would have been incurred about «a ycar before it was actually in- curred. Thus, it ls appropriete to calculate Gwaltney’s benefit on the entire amount expended based on ome years (ime. lutely forbidden the discharge of fecal coliform; rather, the State has only limited such discharge. In the Court's view, Gwaltney trivializes the serious- ness of its fecal coliform violations. To begin with, an EPA summary of the effects of the fecal coliform indi- cates that increased levels of fecal coliform in waters used for recreational swimming and shellfish harvesting pose health hazards to human beings, and act as a medium of disease transmission for a variety of dis- eases." In light of this, the Court finds Gwaltney’s char- acterization of is violations as posing “no threat what- ever to the public health” to be nothing less than offen- sive. Further, the Court notes that Gwaltney’s fecal coliform violations were not de minimus. Gwaltney violated its daily maximum—by four to seven times the permitted amount—on at least six occasions, according to the DMRs; and during five out of the seven months when Gwaltney exceeded its monthly average for fecal coilform, it exceeded the monthly average by 58% to 150%. Fi- nally, the Court notes that Gwaltney experienced fecal coliform problems almost continuously from November, 1981 to July, 1982. It is true, of course, that the Pagan River was not a virgin stream before Gwaltney exceeded its permit limitations for feeal coliform; Gwaltney's fecal coliform violations were not responsible for spoil- ing the river. But the fact that a river already suffers from poor water quality hardly excuses a polluter'’s vio- lation. Indeed, in view of the fact that the Clean Water Act aims to restore the waters of the United States as well as to prevent the degradation of unpolluted waters, eee 33 U.S.C. $1251, violations that impede the restora- tion of water quality ought not to be treated lightly. Considering all these factors, the Court believes that the “grav.ty component” of Gwaltney’s penalty should in- clude $4,000 per day of fecal coliform violations arising ——— "This EPA summary is « joint exhibit to which the parties stipulated. has even been required to maintain a minimum level of chlorine in its effluent. Gwaltney also points out that ap- parently no fish kills on the Pagan River occurred during to the gravity component of Gwaltney’s penalty to ac- count for its chlorine violations. The gravity component should account for risk of environmental harm as well as for any actual environmental harm. During ten of the twelve months when Gwaltney experienced problems with its chlorination system, ‘t exceeded its maximum chlorine limitations on some seventeen occasions. Although most *” Gwaltney violated ite monthly average for fecal coliform in November and December, 1941. ond from February te June. 1982. it alee violated dally maximums on one occasion in January 1992 and on ome cocacion in July, 1992. Thies amounts te 215 dave of violation i Ee HR Hl CET pe ! (ie iit ; $ el th Ah ea r sf: pat a4 ts leit 1 HTN REHEAT rv aa nti Ry anil il linjs iat it +H thet 1th : iji33 Aes +b AH (its itt Hi + itt a 23 i i TITHE RH 109 It is reasonable, in the Court’s view, to conclude that at the very least Gwaltney would have exerted more effort to repair such a machine than it did to bring its dis- charges into compliance with pollution standards. Gwalt- ney acknowledges that the evidence supports the conclu- sion that it could have reduced the compliance time by 125 days. The Court agrees, and shall increase the pen- alty by $1,000 per day that Gwaltney could have elim- inated in correcting the problem. Gwaltney argues that its penalty should also be re duced because of its cooperation in controlling its chlori- nation problem.” It is apparently true that Gwaltney corrected its chlorination problems without the threat of a lawsuit from anybody. to prod it along. In that sense, Gwaltney was not uncooperative. But the Court finds it inappronriate to give Gwaltney credit for correcting vio- lations for which Gwaltney plainly knew it was respon- sible. Gwaltney’s final argument for reducing any penalty it will be assessed is its purported inability to pay a sub- stantial penalty. EPA’s penalty policy is, generally, not to request a penalty that is “clearly beyond the means of the violator.” See EPA Penalty Policy at 41:3002. Gwaltney characterizes its own “profit margin” as “ex- tremely thin.” It suggests that its penalty should be fashioned in light of this fact. The Court disagrees, be- ing unpersuaded that any penalty warranted by Gwalt- ney’s violations would jeopardize Gwaltney’s continued operation.” 22 Gwaltney also suggests that its cooperation is reflected by its self-reporting of violations, and intimates that under EPA's penalty policy this should result in a mitigation of its penalty. Gwaltney is legally required to report its violations, however see supra note 3. Thus, the Court shall not mitigate Gwaltney’s penalty on account of its self-reporting. This approach accords with EPA's policy. See EPA Penalty Policy at 41:3000 (“assuming such self- reporting is not required by law, such behavior should result in the mitigation of any penalty.”) (emphasis added). 23 Although Gwaltney’s income statement for the year ending April 29, 1984, reflects an after-tax loss of $247,000, this loss must = 110 In light of Gwaltney’s economic benefit, the gravity component, and appropriate adjustments, Gwaltney’s total penalty for the violations arising out of its chlori- nation problems is $995,500.** 2. Biological - treatment system. Gwaltney’s second source of compliance problems was its biological treat- ment system. Inadequacies in that system led to repeated violations of Gwaltney’s TKN limitations during the win- ter months early in 1982 and the winter months of 1982-83. Gwaltney also experienced violations of its per- mit limitations for TKN and other substances during the winter and spring of 1983-84, in connection with the start-up of its new biological treatment system. TKN is a nitrogen compound that can degrade a river by depleting its oxygen supply. Natural chemical and biological processes, involving TKN and bacteria in the river, transpire after TKN is added to a river. Those processes consume the dissolved oxygen in a river, to the detriment of many forms of river life. Gwaltney knew before it purchased the plant that its biological treat- ment system had resulted in TKN violations the previous winter. It did not take any steps of its own to address the problem until late May, 1982—well after it experi- enced TKN violations during the first winter that it was be considered in light of Gwaltney’s extraordinary loss during the same year of 1.8 million dollars on the disposition of a plant. Gwaltney is clearly earning a substantial dollar amount on its operations, regardless of whether its profit margin is “thin.” * This amount is computed as follows: —economic benefit : $ 1,500 —gravity-fecal coliform ($4,000 x 213 days of violation) : 852,000 —gravity-chlorine ($1,000 x 17 days of violation of maximum limit) : 17,000 —adjustment for delay ($1,000 x 125 days of delay) : 125,000 $995,500 111 operating the plant. Over the following two years, in conjunction with the advice and approval of a consulting firm and the State Water Control Board (SWCB), Gwaltney devised and implemented a variety of changes in its biological treatment system. It submitted a pro- posed plan to the SWCB on January 5, 1983, which the SWCB approved on May 31 of the same year. By mid- October, construction was completed. Although Gwaltney experienced a number of violations during the system’s start-up period, it experienced no violations after May 15, 1984, up to the time of trial in mid-December, 1984. Some experts did testify, though, that they were uncer- tain whether the new system would meet the permit limi- tations for TKN during the remainder of the winter. a. Economic benefit. As with its chlorination system, the only evidence about Gwaltney’s economic benefit from non-compliance concerns the value of delaying the neces- sary expenditures. Gwaltney’s evidence is that its ex- penditure amounted to $159,745. The Court’s computa- tion of Gwaltney’s economic benefit shall be based on this amount.” 25 Plaintiffs argue that Gwaltney’s benefit from delayed expendi- tures should be based on a much larger amount. They point out that Gwaltney’s consultants outlined a “permanent solution” to Gwaltney’s biological treatment problems, at an estimated cost of $506,000, and that Gwaltney chose instead to implement a modified version of the “interim solution,” which was considerably less expensive. Plaintiffs argue that Gwaltney'’s economic benefit consti- tutes the difference between the “permanent solution” and the amount Gwaltney actua.y expended. This aproach is incorrect. Gwaltney’s benefit from delaying expenditures is the benefit from delaying those expenditures that are necessary to achieve compliance. Gwaltney appears to have achieved compliance on the expenditures it has already incurred on its biological treatment system. Although some of the testimony suggests that the modifications Gwaltney made in its treatment may not result in compliance with its TKN limitations, the Court believes it would be too speculative to reach that conclusion on the present record. 112 The period over which a violator’s economic benefit should be computed runs from the date of non-compliance until the date of compliance, or the date on which com- pliance may reasonably be expected, as discussed above. The compliance problems arising out of the plant’s bio- logical treatment system commenced, for Gwaltney, in January 1982. They were not rectified until May 15, 1984." This is a period of two years and over four months, or 2.37 years. The rate at which Gwaltney benefited from the delay, as discussed supra, is 13%. Given such a rate, as well as the amount of expenditures involved and the period of benefit, Gwaltney’s benefit from delaying expenditure is $54,022.°" b. Gravity component. As mentioned supra, in connec- tion with chlorination problems, Gwaltney argues that the gravity component of its penalty for all its violations, including those caused by its biological treatment system, should not exceed $4,900, when adjusted. With respect to the numerous TKN violations resulting from the prob- lems with its biological treatment system, Gwaltney argues that the great majority were utterly innocuous from an environmental standpoint because TKN is not 26 The Court is aware that the evidence raises some question whether Gwaltney had permanently corrected its TKN problems by May 15, 1984, even though it experienced no further violations after that date; or whether instead Gwaltney would again experi- ence TKN violations during the coldest winter months. As indi- cated supra note 21, the Court believes that such a conclusion would be too speculative, given the present record. 27 This amount is based on yearly compounding, computed as follows: 1982: $159,745 x .13/yrxlyr= $20,767 1983: ($159 745+ $20,767) x .13/yrxlyr= 23,467 1984: ($159,745 + $20,767 + $23,467) x .13/yrx 37 yr = 9,811 TOTAL: $54,045 113 toxic, because the Pagan River is improving, and because most of the discharges occurred in the wintertime. Some of its points are relevant to penalty considera- tions, although Gwaltney overstates its case. Gwaltney correctly points out that the presence of TKN in a river does not affect human health, according to the evidence. But it does have undeniable implications for the river’s dissolved oxygen content, which is related to the environ- mental quality of the river.* While none of the evidence reflects specific environmental damage resulting from Gwaltney’s TKN violations, the Court does not believe that it should blind itself to those violations as a result. Nor does the Court believe that Gwaltney’s penalty should be mitigated because the Pagan River’s condition is generally improving. Gwaltney’s violations may have contributed to delaying that improvement. Compliance incentives would be undermined if polluters believed that their violations would not be treated seriously where environmental regulations have generated some improve- ment in the environment. The Court does recognize, however, that Gwaltney’s TKN violations during the winter months posed less environmental risk than summer violations. The process by which TKN depletes the river’s oxygen slows down substantially with the colder winter temperatures. Plain- tiffs point out that the Pagan River’s tidal nature may inhibit the flushing of TKN from the river—raising the possibility that even winter TKN discharges may lead to oxygen depletion during the warmer months. Neverthe- 2% Gwaltney also suggests that its TKN discharges have little effect on the environment because of the point on the Pagan River at which they occur. Testimony did indicate that the discharges are slightly down-river from a “critical point” for dissolved oxygen in a SWCB pollution model. But testimony also indicated that tidal action could nevertheless result in Gwaltney’s TKN discharges affecting that critical point upriver. Further, even if Gwaltney's TKN discharges do not affect the critical point, there is no evi- dence that they have no potentially adverse environmental impacts on other points in the river. 114 less, the risk is certainly diminished. In the Court’s view, fairness dictates that Gwaltney’s winter TKN violations should be treated less harshly than its summer TKN vio- lations. An appropriate penalty is $250 per day of viola- tion for TKN violations during the months of November through April. For violations during the remaining months of the year, a penalty of $1,000 per day of TKN violation is appropriate. c. Adjustments. An important factor is the willful- ness involved in a compliance problem. Gwaltney con- cedes that it could have begun addressing the problems in its biological treatment system substantially earlier. One major delay was that Gwaltney did not contact a consultant immediately upon experiencing unexpected TKN compliance problems in the winter of 1981-82; rather, it waited until late May, 1982, to do so. Gwalt- ney has submitted evidence that this—and other unneces- sary delays it could have prevented—totaled 283 days. The Court concludes that this number is a reasonable approximation. Gwaltney’s penalties should be adjusted upward for each day of these controllable delays, just as its penalties were adjusted upward for the controllable delays in implementing a properly functioning chlorination system. The adjustment should not be as substantial, however, because the violations resulting from the problems in the biological treatment system appear to be less serious than those resulting from the chlorination problems. Further, there do not appear to be any human health implications from the poorly functioning biological treat- ment system, unlike the situation with the malfunction- ing chlorination system. In the Court’s view, this makes the controllable delays in implementing a properly func- tioning biological treatment system less culpable. The Court concludes that an amount of $250 per day of delay in addressing the problems with the biological treatment system is an appropriate adjustment to the penalty. 115 The Court believes that Gwaltney’s penalty should be adjusted downward as well as upward due to the amount of willfulness involved in the violations arising out of its biological treatment system. According to the evidence, Gwaltney’s violations after starting up its new system were largely uncontrollable; there is no way to start up a biological treatment system without violations. A bio logical treatment system is apparently the best sort of system, overall, for a plant such as Gwaltney’s. There is no evidence that Gwaltney’s start-up period was greater than one would expect. The Court shall therefore account for the violations of Gwaltney’s various permit limita- tions during its start-up period by assessing $50 per day per violation of the limitations on any substance, instead of the higher amounts discussed supra. As indicated in the Court's discussion of Gwaltney’s chlorination problem, Gwaltney also seeks to have its penalty adjusted downward to account for its cooperation in resolving its problems prior to litigation, and for its purported inability to pay. The Court has already re- jected those arguments supra, and it need not address them again here. In light of the foregoing discussion, Gwa!tney’s penalty for the compliance problems stemming from its biological treatment system is $289,822. Appendix B elaborates the computation of this amount. CONCLUSION Having determined that Gwaltney shall be assessed a civil penalty of $289,822 for violations arising out of the problems with its biological treatment system, as well as $995,500 for violations arising out of its chlorination system, the Court shall impose upon Gwaltney a total civil penalty of $1,285,322. An appropriate order will issue. s [MMegible] . United States District Judge Date June 26, 1985 116 _ — 28/21 = = 28/11 —_ —_ 28/01 — = — —_ _— 28/6 —_ = 28/8 — = o8/L if —_ if — _— 28/9 L 8}! Jnoqe way Suyjpnsuod sjoeju00 AsuyeMms) : Z8/AB a}e])} — — 28/¢ — = 28/P — = 28/8 28/3 — — 28/T —= —_ 18/21 = —= 18/TT | wuectn es | | | ["swiajqoid wy pentagon ih v or g HH HMO eM (*xeul (‘uru (‘xeuw (“xeu (‘3AB (“xeul (‘BAB (-xeur (‘3aR Aep) Aep) Aep) Aep) ‘oul ) Aep) ‘oul) Aep) ‘oul) (10) (D/O) (94) (NML) (SSL) aulo[yy) asta WLIOJ TION uaZOI}IN SPpI[Osg pue [IO [B99 Tyeplely [eo], papuedsng [e401 PezB[OlA WOTZe}IWIY] puv paafoauy aouvysqng yuo, ‘P86 ‘TE WNBny oO [gE ‘T sJoquiaAoN woz ‘(saraed Jo uoneindys puke sywd uo paseq) PPEZOOOVA ‘ON WUE SAGMN JO suorzEOrA s,AouqEMDH V XIGNUddvV 117 “PAVPULIS OULIO[YS TANUITUTU OY} JO SUOT}BIOLA JO JaqUINU SIG} SBI] 78 , ‘PAVPULS BULIO[YD WNUITXBUL 94} JO SUOT}BIOIA JO JaqUINU STY} {SOUT 4B » a 91 & &3 8 fo.) mn N & Ta}BM 23835 I ["peqya[duiod st wiaysAs yUeUI}BeI} [BOLZO[OIq Mou —_ — l — Or 8 [‘uvjd s,Aouyjems saaoiddy Sn A oon oe | p ere FE | I if Sse ei I I a I I "IVLOL 58/8 08/L 08/¢ 08/P 68/8 08/2 b8/T €8/Z1 68/11 sAsuzyeMy :$8/81/0T] I €8/ 01 €8/6 €8/8 €8/L €8/9 GOMS *€8/18/9] €8/¢ €8/P €8/ 68/6 €8/T ((HOMS) prvog [ozjU0H 84} 0} Wajsds JUDUIZVII} [VOITZO[OIG 831 Butaoadut soz uvjd szrwiqns Asuyemy : ¢g/G/T] 118 APPENDIX B Penalties for Gwaltney’s violations arising from its inadequate biological treatment system. —economic benefit: $ 54,022 —gravity component: —pre-start-up TKN violations @ winter '81-'82: 90 days x $250/day = 22,500 @ summer '82: 30 days x $1,000/day = 30,000 @ winter '82-’83: 151 days x $250/day = 37,750 @® summer '83: 61 days x $1,000/day = 61,000 —start-up violations: #ncluding downward adjustment because start-up is involved) 296 days (199 days TKN, + 61 days TSS, + 33 days fecal coliform, + 3 days oil & grease) x $50/day = 14,800 166,050 @ further adjustments: @ delay: 283 days x $250/day = a 70,750 TOTAL: $289,822 119 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION Civil Action No. 84-0366-R CHESAPEAKE BAY FOUNDATION, et al/., Plaintiffs, Vv. GWALTNEY OF SMITHFIELD, LTD., Defendant. [Filed June 26, 1985] JUDGMENT ORDER For the reasons stated in the memorandum of the Court this day filed and deeming it proper so to do, it is ADJUDGED and ORDERED as follows: Defendant’s motion to dismiss be and the same is hereby denied. Defendant Gwaltney of Smithfield, Ltd., is declared to have been in violation of the Clean Water Act, 33 U.S.C. § 1311 and 1342. Defendant is mandatorily enjoined until the further order of the Court to provide plaintiffs with a copy of all reports said defendant submits to state or federal gov- ernment relating to its NPDES permit. Said reports are to be submitted to plaintiffs simultaneously with each filing. Defendant shall pay civil penalties in accord with the Court’s memorandum in the sum of $1,285,322 with in- terest from this day forward; counsel for the respective 120 parties shall meet and confer within ten (10) days of this date in an effort to agree on appropriate counsel and litigation fees to be paid by the defendant to the plaintiffs. Failure to reach agreement will result in the Court’s setting such fees and litigation costs as are war- ranted and supported by affidavits. In the event of failure to agree, appropriate affidavits should be filed with the Court no later than twenty (20) days from this date. Let the Clerk send copies of this order and the accom- panying memorandum to all counsel of record. /s/ (Illegible] United States District Judge Date June 26, 1985 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1079%3A09. Public record. Not legal advice.